Just a demographic shift? Employer faces allegations of discriminatory hiring practices

In Provo v. CDMV Inc., 2026 HRTO 597, the Ontario Human Rights Tribunal (HRTO) provided an in-depth analysis of allegations of racism and the role of evidentiary data in analyzing allegations of preferential treatment.

In this case, the applicants alleged that they were subjected to differential treatment on the basis of race and colour. One of the applicants did not identify as Black, but alleged that their association with Black workers informed the employer’s treatment towards them.

The applicants both worked at a distribution centre in Brampton, Ont., until they were both separately terminated. In alleging that the termination was discriminatory, the applicants noted that when a new manager started at the distribution centre, more than 90 per cent of the workers were Black. After the new manager started, the demographics shifted, and most of the workers were of South Asian descent. In other words, they alleged that Black workers were replaced with South Asian workers due to the manager’s discriminatory preference for one race and/or ethnic group over the other.

The employer did not dispute that there was a demographic shift at the distribution centre. In denying that it was discriminatory, the employer explained that this shift was reflective of the demographic composition in Brampton.

Tied to prohibited ground?

The tribunal started its analysis by reminding the parties of its jurisdiction: alleged acts of unfairness must be tied to a prohibited ground of discrimination to warrant analysis at the HRTO. In this case, the decision set out a list of allegations where the applicants did not present evidence tying the allegations to race or colour. For example, an allegation that the manager let everyone know that they are replaceable was deemed to have no connection to race or colour. Once that was done, the tribunal proceeded to analyze the merit of the remainder of the allegations, on a balance of probabilities.

The tribunal took judicial notice of census information for relevant demographics in the City of Brampton. This included how many people were Black and how many were South Asian during the relevant period of time. As noted above, it was undisputed that the distribution centre shifted to mostly hiring workers of South Asian descent. However, based on census data, it was only natural that the majority of the workforce gradually became South Asian, the tribunal said.

In addition to this, the employer was able to present credible evidence, including documention, of objective performance concerns tied to reasons unrelated to race or colour. Upon viewing all of the evidence, the tribunal did not find that the allegations were proven, on a balance of probabtlities.

In analyzing an allegation that South Asian workers were allowed to speak “in their own tongue” without reprimand, the tribunal held that the mere act of speaking in one’s own language at work does not violate the Ontario Human Rights Code.

Best practices for non-discriminatory hiring decisions

This case includes the following important lessons for employers, regarding best practices for managers:

• Retain data pertaining to hiring decisions, including who was not selected for the role(s).
• As workplaces become more diverse, establish policies around language in the workplace and train managers on best practices.
• Document performance issues and communicate them to employees as they arise.

Shannon Sproule is an employment lawyer and workplace investigator at Turnpenney Milne LLP in Toronto.