Category: Employment Discrimination

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Employment Discrimination

What Are Your Options For Your Workplace Discrimination Claim?

It is difficult to experience discrimination at your workplace, as it is where you spend most of your time. Your workplace ought to be an environment free of discrimination. Your discrimination claim may need to escalate to litigation at a certain point. It is important to become familiar with the different avenues for making a workplace discrimination claim, such as through a civil proceeding or the Human Rights Tribunal in Ontario. Certain procedural rules dictate which options may be available to you or not. 

This post will discuss the different processes for a workplace discrimination claim. We will also discuss the case law on how the court may determine which options are available for your claim. This will be helpful for employees considering making a claim of discrimination by their employer. Finally, we’ll address important takeaways from using different litigation avenues, how they interact, and how they would impact your discrimination claim.

Civil proceedings – employment law claim 

One option is to commence civil proceedings for an employment law claim. This could be a claim for wrongful dismissal. One could claim the employer was discriminatory and engaged in ongoing bad-faith conduct. For example, if an employer refuses to accommodate a disability. This could also be related to how the employer terminated the employee. An employee may claim damages for an employer intentionally inflicting mental distress on the employee. The employee may be able also to claim lost wages. 

Civil proceedings would be filed at the Supreme Court level and follow the Ontario Rules of Civil Procedure. 

Human Rights Tribunal 

Another option is to go through the Ontario Human Rights Tribunal. The employee would need to claim that the employer breached the Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”). The Code applies to employment scenarios and provides protection on the following grounds:

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Receipt of public assistance (in housing only)
  • Record of offences (in employment only)
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation.

The Human Rights Tribunal of Ontario (“HRTO”) deals with discrimination under the Code. For applications under the Code, the HRTO has its own Rules of Procedure to be followed. These are separate from the Rules of Civil Procedure for a Supreme Court matter described above. 

A claim through the HRTO is narrower in scope compared to civil proceedings for wrongful dismissal or other related claims. 

Can I make claims in both civil proceedings and the Human Rights Tribunal?

Making claims in both civil proceedings and through the Human Rights Tribunal is possible. However, in most cases, some rules do not allow one to make claims in both arenas. 

According to s. 34(11) of the Code: 

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if:

(a)A civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement, and the proceeding has not been finally determined or withdrawn; or

(b)A court has finally determined the issue of whether the right has been infringed or the matter has been settled.

This means that if an employee has also started a civil claim seeking relief under s. 46.1 of the Code, then the HRTO will hear different matters. 

Under s. 46.1 of the Code:

Civil remedy

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders or both:

1.  An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2.  An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.  2006, c. 30, s. 8.

This means that if a party has already claimed that their human rights have been infringed under the Code in their civil proceeding, the civil court (i.e. the Supreme Court) has jurisdiction to order compensation for injury to their dignity, feelings, self-respect, or other related losses. This is meant to prevent duplicate court and HRTO proceedings if both refer to breaches of the Code. 

The court has found that it would lead to procedural unfairness and an abuse of process if the respondent was required to defend themselves twice for the same issues and facts. The claimant is also not permitted to claim double damages. In particular, the HRTO may conclude that a claim for infliction of mental harm and/or moral damages in the civil matter is the same as compensation sought before the HRTO. 

Even if a party does not explicitly claim s. 46.1 in their civil matter, the HRTO may still find that s. 34(11) applies and will not hear the matter. If the facts and issues in the civil claim are essentially the same as the HRTO application, then the HRTO will not hear the matter. 

It is, therefore, rare for the HRTO to hear a matter when a related civil matter has commenced. However, it is still possible for the HRTO to hear a matter that has commenced in civil court if it involves the same facts but the issues are distinct. 

In the case Smith v Sears Canada Inc, 2010 HRTO 1834, the court found that while the two claims involved the same facts and events, the issues claimed were distinct. The civil claim did not allege discrimination, and the damages claimed were not related to discrimination. Also, the HRTO found that her human rights claim involved discrimination of a systemic nature, which would not be addressed in her civil proceeding. Therefore, the HRTO concluded that they had jurisdiction to hear the matter, as s. 34(11) did not apply. 

