Interesting case, which seem always to follow Professor Attaran. And while “some of my closest friends…” arguments can hide explicit or unconscious bias, one needs to assess the context of the remarks and the actual behaviour of the person involved.
An unfortunate side effect of this case is that it provides a disincentive for public office holders to share more of their thinking:
The former head of Canada’s human rights watchdog may have left the door open for an appeal of one of his final rulings by taking the time to make clear his views on the topic — and allegations — of “unconscious bias.”
In doing so, he opened a rare window, observers say, into the private thinking of an adjudicator — one that may now become the subject of scrutiny before the courts.
In July, David Thomas, the former chair of the Canadian Human Rights Tribunal, dismissed a complaint against the Immigration Department.
Thomas also took the unusual step of including a seven-page addendum with his 109-page decision. In those extra pages, he addressed the fact that he had been accused of unconscious bias during some heated exchanges at the hearing.
“I feel the need to speak on the record from a personal perspective,” Thomas wrote. “Allegations of racial bias are very toxic in today’s world. The mere allegation of such impropriety carries with it significant stigmatization.
“It is often very difficult for the accused to achieve redemption because the allegation, though difficult to prove, is also quite difficult to disprove. My personal reputation was impugned by Dr. Attaran’s allegation, so I wish to reply to defend myself.”
The case Thomas was hearing centred on a human rights complaint brought by Amir Attaran, a University of Ottawa law professor and an American-born Iranian.
In 2009, Attaran had applied to sponsor his aging parents, both U.S. citizens, to Canada under the family class immigration program.
The next year, he complained to the Canadian Human Rights Commission, claiming the Immigration Department discriminated against parents and grandparents by delaying the processing of their applications based on age, race, family status and national/ethnic origin.
It was taking immigration officials, at the time of the complaint, 42 days to screen the sponsors of spouses and children — but 37 months for those who wanted to bring their parents and grandparents to Canada.
After some legal wranglings and delays caused by COVID-19, Attaran’s complaint was heard in 2021 by Thomas, who left the tribunal later that year but continued to preside over the case.
Thomas said in dismissing the complaint that both Attaran and the commission, as a party at the hearing, failed to establish a “prima facie” case demonstrating “adverse” differential treatment in the provision of a service by the Immigration Department.
The commission is mandated to promote human rights through education, research and policy development, and is responsible for screening human rights complaints and referring them to the tribunal, the independent body responsible for hearing the cases.
The tribunal ruled in favour of the government’s arguments that the delays in processing parent and grandparent sponsorships were caused by Canada’s annual immigration levels plans and the immigration minister’s instructions — neither of which is considered “a service” under the Canadian Human Rights Act.
While the process for parents’ and grandparents’ applications may be different from spousal sponsorships, the tribunal dismissed the allegation that the practices were discriminatory.
That was the ruling. Then came the addendum.
In it, Thomas referred to Attaran’s “insinuations” of bias, including a suggestion that he had given preferential treatment to a government witness because the adjudicator and the government witness were both white men, rather than to the complainant’s expert witness, who was female and Asian.
Thomas also made reference to an incident during the hearing in which he called out the “mannerisms” that Attaran demonstrated as others spoke — rolling his head back, mock-laughing and throwing his face into his hands — that prompted the complainant to raise his concern over the perception of bias.
“I honestly feel it gives rise to an apprehension of unconscious bias. I have spent my entire working life, as a minority person, being told I should speak differently, I should behave differently, it is not something I welcome,” Thomas quoted Attaran in his addendum.
“And I am unhappy that it has happened here and from somebody I respect, as I very much do you. The case law requires me to put notice of an apprehension of bias on the record when it happens.”
Attaran did not ask the adjudicator to recuse himself.
Although Thomas in his decision recognized Attaran had the “protected characteristics” under the human rights act, he said he did not observe the complainant to speak with an accent or differently from any North American.
“I have only seen him on a video screen. He does not even appear to me to be a visible minority. Perhaps it might be different in person. I also highly doubt that I have a subconscious bias against people with a Persian ethnic background,” Thomas continued.
“Some of my closest friends are from Iran, including my college roommate who has remained a lifelong friend and participated as a groomsman at my wedding. In the absence of a motion for my recusal, I did not view the allegation as being serious. I perceived it more as an attempt to intimidate me, which it did not.”
Thomas went on to trace unconscious bias to the “controversial” implicit-bias test developed by researchers 30 years ago that he said failed to meet “the accepted standard of consistent test results” and suggested the implications to discrimination were not “supportable.”
“While the complainant may argue that the respondent is discriminatory due to the unconscious bias that is unseen, the respondent is equally open to argue that the complainant is delusional and seeing discrimination where it doesn’t exist,” Thomas wrote.
“Neither of these arguments are helpful to the adjudicator.”
In an interview, Attaran said he did not ask Thomas to recuse himself because he believed the comments on his “mannerisms” were a lapse of judgment.
Attaran defended his own demeanour at the hearing, saying cross-examinations can be unpleasant because no one likes to have their evidence pierced. But he took issue with Thomas’s claim that he couldn’t be biased against Iranians.
“This is basically like saying I can’t be a racist because I have a Black friend,” said Attaran. “I am not calling Mr. Thomas a racist, but I am saying that his approach on unconscious bias and denying that I am a racial minority person is something a racist might do.”
The human rights tribunal refused to comment on the case, but said its adjudicators are independent decision-makers.
Thomas declined the Star’s request for interview, saying he will let the decision speak for itself.
“It would be highly inappropriate for me to make any comments about it at this time,” Thomas said in an email. “Decision-makers avoid speaking about their decisions while under review lest their comments be construed as supplemental reasons or something else that might interfere with the process which must run, undisturbed, through the courts.”
Generally, the court system is of the opinion that it’s difficult to prove bias against a tribunal adjudicator and that one must rely on surrounding circumstances to make any determination, because it’s impossible to get into the decision maker’s mind.
But what makes this human rights tribunal decision unusual — and potentially disputable — is that the adjudicator laid out his way of thinking and response in the seven-page addendum.
“The court said it’s difficult to get into the (person’s) state of the mind,” Caroline Carrasco, senior counsel of the Canadian Human Rights Commission on this case, said in an interview.
“I’m saying to you, though, I haven’t seen anything like this. It’s unconventional.”
She said that through the addendum: “We have an opportunity to get the personal perspective of a decision-maker on the issue of unconscious bias and his thoughts about the complaint.”
The human rights commission told the Star it’s appealing Thomas’s decision because the case touches on racial bias, systemic discrimination, the definition of service and the rights of older immigrants as they navigate Canada’s immigration processes.
Both the commission and Attaran, representing himself, have asked the Federal Court to overturn the tribunal decision, arguing that it was not transparent, intelligible and justified. They want the case referred back to the tribunal for reconsideration.
Multicultural Meanderings 
