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What's the Ontario Human Rights code?

  1. Equal treatment with respect to employment
  2. Freedom from harassment in the workplace
  3. Prohibition against reprisals
  4. Discrimination based on marital status
  5. Discrimination based on age
  6. Bona Fide occupational requirement exception
  7. Complaints, Investigations and Hearings
  8. Remedies

l. EQUAL TREATMENT WITH RESPECT TO EMPLOYMENT

The Ontario Human Rights Code, 1981, S.O. 1981, c. 53, is predicated on the philosophy that employment decisions should be based upon merit rather than extraneous considerations unrelated to job performance. To effect this objective, the Code aims to enforce the principles of equal opportunity with respect to employment.

The Code expressly prohibits discrimination based upon:

  1. sex;
  2. ancestry;
  3. place of origin;
  4. citizenship;
  5. creed;
  6. handicap;
  7. age;
8. marital status;
9. family status;
10. sexual orientation;
11. colour;
12. ethnic origin, and
13. record of offences.

It is clear, based upon the numerous decisions of the Commission in this area, that these prohibited grounds of discrimination are given an extremely broad and liberal interpretation. For example, the term "handicap" has been interpreted to include numerous medical conditions, epilepsy and the AIDS virus.

The Code's protection of equal treatment with respect to employment extends to virtually every facet of the relationship including recruitment, hiring, evaluation, promotion, discipline and dismissal. Terms and conditions of employment such as probation, wage rates, benefits, hours of work and overtime must be implemented and administered in conformity with the Code's rigorous requirements involving equal treatment with respect to employment.

It is imperative to recognize that the presence or absence of any bona fide intention, by the employer, to treat employees differently or unequally is absolutely irrelevant. If a policy, procedure, practice or custom in the workplace has the effect of treating a class or group of employees differently, even the most praiseworthy intentions of the employer will not detract from the fact that the Code has been violated. Accordingly, a continuous and objective assessment of the rules of the workplace is a virtual necessity of every employer in order to ensure compliance with the provisions of the Code.

2. FREEDOM FROM HARASSMENT IN THE WORKPLACE

Harassment in employment based upon any of the prohibited grounds of discrimination is unlawful. The Code defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome".

The prohibition against harassment extends not only to the person conducting the harassment but also to individuals who are in a position to potentially prevent the harassment from taking place. Accordingly, the employer itself, the employer's agents or other employees may be added as parties to a complaint proceeding if it is determined that party knew or should have known of the harassment in question.

In R. v. Robichaud, the Supreme Court of Canada affirmatively ruled that an employer is vicariously liable for the acts of sexual harassment of its employees, in certain circumstances. Mr. Justice La Forest, speaking for the majority of the court, provided the following comments in relation to prohibitions against harassment in the workplace which are analogous to those set out in the Ontario Human Rights Code:

Since the Act [the Canadian Human Rights Act] is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns.

Indeed, if the Act is concerned with the effects of discrimination rather than its causes (or motivations), it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy - a healthy work environment.

In allowing Mrs. Robichaud's appeal, the Supreme Court of Canada reiterated, once again, that any form of discrimination within the workplace, be it sexual harassment or otherwise, is ultimately the responsibility of the employer, regardless of extraordinary or mitigating circumstances.

(a) Sexual Harassment

While the Code prohibits harassment on numerous grounds, the most common type of harassment considered by the Commission is sexual harassment. The Code explicitly prohibits three types of sexual harassment:

  1. a course of vexatious comment or conduct by the employer or his agent;
  2. an unwelcome sexual advance or solicitation by a person in a position to confer a benefit on another,
  3. the threat of reprisal for rejection of a sexual advance.

One of the leading Ontario decisions in the area of sexual harassment is the case of Re Commodore Business Machines and Minister of Labour for Ontario. The case is significant not only for the media sensationalism surrounding the hearing but also for the fact that it was decided prior to amendments to the Code specifically providing for freedom from sexual harassment.

In the Commodore case, six female employees complained that a factory foreman made repeated sexual advances. When the advances were refused, the foreman found fault with the employees' work and transferred them to jobs involving significantly heavier lifting and degrees of manual labour. The Board concluded that the foreman's actions constituted sexual discrimination, for which both he and the company were liable. The decision of the Board was subsequently affirmed by the Supreme Court of Ontario.