Key Takeaways 

While it is possible to make your claim in both Supreme Court (i.e. a civil matter) and the Human Rights Tribunal, the HRTO may decide not to proceed with your claim if the civil matter is essentially making the same claims on the same set of facts. It is possible if the HRTO does not hear the human rights claim, for some remedies to be left out of the equation. Therefore, it is important to carefully consider with an experienced lawyer how to structure one’s claim to fit their needs best, as there could be significant overlap in civil and human rights claims. The court and HRTO are careful to ensure no duplicated proceedings as they are considered procedurally unfair for a respondent. 

Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination Claims

Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues that arise from workplace discrimination and termination. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims. Haynes Law Firm also assists employers in avoiding liabilities arising from terminations not permitted by the legislation. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.

To book a consultation, please contact us online or by phone at 416-593-2731.

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Employment Discrimination Human Rights in the Workplace

Racial Discrimination Or Innocent Error?

Employees have remedies available if they have been the victim of discrimination at work. For example, if they have been treated adversely due to a protected ground, they may be able to apply to the Human Rights Tribunal of Ontario (HRTO).

One such protected ground is race. But how do you show that race was a cause of the adverse treatment experienced? This article looks at how the HRTO makes such determinations concerning the recent decision in the case of Querobin v Toronto District School Board.

The Human Rights Code prohibits racial discrimination 

The Ontario Human Rights Code (Code) prohibits discrimination on certain grounds in employment. These include race, ancestry, place of origin, colour, ethnic origin, citizenship and creed.

Under the Code, prohibited discrimination can take a variety of forms. In addition to direct and indirect discrimination carried out through another person or organization, the Code generally outlaws constructive discrimination. This refers to rules or practices that unintentionally single out a group of people and treats them unequally.

What is racial discrimination?

The Ontario Human Rights Commission’s policy and guidelines on racism and racial discrimination say that there is no fixed definition of racial discrimination but note that it could be viewed as:

“… any distinction, conduct or actions, whether intentional or not, but based on a person’s race, which has the effect of imposing burdens on an individual or group, not imposed upon others or which withholds or limits access to benefits available to other members of society.”

It explains that racial discrimination can take the form of stereotyping, overt prejudice, racial profiling or subtle discrimination, such as differential management practices, assigning disproportionate blame or characterizing normal communication as rude or aggressive. 

It also occurs at an organizational level through systemic discrimination, which refers to patterns of behaviour, policies or practices that are part of the organization’s structures and which create or continue a position of relative disadvantage.

How can you prove racial discrimination?

In proceedings before the HRTO, establishing discrimination can sometimes be contentious. Was the adverse treatment due to the employee’s race or just because of some other innocent explanation?

The person who brings the complaint needs to prove a “prima facie” (that is, apparent) case of discrimination. If they can do so, the employer needs to provide a non-discriminatory explanation for the conduct if they are to rebut the employee’s case.

To establish a prima facie case of discrimination, the employee needs to show:

  • that they are a member of a Code-protected group;
  • that they were subjected to adverse treatment; and
  • that the Code ground (for example, race) was a factor in the alleged adverse treatment.

Importantly, there needs to be a nexus between the employee’s race and the relevant conduct. The employee does not need to prove that the employer intended to discriminate, but a mere possibility of discrimination is not sufficient – it needs to be proved on the balance of probabilities. 

Employee claimed racial discrimination after his temporary assignment was terminated 

Turning to the recent decision of the HRTO, the applicant is a Filipino person employed by the Toronto District School Board as a secondary school occasional teacher. 

He claimed that his employer terminated a temporary assignment at a secondary school and gave it to another teacher of a different race. He argued that this constituted discrimination because of race, place of origin and ethnic origin.

The employer offered an innocent explanation unrelated to race, claiming that the employee was removed because he lacked the skills needed. 

The employee was given the wrong lesson plan

The applicant accepted a five-day assignment to teach a computer course to students with special educational needs. 

