KARLA GNANASEGARAM sued the Allianz Insurance Co. for constructive dismissal and punitive damages. In her written pleadings, she alleged systemic racism against non-caucasian employees as a background for the individual treatment she experienced herself.

Lawyers for the employers argued in the trial court that anything not pertaining specifically to her own employment was irrelevant. The motions judge agreed and struck out those parts of the pleadings. The issue is an important one, because it determines whether the plaintiff is allowed to examine the employer's entire H.R. records to establish a race-based pattern and motive.

Ms. Gnanashgaram appealed to the Court of Appeal for Ontario. In it's decision released today (link above), the court allowed her appeal. It is, I believe, an important precedant.

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... She brings this action against the defendant seeking damages for breach of her contract of employment and for punitive damages. Paragraph 17 of her statement of claim provides:

17. The plaintiff further states that Allianz breached an implied term of the employment contract that the plaintiff would be employed without discrimination on the basis of race. The plaintiff, a woman of colour, applied for three internal promotion positions while she was employed at Allianz and, although in each case she was the most qualified candidate, the position was granted to a Caucasian woman (see paras. 7, 9 and 12 above). Without restricting the generality of the foregoing, the plaintiff states that the discriminatory conduct of Allianz is evidenced by the following:

(i) Historically the Company has systemically discriminated against employees of colour by invoking a “slow track” for promotion that is not invoked for Caucasian employees;

(ii) The Company promotes Caucasian employees notwithstanding the existence of applicants of colour with superior qualifications;

(iii) The Company discriminated against the plaintiff on grounds of race in her applications for internal promotion on three occasions, where the position applied for was granted to a Caucasian employee of lesser qualifications; ...

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[10] For the purposes of pleading discriminatory conduct as a basis for a wrongful dismissal claim I see no principled basis for distinguishing between allegations of direct discrimination aimed at the plaintiff and allegations of systemic racism which target a class or group of which the plaintiff is a member. In either case the allegation is one of discrimination against the plaintiff offered to support the wrongful dismissal claim.

[11] It is important I think to recognize the difficulty in proving allegations of race discrimination by way of direct evidence. As others have noted, rarely are there cases where one can show by direct evidence that discrimination is purposely practised.

[12] The motions judge expressed concern that:

… the plea as it stands would be a wholesale investigation of all of the personnel files of the defendant …

[13] I am satisfied that the Rules of Civil Procedure and specifically those which relate to the ability of the Defendant to require particulars, and which govern the scope of both documentary and oral discovery are adequate to meet any concerns about the breadth of these pleadings. Further, the defendant always has the option to move for a stay of the action on the basis that the Human Rights Commission is the more appropriate forum in the particular circumstances.

[14] In my view the motions judge erred in striking out paragraphs 17(i), (ii) and the second sentence of paragraph 17(iv). I would therefore allow the appeal and set aside paragraph 1 of the motions judge’s order made October 3, 2003.

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