You may have heard that it is generally illegal for employers, landlords or businesses to discriminate against anyone because of his or her race, sex or sexual orientation, but those are just three of a total of seventeen different characteristics that are protected by Ontario’s Human Rights Code. The Human Rights Code is a set of laws that protect people in Ontario from discrimination and harassment in five areas of life. Those areas are:
2. accommodations (such as rental housing)
3. goods, services and facilities
5. and membership in trade and vocational associations.
Do you want to know the other protected characteristics? Get ready, here it is. The Code prohibits discrimination and harassment on any of the following grounds:
• Place of origin
• Ethnic origin
• Sex, including sexual harassment and pregnancy
• Sexual orientation
• Gender identity
• Gender expression
• Family status
• Marital status
• Receiving public financial assistance in housing cases
• Having a criminal record after a person receives a formal pardon
However, not all unfair conduct or unequal treatment is protected by Ontario’s Human Rights Code. In order to be protected by the Human Rights Code, the unequal treatment that a person experiences must have happened in at least one of the five specific types of situations we mentioned before, and it must be based on one or more of the seventeen protected characteristics.
There are also some situations where something that appears to be discriminatory is actually perfectly legal. For example, although the Human Rights Code prohibits different treatment based on age, different insurance rates based on age are actually allowed.
Another example of an exception to the general rules is in housing situations. The Human Rights Code allows a landlord to refuse to rent to someone based on gender or race if:
• the owner or his or her family also lives on the premises; and,
• the owner or his or her family would be sharing a kitchen or bathroom with the tenant.
However, what happens when a person’s human rights are legitimately violated? For example, if your employer makes unwanted sexual advances towards you or uses an offensive racial slur against you, what options are available in these types of situations?
If the problem is with an employer, then these incidents can sometimes be handled within the company. Many companies in Ontario have strict human rights policies, and have human resource departments to address incidents of harassment and discrimination. If you’ve been harassed or discriminated in some other situation that is not related to your job, such as at a restaurant or other place of business, then keep in mind that some larger companies have complaints departments who can help resolve your concerns. Many companies do not want to be known for discriminating against any group of persons, and they will typically do their best to resolve the complaint.
However, some situations cannot be resolved either because the victim has been fired from his or her job, or a company refuses to take appropriate action about an incident of discrimination or harassment. In those situations, a person may wish to turn to the Human Rights Tribunal of Ontario, or H-R-T-O for short.
The HRTO resolves cases about discrimination and harassment that are covered under the Human Rights Code. The HRTO first offers people the opportunity to settle the dispute through mediation, which is a type of negotiation. If the people involved in the case do not agree to mediation, or the mediation does not resolve the dispute, then the HRTO holds a hearing. Decisions are made by people called “Adjudicators”, and these adjudicators are sometimes called “Vice-Chairs” or “Members”. HRTO adjudicators have experience, knowledge and training in human rights law and issues.
A person who brings his or her case to the HRTO is called an “Applicant”. A person or company who receives a complaint against them by the Applicant is called a “Respondent”. If an adjudicator is convinced that the Respondent harassed or discriminated against the Applicant, and there has been an injury to the Applicant’s dignity, feelings or self-worth, then the adjudicator can order the Respondent to pay money to the Applicant.
Keep in mind that some cases must go to the Canadian Human Rights Commission instead, and the Human Rights Tribunal of Ontario cannot deal with those types of cases. The CHRC deals with cases that are in the federal sector. Some examples of federal organizations are:
• Bus and railway companies that travel between provinces
• Chartered banks
• Television and radio stations
• Telephone companies
• and Federal government departments or agencies
But if your case does not fall into one of those categories, you can most likely take your case to the Human Rights Tribunal of Ontario.
So how does the HRTO work?
Well, the process starts with a document called an “Application”. There are time limits for making an application to the HRTO. You must file your application within one year of when the discrimination happened. If you were discriminated against or harassed more than once, then you must file the application within one year of the most recent incident of discrimination. The HRTO can sometimes accept a late application if it is satisfied the deadline was missed in good faith, meaning it was an honest mistake, but the HTRO must also be satisfied that accepting the late application will not be substantially unfair to the Respondent. Otherwise, the HTRO will not hear the case after the one-year deadline.
The HTRO will provide a copy of the Application to the Respondent after it is satisfied that the Application has been completed correctly. The Respondent must then fill out a Court form called a “Response”, and then give it to the HRTO.
If you have received an application and notice of application directing you to file a Response, that means an Applicant has claimed that you have discriminated against him or her, and you will have 35 days to file a response to the allegations against you. If you do not file a Response, you may not be given an opportunity to participate further in the process, and you could be ordered to pay money to the Applicant.
You will be asked on the application or response form if you are willing to try mediation. The goal of mediation is to help the parties reach a solution that resolves the issues in the application. The HRTO mediates disputes using an active listening approach. This means that both sides will have an opportunity to tell a HRTO mediator what happened and what they would like to see done about it. It’s important to keep in mind that the mediator does not decide the issues in the case, because that job is for an adjudicator. The mediator will consider the evidence as well as both sides of the situation, and then help find a solution that is satisfactory to both sides. If you choose to participate in mediation, you will need to sign a Confidentiality Agreement before the mediation. If you settle your case in mediation, you and the other party will have to complete a settlement form. The HRTO will issue a letter to acknowledge the settlement and close the file. However, if you can’t reach a settlement, the case will proceed and may be scheduled for a Hearing. Mediation at the HRTO is a voluntary process. You are encouraged to mediate, but if one or both of the parties is not interested in trying mediation, the case will go directly to a Hearing.
A Hearing at the HRTO is a serious legal process. It provides an opportunity for the Applicant and the Respondent to present facts, evidence and legal arguments to an adjudicator. After the Hearing, the adjudicator will decide the case, and whether or not the Respondent must pay money to the Applicant. The adjudicator can also make other kinds of decisions, such as reinstating a person back to his or her job after he or she was fired due to discrimination. If your hearing lasted 3 days or less, you should receive your final decision within 3 months. If your hearing lasted longer than 3 days, you should receive your final decision within 6 months.
If you are not happy with a decision made by an adjudicator, there is no automatic right to appeal the HRTO’s decisions. However, in some limited circumstances, a person who is dissatisfied with a decision may make a request for something called “Judicial Review”, and the case would go to a place called the “Divisional Court”. However, the Court will not allow a judicial review to happen unless it is satisfied the HRTO’s decision was unreasonable. A judicial review is not an opportunity to reargue a case, and the Divisional Court will not necessarily reverse an adjudicator’s decision simply because the HRTO could have or should have come to a different conclusion.
So now you know a little bit about how the Human Rights Tribunal of Ontario works. We’d like to mention that this video is not published by or affiliated with the HRTO, and it is not intended as legal advice. You should always consult a lawyer if you have questions about your own unique situation.