At the start of each day, an administrative assistant provides the occasional teacher with a folder that contains the lesson plans and other information needed to conduct the class. On this particular day, the employee was not given the correct lesson plan containing the link needed to access the computer program so he could not successfully teach the course.

The assistant then cancelled the applicant’s assignment. The applicant argued that the assistant intentionally gave the incorrect lesson plan so that he would be replaced.

The employee had not established a prima facie case of discrimination

The HRTO adjudicator explained that the applicant had not given any evidence that the other teacher was selected due to their race or that the assistant was biased towards teachers of particular races. 

The applicant knew that he did not have the correct lesson plan and did not take steps to fix this. There was a clear administrative error but no evidence of a conspiracy to remove him from the assignment. 

The adjudicator noted that direct evidence of racial discrimination may be difficult to obtain, so it may be necessary to draw inferences from circumstantial evidence showing race was a factor in the conduct. The adjudicator could not draw such an inference in this case:

“However, I find in this Application the applicant has not provided circumstantial evidence to show that the decision to terminate his assignment was based, at least in part, on his protected grounds. It is my view that the applicant, failing to understand why he was unsuccessful in the assignment, speculated that it was due to a reason such as his race and ethnicity, that was beyond his control.”

While the situation was unfair, the applicant had not established a prima facie case of discrimination. The employee’s application was dismissed. 

Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination 

Haynes Law Firm represents both employees and employers in all types of human rights violation claims. We represent employees that have experienced discrimination and harassment, helping them to build strong cases by gathering the necessary circumstantial evidence to show all the factors at play when an employer treats them adversely. We also help our employer clients defend baseless claims and manage performance issues. Please contact us online or call us at 416.593.2731 to schedule a consultation.

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Employment Discrimination

Discrimination And Wrongful Dismissal – Where To Bring My Claim?

Given the presence of various courts and tribunals in Ontario, it can be confusing to understand all the options relating to where to bring a claim if you have been the victim of discrimination or harassment and have been terminated. 

This article looks at some of the options and notes one of the risks – if you bring a claim in court, you may not be able to file an application with the Human Rights Tribunal of Ontario (HRTO). 

As always, please contact an experienced employment lawyer for advice on the best options for your circumstances.

Human rights tribunal versus court 

We’ve written about some of the options available to employees who have experienced job discrimination and been terminated or constructively dismissed. The discrimination and the termination might be the same act (that is, the termination was discriminatory) or separate acts (for example, discrimination led to the employee ‘resigning’ or being constructively dismissed).

The Ontario Human Rights Code (Code) specifically prohibits discrimination on certain grounds in employment. Filing a complaint with the HRTO or a claim through the court system are two common options. Similar options are available for federally regulated employees.

We would be happy to discuss why an employee might choose one route over the other. It may depend on what the employee tries to achieve by bringing the claim. For example, while a civil court claim is generally more costly but potentially offers greater financial compensation if successful, proceeding by way of a tribunal might offer more flexible remedies, such as the possibility of a change in one of the employer’s policies or reinstatement to the role after termination. 

Can the Human Rights Tribunal order payment for lost income and can courts decide claims based on the Human Rights Code?

Is one form capable of dealing with the employee’s grievances, such as where the employee has been subject to a human rights violation and terminated?

Under the Code, the HRTO is allowed to order the payment of monetary compensation to someone whose right has been infringed (for example, they have been discriminated against) for loss arising out of the infringement. This means that the HRTO can award compensation for things like lost income, such as representing the amount not earned by the employee between when they were forced to ‘resign’ following discrimination or harassment and when they obtained a new job. 

A court can order monetary compensation or restitution in a civil proceeding where a Code right has been breached. However, according to section 46.1 of the Code, a person cannot commence a civil proceeding in a court solely based on an infringement of a Code right – they need to have another cause of action, such as wrongful dismissal.

Can you start a claim in the Human Rights Tribunal after commencing civil court proceedings?

An issue that can arise is whether an employee can bring claims in multiple different fora. Can you get multiple bites at the cherry?

