Has the Ontario Human Rights Tribunal broadened employer liability?

A trio of Human Rights Tribunal of Ontario decisions suggest it may becoming more liberal with the application of its discretion to award damages in human rights complaints.

Has the Ontario Human Rights Tribunal broadened employer liability?

In a trio of decisions from the Human Rights Tribunal of Ontario, released in the past 5 months, the Tribunal may have signaled a significant change in their mindset, suggesting that it may becoming more liberal with the application of its discretion to award damages in human rights complaints. This same argument was put forward in the in relation to the decision in Fair v. Hamilton-Wentworth below.

In Fair v. Hamilton-Wentworth District School Board [2013] HRTO 440, the earliest of the decisions, the HRTO ordered reinstatement of an employee who was out of work for nearly ten years when it was found that the employer had discriminated against the employee on the basis of her disability.  The Tribunal found that the School Board should have investigated possible forms of accommodation with regard to the applicant’s disability, where the failure to do so, coupled with the decision to terminate the applicant, was the basis for the finding against the employer. 

Similarly, in Morgan v. Herman Miller Canada Inc. [2013] HRTO 650, released one month after Fair, the Tribunal awarded damages on the basis that the employer had failed or refused to investigate a complaint of discrimination by the employee. The Tribunal made it clear that it did not have to find that the applicant was discriminated against in order to award damages.  Instead, they found that it was sufficient that the applicant genuinely believed that the respondents were infringing his Code rights, and that he had based a complaint, which was not investigated but ultimately led to his termination, on those beliefs. The Tribunal noted that a complainant does not need to file a complaint in writing with his or her employer in order to merit an investigation. 

Most recently, the decision in Monrose v. Double Diamond Acres Limited [2013] HRTO 1273, serves to confirm the position that a shift in the HRTO’s mindset has occurred.  Here, the Tribunal awarded a migrant worker significant damages for a violation of his dignity and a breach of his right to be free from reprisal. The complainant was employed pursuant to the Seasonal Agricultural Workers Program, for the period January to September 2009, but was terminated on June 8, 2009 and sent back to his home country.  The applicant alleged that he had been terminated as a reprisal for voicing human rights complaints about alleged discriminatory comments made by his employer.  He also claimed the manner in which he was terminated was discriminatory. 

Here, the tribunal did not find that the manner by which he was dismissed was discriminatory, but did find that the applicant had been subjected to discriminatory comments on the basis of his racial background, which thus founded his claim of discrimination.  Further, the Tribunal held that his termination occurred as a reprisal for voicing his complaints to his employers about the discriminatory comments. The tribunal found only one instance of a racially discriminatory comment, however, it was deemed to be so egregious (calling the black workers “monkeys”) that the single incident was sufficient to find a violation of the code.  It is noteworthy that the alleged derogatory comments were not corroborated by other witnesses, but were addressed on the basis of evidence of an expert in the field of migrant workers who stated that such persons are in a position of great vulnerability.  The tribunal held that this vulnerability could explain the lack of corroboration by other workers.

The Tribunal awarded the applicant damages totaling $23,500 – $5,500 for lost wages, $3,000 for damage to his feelings, dignity and self-respect in relation to the derogatory comments and $15,000 for the applicant’s right to be free from reprisal.

The lesson for employers is that, even when the complaint is not well founded or is apparently without merit, the Employer must perform a thorough investigation where discrimination is alleged.  This is especially true where the employer terminates or contemplates terminating the employee. The decision to terminate where there is even a hint of a possibility of human rights issues should be carried out with the utmost care and consideration of the broader picture, given these recent decisions and the apparent shift in the Tribunal’s mindset.

The lawyers at CCP can assist employers with the difficulties associated with accommodation under the Human Rights Code and with any Human Rights complaints they may be faced with.  CCP also provides neutral, third party investigation services.

- By Michael O'Brien

For more information and legal insight or advice, visit www.ccpartners.ca.

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