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.