Section 34(11) of the Code prevents a person alleging an infringement of a Code right before the HRTO if:

“(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.”

Therefore, if the employee has already started court proceedings “with respect to the alleged infringement,” it may not be possible to bring a later claim before the HRTO.

Terminated employee started court proceedings then an HRTO application

This situation recently arose before the HRTO in the case of Koufis v James Campbell Inc. o/a McDonald’s Restaurant.

The employee argued that he was terminated in violation of the Code because of discrimination based on disability. He first filed a court claim for wrongful dismissal, including seeking damages for mental distress arising from the termination. Following this, the employee applied to the HRTO, alleging discrimination. 

The HRTO advised the employee that it intended to dismiss the application under section 34(11) of the Code due to the earlier filed civil proceeding. 

HRTO application needed to be dismissed if it implicitly raised a Code-related interest

The employee argued against the proposed dismissal of his HRTO application. He observed that his civil claim did not allege a Code infringement and did not seek a remedy under the Code.

The HRTO adjudicator quickly disagreed with the employee’s argument, observing that section 34(11) of the Code did not require the applicant to explicitly ask the court for a remedy under the Code in order for the subsequent HRTO application to be dismissed. The purpose of this section is to avoid duplicating court and HRTO proceedings.  

The adjudicator stated:

“… the determinative question is whether the civil claim explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns.” 

HRTO application dismissed

The HRTO adjudicator decided that the factual underpinning of both of the employee’s proceedings was the same. Both the court and HRTO cases involved the termination of his employment and requests for monetary compensation. Both required assessing the employer’s non-Code-related justification for the termination of employment. 

As a result, the adjudicator dismissed the employee’s HRTO application.

Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination and Harassment

Haynes Law Firm represents employees and employers in all human rights claims. We represent employees that have experienced discrimination and harassment, including sexual harassment. We will advocate for your position regardless of the forum, whether in negotiations, tribunal or court proceedings. We help our employer clients defend claims and manage performance issues and termination. To discuss how Paulette Haynes can assist you, please contact us online or call us at 416.593.2731.

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Employment Discrimination

The Importance Of Applying To The Human Rights Tribunal By The Time Limit

As we have mentioned before, if you have experienced discrimination or harassment in the workplace, one option is to bring a complaint to an administrative body like the Human Rights Tribunal of Ontario (HRTO).

As with any employment law claim, it is critically important to understand that there are deadlines that you need to comply with when filing an application with the HRTO. If you miss the time limit, the HRTO may refuse to deal with your matter. 

This article reviews the time limit to apply to the HRTO and the circumstances in which the Tribunal might decide to hear the claim even if the deadline is missed. We also reviewed a recent decision in which the employee applicant missed the time limit, and the HRTO dismissed the application. 

Employers cannot discriminate on prohibited grounds or engage in harassment

If you believe you have experienced discrimination or harassment, one option for non-federally regulated employees is to file an application with the HRTO. 

Under section 5 of the Ontario Human Rights Code (Code), every person has a right to equal treatment with respect to employment without discrimination because of a range of enumerated grounds. The Code contains the same right to freedom from harassment in the workplace.

Applications that do not settle go to a hearing. The HRTO has the power to grant a wide range of remedies, from monetary compensation to restitution to an order requiring a party to do anything that will promote compliance with the Code.  

Time limit to apply to the HRTO and the possibility of being granted an extension

Under section 34 of the Code, if a person believes they had a Code right infringed, they are allowed to apply to the HRTO within one year or one year after the last incident if there was a series of incidents. 

The Code envisages the possibility of receiving an extension from applying to the HRTO. However, they are generally difficult to obtain, and it is far preferable to apply to the HRTO within one year of the incident. According to the Code, a person may apply after the expiry of the time limit if the HRTO finds that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Was the delay incurred in good faith?

The HRTO has placed a fairly high onus on applicants when advancing a good-faith explanation for the delay. They need to prove that they acted with due diligence, which can be difficult. 

