LESSONS FROM LATIF

GUIDANCE ON THE USE OF SOCIAL SCIENCE EXPERT EVIDENCE IN DISCRIMINATION CASES

Abstract

The Supreme Court of Canada’s decision in Latif is important not only for its clarification of the test for establishing prima facie discrimination in human rights cases, but also for its guidance on the use of social science expert evidence in discrimination cases.

This article examines the Supreme Court’s decision in Latif, with a particular view to identifying lessons for applicants seeking to establish discrimination via social science expert evidence. In particular, we argue that litigants adducing social expert evidence should ensure to: (a) carefully explain the relevance of the social science expert evidence and link the social science expert evidence to specific material issues in the case; (b) spell out the chain of inferences they wish to draw from circumstantial evidence and explain how the expert evidence increases the strength of those inferences; (c) link the expert evidence to the respondent’s lack of a justification; (d) address why expert evidence on a material issue is unavailable (if that is the case); and (e) consider adducing statistical evidence of discrimination when possible.