3. PROHIBITION AGAINST REPRISALS

The Code recognizes that employees may be reluctant to exercise their rights under the legislation for fear of reprisals by an employer. In an attempt to alleviate this problem, the Code expressly prohibits "reprisal or the threat of reprisal" against an employee seeking to enforce his or her statutory rights.

The broad remedial power of the Human Rights Commission reinforces the legislative intent of this provision. If the Commission is satisfied that a reprisal, actual or threatened, occurred, it may order, among other things, that the employee be reinstated.

4. DISCRIMINATION BASED ON MARITAL STATUS

Marital status is defined as the status of being married, single, widowed, separated, divorced or living in a common law relationship. Employer policies and procedures relating to hiring, probation, benefits, promotion, discipline and dismissal cannot have the effect of discriminating on the basis of "marital status".

Discrimination based on marital status takes many forms. For example, an employer may prefer to hire a married man over an unmarried man in the belief that the married man may be more sedentary and less likely to move on to alternate employment in the short term. Alternatively, employers may be reluctant to hire young married women out of concern that such women may be likely to become pregnant which could disrupt the individual's employment. Other employers may prefer to hire single people in the belief that such individuals will have few outside responsibilities and thus may be more dedicated to their work. Still other employers may be reluctant to hire the recently divorced fearing these individuals may not be emotionally stable. Regardless of the validity of any of these considerations, all are prohibited by the Human Rights Code.

The Board has also considered whether the marital status provisions prohibit discrimination only on the basis of being married or whether it extends to the status of being married to a particular person. For example, in Mark v. Porcupine General Hospital the complainant was dismissed when it was discovered that she was married to another employee working in the same department, contrary to the policy of the hospital. The Board held that the marital status provisions should be given a broad interpretation and found that the dismissal amounted to marital status discrimination under the Code.

The Mark decision makes it clear that any employer policy or custom relating to hiring, promotions or transfer that is based, in whole or in part, on one's relation by marriage to anyone else in the company or department, is unlawful. The extent of the prohibition against discrimination on the basis of marital status is effectively demonstrated by the decision of the Federal Court of Appeal in Cashin v. Canadian Broadcasting Corporation.

In Cashin, the complainant was denied continuing employment as a journalist with the CBC when her husband was appointed to the board of directors of Petro Canada, another Crown corporation. The CBC argued that identifiable spouses of public figures lacked "perceived objectivity", no matter how objective their reporting was in reality.

In dismissing the arguments raised by CBC, and upholding the complaint made by Cashin, the court dismissed, as wholly unsubstantiated, the argument of "perceived objectivity" raised by CBC.

It is clear that discrimination on the basis of marital status is not, in any way, restricted to discrimination involving the fact that one is married, single, divorced, separated or living in a common law relationship. It also encompasses discrimination relating to the identity and/or characteristics of one's spouse or spousal equivalent.

5. DISCRIMINATION BASED ON AGE

Mandatory retirement is currently one of the most controversial issues in Canadian employment law. Until this issue is thoroughly and decisively adjudicated upon by the Supreme Court of Canada, it will remain a highly contentious issue between employer and employee.

Section 4 of the Human Rights Code provides that every person has a right to equal treatment with respect to employment without discrimination because of, among other things, age. The term "age" is defined within the Code as an age that is eighteen years or more and less than sixty-five. Since many employers in Ontario have policies that provide for the mandatory retirement of their employees at age sixty-five, it is clear that these companies are not contravening the provisions of the Human Rights Code. The only recourse available to the affected individuals who wish to contest their mandatory retirement, is to challenge the constitutional validity of the provisions of the Human Rights Code relating to age discrimination.

In McKinney v. Board of Governors of the University of Guelph the Ontario Court of Appeal affirmed the decision of Mr. Justice Gray, dismissing the application made by seven professors and one librarian for an order to strike out the age discrimination provisions of the Human Rights Code. The university had a mandatory retirement policy which provided that faculty members must retire at age sixty-five, subject to the university's discretion to continue a faculty member's employment beyond age sixty-five.