For example, the HRTO has held that simply failing to know one’s rights or that they could have applied to the HRTO is insufficient to explain why they could not have made enquiries and learned their rights by the deadline.

Will substantial prejudice result?

Even if the delay was incurred in good faith, the application would be dismissed if the delay resulted in substantial prejudice. In assessing whether prejudice will result from allowing the application to proceed despite the delay, the HRTO may consider the delay’s length and the delay’s impact on a party’s ability to respond to the application. For example, the delay might prevent the other party from being able to obtain witnesses or documents relevant to the application.

Employee applied to HRTO over one year after last incident of alleged discrimination

In the recent HRTO decision of Mohamed v Veg-Pak Produce Ltd., the employee applicant claimed discrimination on the basis of race and sex. She alleged that she was subjected to sexually harassing behaviour.

The employee applied to the HRTO in December 2018 but claimed in the application that the last incident of discrimination occurred in October 2017, which was the date she resigned. At the preliminary hearing, the applicant claimed that events after resignation were also part of the series of incidents, meaning that the application met the time limit. 

Post-resignation incidents were not employment-related

Adjudicator Gomes explained that in order to form part of the series of incidents, the incident needs to be a discriminatory act in itself, not simply connecting back to, or being a consequence of, a prior allegation of discrimination.

While the applicant attempted to arrange meetings after resigning, this was not a new discriminatory incident. In addition, claims that one of the perpetrators gave a “thumbs down” to one of her social media posts and that she was harassed by her ex-partner, who was also an employee, were not employment-related as required by the Code.

Employee did not prove good faith for the delay

The employee argued that the delay was incurred in good faith because she was unaware of her right to pursue a claim at the HRTO and that her medical and life circumstances prevented her from applying.

Adjudicator Gomes found that the applicant made a choice to delay enquiring into her rights with a lawyer due to financial constraints. This was insufficient to establish good faith in the circumstances. A psychologist’s note related to treatment in 2019 and 2020, which was after the relevant period, could not support her argument that a medical condition prevented her from filing the application by the time limit. 

The Adjudicator decided that the applicant’s life circumstances were not so severe as to have prevented her from filing the application on time. As a result, the applicant failed to establish good faith for the delay, and the HRTO dismissed the claim.

Contact Haynes Law Firm in Toronto for Highly Skilled Representation in Employment Discrimination Claims

Don’t miss out on the chance to have your claim heard. Contact Toronto employment lawyer Paulette Haynes early to give you the best chance of securing fair compensation or a remedial remedy appropriate for your circumstances. Haynes Law Firm has worked on both sides of this issue and also helps employers maintain harassment-free workplaces and deal with allegations of human rights violations. Please fill out the online form or call us at 416.593.2731.

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Employment Discrimination Maintaining a Harassment-Free Workplace Sexual Harassment in the Workplace

Discrimination Claims In The Human Rights Tribunal Of Ontario

We recently reported on discrimination claims for federally regulated employees, explaining that such employees could choose to bring a complaint before an administrative body (the Canadian Human Rights Commission) or through the court system. 

A similar choice faces employees that are not federally regulated. If they experience discrimination in the workplace, they may register a complaint with the Human Rights Tribunal of Ontario (HRTO) or file a claim through the court system.

This article looks at the process of filing an application with the HRTO. We also look at a recent decision of the HRTO that awarded damages to an employee that was a victim of sex discrimination and harassment that caused her to resign from her employment. 

Employers cannot discriminate on prohibited grounds

Under section 5 of the Ontario Human Rights Code (Code), every person has a right to equal treatment with respect to employment without discrimination because of a range of enumerated grounds, specifically race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability. 

Further, employees have a right to freedom from harassment in the workplace by the employer, an employer’s agent or another employee because of the same grounds. The Code also contains specific prohibitions against sexual harassment. 

Applying to the Human Rights Tribunal of Ontario

If you believe you have experienced discrimination or harassment, one option is to file an application with the HRTO.

