June 15 is the anniversary of the Ontario Human Rights Code. This quasi-constitutional, provincial law prohibits discrimination in social areas such as employment, housing, contracts, membership in vocational associations, and goods, services, and facilities.
First taking effect in 1962, the Code was the first of its kind in Canada. Described by historians such as Dominique Clément, this law was premised on the understanding that prejudice can be unspoken and systemic.
Discrimination and harassment because of race, ethnicity, ancestry, place of origin, colour, citizenship, creed including religion, age, marital status, family status, or sex are strictly prohibited by the Code.
While the principles of the Preamble of the Code have remained constant since 1962, additional grounds have been added. During the 1980s, disability and sexual orientation were added as protected grounds, and sexual harassment was more explicitly prohibited. Later, in 2012 gender identity and gender expression were included in the Code.
The Code also prohibits reprisal for raising a Human Rights complaint.
The Human Rights Tribunal of Ontario is an adjudicative body that hears complaints that the Code has been violated. In 2013-2014, 74 percent of applications to the Human Rights Tribunal were in the social area of employment, and 54 percent of applications claimed discrimination due to disability, according to legal scholars such as Irv Ash.
The Human Rights Tribunal can order monetary amounts to be paid to people who experience discrimination. For example, OPT v Presteve Foods Ltd. (2015) is a case of two temporary foreign workers from Mexico. These sisters worked at a fish processing plant in Ontario and alleged that their employer, inside and outside the workplace, subjected them to sexual assaults and touching, unwanted sexual solicitations, a poisoned work environment, and reprisal. The Tribunal ordered $50,000 for one of the workers, and $150,000 for the other, as compensation for injury to dignity, feelings, and self-respect.
In another case known as Emra v Impression Bridal Inc. (2014), the Tribunal heard allegations that a manager had been terminated after a brief, two-day disability-related absence. It ordered the employer to pay $25,000 as financial compensation for discrimination and $33,000 for lost wages.
A more recent case is AB v Joe Singer Shoes Ltd. (2018), in which the Tribunal awarded $200,000 to the applicant. She was an employee and tenant of the respondent for over 18 years. She brought her case to the Tribunal on the basis that the employer had sexually assaulted and harassed her, and also demeaned her for her physical appearance, language skills, and place of origin.
The Code also enables the Human Rights Tribunal to order non-monetary restitution, such as a public apology or reinstatement of employment, or order specific performance, such as participation in Human Rights Training.
The Human Rights Tribunal uses a two-part test when considering allegations of discrimination. First, as described in Moore v British Columbia (2012), applicants need to demonstrate that it appears to be true that they were discriminated against. Applicants need to demonstrate the following:
1. they have a characteristic protected from discrimination,
2. they suffered adverse impact in one of the social areas protected by the Code, and
3. the protected characteristic was a factor leading to this adverse impact.
This discrimination, furthermore, need not be intentional.
Second, in the case that this first step is satisfied, the respondent then has the burden to sufficiently explain how the discriminatory conduct was justified.
The Human Rights Tribunal is designed to be remedial, not punitive. This means that Tribunal remedies are not meant to punish parties in a dispute. Giguere v Popeye Restaurant (2008) held that: "Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and ensure future compliance, are achieved in the particular circumstances."
Lee v Kawartha Pine Ridge District School Board (2012) described how the objective of the Tribunal's power to order remedies is to put applicants in the position they would have been in but for the discrimination. This is called "make whole" remedial power.
The Human Rights Tribunal requires that its forms are used. An application at the Human Rights Tribunal begins when a person alleging discrimination files a Form 1, which can be found online.
If you have been discriminated against contrary to the Human Rights Code, or if you are a business that has a complaint about discrimination, it is suggested that you immediately contact a lawyer or paralegal who has Human Rights Law as an area of their practice.
(This article was originally published with Raise the Hammer on May 22, 2018.)
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