In the course of its lengthy and well-reasoned 136-page decision, the court found that approximately one-half of the work force in Canada have employment with contractual provisions which stipulate a mandatory retirement age. In addition, the court concluded that most occupational pension plans are based on a retirement age of sixty-five, the age which has been adopted as a normal retirement age by other universities and employers.

This case has been subsequently appealed to the Supreme Court of Canada and was argued at the same time as an appeal from the decision of the British Columbia Court of Appeal in Harrison v. University of British Columbia, a case in which that court struck down provisions of the human rights legislation of British Columbia which are analogous to the age limitation provisions of the Ontario Human Rights Code.

In a long awaited decision that was just recently released, the Supreme Court of Canada, in a split decision, upheld the ruling of the Ontario Court of Appeal in McKinney and reversed the decision of the British Columbia Court of Appeal in Harrison.

In considering the constitutionality of mandatory retirement, the Supreme Court was called upon to decide two issues:

  1. is mandatory retirement contrary to the equality rights provisions contained in s. 15 of the Charter, and
  2. if so, is it nevertheless a "reasonable limit prescribed by law that is demonstrably justified in a free and democratic society", thereby falling within the saving provision set out in s. 1 of the Charter?
In answer to the first question, six of the seven justices concluded that mandatory retirement contravened the equality rights provisions of the Charter. However, five of the seven justices ruled that, on the evidence before the courts in these cases, mandatory retirement represented a "reasonable limit" prescribed by law and, accordingly, was saved by s. 1 of the Charter.

Although the series of judgments rendered by the Supreme Court, which included the McKinney and Harrison decisions, are landmark judgments on the subject of mandatory retirement, they hardly represent the final word on the subject. The court was very careful to express in its judgment that these cases are restricted to their unique facts. In addition, these cases involved individuals who were public sector employees of universities and, therefore, cannot be said to apply automatically to private sector employees in all types of businesses and industries.

It is clear that any mandatory retirement policy which provides for retirement at an age less than sixty-five years of age, is prima facie in violation of the Human Rights Code, unless it can be brought in under one of the limited exceptions prescribed within the Code. Likewise, hiring or promotion policies or practices which are based, in whole or in part, upon the age of the individual, represent a violation of the age discrimination provisions of the Code.

6. BONA FIDE OCCUPATIONAL REQUIREMENT EXCEPTION

The legislation recognizes that there may indeed be legitimate reasons for employment discrimination on prohibited grounds. For example, an individual's record of criminal offences may be relevant where a person is applying for work as a security officer. Accordingly, the Code provides an exemption for discrimination based upon age, sex, record of offences or marital status where it is reasonable and a bona fide qualification because of the nature of the employment.

The meaning of this exemption was discussed by the Supreme Court of Canada in Etobicoke (Borough) v. Ontario (Human Rights Commission). In that case, the court was required to decide whether the fire department policy requiring mandatory retirement at age 60 constituted a bona fide occupational requirement. The court noted that once a prima facie case of discrimination had been established, the burden of proof shifted to the employer to show that the discrimination was justified. The court went on to hold that the qualification must be imposed honestly and in good faith and not used by the employer to circumvent the provisions of the Code. Examples where a bona fide occupational requirement may be lawfully imposed by an employer would include situations where there may be danger to the employee, other employees or the general public.

In Bhinder v. Canadian National Railway Co. the employee, a religious Sikh, refused to wear a hard hat because his religion prohibited him from using any headwear other than his turban. The Supreme Court held that the hard hat requirement was a reasonable and bona fide requirement aimed at protecting the health of the worker. The hard hat rule was therefore a reasonable and justified working requirement even though it infringed on the worker's religious rights.

While the bona fide occupational requirement exception to employment related discrimination is expressly provided for in the Human Rights Code, it is clear that courts and human rights tribunals will require compelling, objective evidence to satisfy them that the rule or policy in question falls within this limited exception. Good intentions on the part of the employer will not suffice.