There is a voluntary mediation stage, in which the parties may attempt to reach an agreement with the assistance of an HRTO mediator. If this is unsuccessful or one or both of the parties are not interested in trying mediation, the application will go to a hearing.

Similar to a court process, during the hearing, a party can question witnesses and introduce relevant documents as evidence. The parties make arguments about the facts and the law. The HRTO adjudicator decides whether discrimination has occurred and, if so, decides an appropriate remedy.

Employee resigned after alleged abusive and discriminatory conduct

In A.B. v C.D., the applicant employee started working for the respondent and his company in 2007. The employer began a pattern of conduct toward her that she described as abusive and discriminatory.

The applicant explained that the incidents included:

  • The employer would disparage her appearance and her weight, and comment that she “waddled” when she walked.
  • He once said in front of a customer that he would just get the applicant to “waddle over” and that when she was through, she should “go and sit down like a good dog”. 
  • She was told to put her hand up to ask to go to the bathroom.
  • The employer watched a pornographic movie with another employee and there was joking about sexual behaviours.
  • The employer called her an “idiot” on an almost daily basis and also said “no one would hire you, look at you” and “no one would want you looking like that, you can’t even walk, you waddle”. 

The applicant resigned numerous times, with the final time in 2014.

Tribunal found employer engaged in sex discrimination and harassment 

Adjudicator Reaume explained that the employer did not respond to the applicant’s specific allegations of discrimination and harassment in the workplace. He offered alternative theories about the source of the applicant’s lack of self-esteem and well-being, and said that he treated his employees fairly in a high-pressure industry.

The Adjudicator accepted the applicant’s testimony that she was targeted daily with conduct that was discriminatory, abusive and in some cases, violent. The incidents she described went well beyond good-natured teasing and sexual banter in a workplace, with the Adjudicator saying:

The vulgar and aggressive comments about her appearance, intelligence and work performance struck at the core of her dignity as a woman. She felt that she had no choice but to put up with the respondent’s behaviour if she wanted to maintain her job.

The Adjudicator found that the bullying and harassment the applicant experienced was an abuse of power, exercised in part because she is a woman. The HRTO found that the applicant was a victim of sex discrimination and that her work environment was poisoned by repeated acts of discrimination and harassment by the respondent, causing her to resign from her employment. 

Employee awarded lost wages, plus damages for injury to dignity, feelings and self-respect

Adjudicator Reaume awarded the applicant approximately $31,000 in lost income, which was the best approximation of what she would have earned if she remained with the employer for the period between when she was forced to resign and when she started a new position. 

The Adjudicator also awarded the applicant $25,000 in damages for injury to dignity, feelings and self-respect. The applicant felt degraded, humiliated, anxious, depressed and feared for her safety. The applicant’s health was also significantly affected.

Finally, the applicant requested an order that the employer implements policy, education and training programs to establish and maintain a workplace free of discrimination and harassment. The Adjudicator ordered the employer to post copies of the Code cards in the workplace, to complete an online learning course and retain an expert to develop and implement workplace human rights policies and procedures.

Contact Haynes Law Firm in Toronto for Highly Skilled Representation in Employment Discrimination Claims

Toronto employment lawyer Paulette Haynes and her team of employment professionals at Haynes Law Firm work with employees (and employee candidates) who have experienced discrimination in the workplace. The Haynes Law Firm team has worked on both sides of this issue for nearly three decades and is privy to the various tactics used by employers to avoid liability in workplace discrimination matters. To ensure you receive fair compensation or a remedial remedy appropriate for your circumstances, contact the team at Haynes Law Firm. Please fill out the online form or call us at 416.593.2731.

Categories
Employment Discrimination

Discrimination Claims For Federally Regulated Employees

Some industries and workplaces are federally regulated. In addition to the federal public service, these include air transportation, banks and telecommunications providers. If federally regulated employees experience discrimination in the workplace, they may register a complaint with the Canadian Human Rights Commission (CHRC) or file a claim through the court system.

This article looks at the Canadian Human Rights Act (Act) requirements and some options for employees who believe they have been discriminated against. We also look at a recent Canadian Human Rights Tribunal (CHRT) decision that awarded damages to an employee after disability was found to be a factor in his termination. 

