Human Rights: Prohibited Grounds of Discrimination
Ontario Human Rights Tribunal
In Ontario, the Ontario Human Rights Code (the "OHRC") protects employees from discrimination and harassment:
"... because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap."
The above factors, and factors analogous to the above, are prohibited grounds for discrimination. The OHRC applies to employers and agents of the employer, employees, co-workers, contractors and even volunteers. If an employee is terminated or not hired, even in part, due to one of the factors above, the employer may be in breach of the OHRC.
An exception to the prohibition of the above grounds for discrimination is where there is a bona fide occupational requirement for particular characteristics that may have the effect of discrimination on a prohibited ground. Where an employer can prove that the discrimination of an employee, even on a prohibited ground, is genuinely an occupational requirement that cannot be reasonably accommodated, it will not be in violation of the OHRC.
The OHRC also protects employees from sexual solicitation and reprisals, if the solicitation is rejected, made by persons in a position of authority, where the person making the advance knows, or reasonably ought to have known, that such solicitation is unwelcome.
Where an employer has violated any part of the OHRC, the employee may apply for relief to the Ontario Human Rights Tribunal.
Workers for employers under federal jurisdiction have comparable human rights legislation protecting their interests.
WARNING - Strict limitation periods apply to the time until which complaints can be made to the Ontario Human Rights Tribunal.
Bill 107
On June 30, 2008, the process for filing a human rights complaint in Ontario changed. Originally, a complaint was filed with the Ontario Human Rights Commission within six months from the last incident related to the complaint. There was no established deadline for the respondent to file their response to the complaint, nor was there any specific format to be followed. Once the Commission received the complaint, mediation was available to the parties in order to try and reach an agreement on the matter. If no agreement was reached, then the Commission would investigate the matter. At the completion of the investigation, the Commission would either dismiss the complaint or refer it to the Human Rights Tribunal of Ontario for a hearing. If sent to the Tribunal for a hearing, the Tribunal would supply a decision and a corresponding remedy to the complainant. The parties had broad rights to appeal this decision if they felt it was not correct.
Bill 107 has altered this process so that the person alleging to have been discriminated against will file an application directly to the Human Rights Tribunal of Ontario within twelve months of the last incident related to the application, therefore bypassing the Commission altogether. Both parties to the application must complete the necessary Forms related to their matter, as well as a list of witnesses and meet the following deadlines:
- The respondent must file their response within thirty-five days after a copy of the application from the Tribunal is received.
- If the applicant wishes to file a reply to the respondent’s response, then it must be done within 14 days of the respondent filing it.
- A list and copy of all relevant documents in the parties’ possession must be delivered to the opposing party within twenty-one days of receiving the Tribunal’s confirmation of the hearing.
- All relevant documentation that will be relied on at the hearing must be delivered to the opposing party and filed with the Tribunal forty-five days prior to the application being heard.
Mediation will now be available at the Tribunal. The Tribunal may now dismiss or defer an application and may order an investigation into an application if necessary. Additionally, the Tribunal is now able to use a number of different adjudicative and alternative dispute resolution methods to render a decision prior to the hearing, such as a summary hearing to decide the preliminary issues, integrated mediation, and a pre-hearing assessment of the application.
Bill 107 has also limited a party's ability to alter or set aside a Tribunal’s decision. A party may only request judicial review of a Tribunal’s decision if the decision is patently unreasonable.
Canadian Human Rights Commission
The Canadian Human Rights Commission ("CHRC") ensures that both equal opportunity and non-discrimination occur in all areas under federal jurisdiction. These principles are in accordance with the Canadian Human Rights Act ("CHRA") and the Employment Equity Act ("EAA").
According to the CHRA, employment based complaints of discrimination within federal jurisdiction are to be investigated and settled by the CHRC through dispute resolution services which the CHRC provides. If the CHRC cannot settle the matter, they may ask the Canadian Human Rights Tribunal to hear the complaint.
Similarly, pursuant to the EAA, the CHRC is responsible for ensuring that all federally regulated employers provide equal opportunities for employment to:
1. individuals with disabilities
2. women
3. visible minorities and
4. Aboriginals.
For recent court decisions in this area, see our blog.