7. COMPLAINTS, INVESTIGATIONS AND HEARINGS

The Code's complaint process is designed to assist a complainant in seeking redress with a minimum of time-consuming, complex procedures. If persons believe that they have been discriminated against, they may file a complaint with the Commission. The Commission may refuse to deal with a complaint which it believes to be frivolous; or if the matter is not within the Commission's jurisdiction; or if there is a more appropriate procedure for the complainant to effect a remedy; or if the event occurred more than six months prior to filing. If a complaint is rejected, the complainant may apply to the Commission for reconsideration. The Commission may initiate a complaint independent of a specific complainant.

After the complaint has been filed, the Commission will commence an impartial investigation. This investigation may include entry onto the employer's property, a demand for the production of documents and an interview of witnesses. The employer may not obstruct the Human Rights Officer in his conducting of the investigation.

Often times, the investigation process will include a "fact finding conference" involving the complainant and the "respondent" employer. The purpose of the conference is to determine the position of the parties and to attempt to effect an amicable conciliation at an early stage. In most cases, a satisfactory settlement is worked out between the parties without the need of a more formal hearing before a Board of Inquiry. Where a settlement is proposed, the settlement must be approved, in writing by the Commission.

If the parties are not able to reach a settlement, the case may proceed to a Board of Inquiry. The Board is an independent tribunal charged with determining whether or not the complainant's rights under the Code have been infringed. The tribunal is less formal than the regular courts. "Hearsay" evidence is admissible as well as "similar fact" evidence. The employer's past conduct may therefore be considered relevant in determining an intent to discriminate. Boards of Inquiry may also consider statistical evidence. For example, in Action Travail des Femmes v. C.N.R. Co., a case decided under the federal legislation, it was alleged that C.N. discriminated against women in its hiring practices. Statistical evidence suggested that women comprised 5% of the applicant pool but only 0.7% of hirees. Based on this statistical evidence, the Tribunal ordered C.N. to implement an affirmative action plan so that one out of every four hirees must be a woman until the female workforce comprises 13% of C.N. workers.

8. REMEDIES

The Human Rights Code is not a penal statute, rather, it is remedial in nature. The objective is not to punish the discriminator but to provide a remedy for the victim of discrimination. It is with that objective in mind that s. 40 is to be interpreted. The section provides in part:

40(1) Where the Board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 8 by a party to the proceeding, the board may, by order,

  1. direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
  2. direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

In Cindy Cameron v. Nel-Gor Castle Nursing Home an Ontario Board of Inquiry outlined the general principles to be applied in granting a remedy under s. 40. First, the Board should take a purposive approach to give effect to the legislative objective. Secondly, once an infringement is found there is a presumption in favour of awarding general and special damages. Thirdly, the principles of damage awards in human rights cases are those developed in the common law system. Fourthly, the Board can order the respondent to offer employment to the complainant. Fifthly, the damages must be determined without regard to the intent of the respondent's actions. Six, awards for lost wages are not limited to the statutory notice period under employment standards legislation. Seven, the complainant has a duty to mitigate his losses. Eight, general damages for loss of dignity should reflect the seriousness of the loss. Nine, general damages should reflect the loss of the right of equality of opportunity in employment. Ten, the word "wilfully" in the section means "intentionally", "knowingly", or "deliberately". "Recklessly" means "wantonly" or that the individual's conduct constituted a disregard for the consequences. Finally, if the conditions of 40(1)(b) are satisfied, punitive damages may be awarded.

In Ontario Human Rights Commission v. Liquor Control Board of Ontario the Ontario Supreme Court upheld a unique remedy of an Ontario board of inquiry. The board found that the Liquor Control Board discriminated against three members of a visible minority by promoting a lesser qualified white employee to the position of Director of Laboratory Services. The board ordered the employer to appoint Mr. Karumanchiri, one of the complainants, to the position. The company appealed contending that the order to appoint the complainant to a position that was already occupied amounted to an excess of jurisdiction of the part of the board. The divisional court disagreed.

While the primary intent of the legislation is not penal, nevertheless, there is a penalty provision for violating the Code. Section 43 provides for a $25,000 fine for breach of s. 8 (any infringement under Part I of the Code), s. 32(11) (interfering with an investigation under the Code) or failure to comply with an order of a board of inquiry. The Attorney General must consent to any prosecution under s. 43.


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