Employers cannot discriminate on prohibited grounds

Under section 7 of the Act, it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ an individual or in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination.

The prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Choosing the forum for a discrimination claim

An employee can choose to bring a discrimination claim before an administrative body, such as the CHRC, or in court by filing a civil claim. There are advantages and disadvantages to both. 

For example, a civil claim is generally more costly but potentially greater financial compensation if successful. If you seek a different remedy, such as a change in policy at your workplace, or reinstatement to a role after termination, an administrative law claim might be the best option.

Registering a complaint with the Canadian Human Rights Commission

If the administrative route is selected, the CHRC is the first point of contact for registering a complaint under the Act. It has the authority to investigate discrimination complaints, and if it finds the complaint warranted, it can refer the case to the CHRT for a hearing.

The CHRT can hear complaints of discrimination filed against federally regulated employers. It hears evidence and witnesses complaints of discrimination, decides whether discrimination has occurred, and decides an appropriate remedy.

The CHRC may (but is not required to) participate in a CHRT case. If it does, it can present evidence and make arguments regarding the complaint in the public interest.

Employee was dismissed after returning to work from medical leave

In Luckman v Bell Canada, the complainant started working as a Business Development Manager with Bell in 2016. He cared for his ailing father until his passing in April 2017, when he was diagnosed with cancer. 

The complainant started a medical leave in May 2017 to have surgery. He attempted to gradually return to work in October, but this was unsuccessful after the complainant said that he was “bombarded” with work. However, he did return in November after a short-term disability leave. 

The complainant experienced the same stresses as before, and Bell did not offer any accommodation such as a flexible schedule. He was terminated in December 2017, with Bell stating that his position had been eliminated due to organizational changes. He was the only employee in his team terminated as part of the restructuring. Bell claimed he was selected due to sub-standard performance.

Disability was found to be a factor in Bell’s decision to terminate complainant

CHRT Member Pannu explained that the complainant must show that it is more likely than not that he had a protected characteristic, that he experienced an adverse impact with respect to employment, and that the protected characteristic was a factor in the adverse impact.

Given the complainant’s cancer diagnosis and termination, the key issue was whether the cancer was a factor in Bell’s decision to terminate him. 

Mr. Pannu found that the complainant’s performance was not sub-standard and that he had an above-average sales ranking. He concluded:

I find that [the team leader] believed [the complainant] would be unable to perform to her high standards because of his medical condition, which resulted in a significant leave for cancer treatment and a second leave when his return to the workplace was unsuccessful. She was concerned that he might require future leaves or lack energy at work, disrupting her team’s service to its clients.

Because disability was a factor in the termination, Bell discriminated against the complainant contrary to section 7 of the Act.

Complainant awarded lost wages, plus damages for pain and suffering and reckless conduct

Mr. Pannu awarded the complainant approximately $91,000 for wages he would have received but for his termination (until the time he found a new job). He also awarded damages of $15,000 for pain and suffering, given Bell’s “serious transgression of the Act”:

They terminated an employee who was still recovering from cancer surgery. They did not inquire whether his disability continued to affect his ability to work. In addition to the physical suffering and stress from his cancer recovery, [the complainant] was forced to endure the humiliation of being fired and being forced to find a new job on top of all his problems.

The complainant was also awarded $15,000 for the employer’s reckless conduct. 

Contact Haynes Law Firm in Toronto for Highly Skilled Representation in Employment Discrimination Claims

Toronto employment lawyer Paulette Haynes and her team of employment professionals at Haynes Law Firm work with employees (and employee candidates) who have experienced discrimination in the workplace. The Haynes Law Firm team has worked on both sides of this issue for nearly three decades and is privy to the various tactics used by employers to avoid liability in workplace discrimination matters. To ensure you receive fair compensation or a remedial remedy appropriate for your circumstances, contact the team at Haynes Law Firm. Please fill out the online form or call us at 416.593.2731.