Defending a case in Ontario's human rights tribunal

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WATCH: Has your company been sued in the Human Rights Tribunal of Ontario?

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:

  1. employment

  2. accommodations (such as rental housing)

  3. goods, services and facilities

  4. contracts

  5. and membership in trade and vocational associations.

The Code prohibits discrimination and harassment on any of the following grounds:

  • Race

  • Colour

  • Ancestry

  • Place of origin

  • Citizenship

  • Ethnic origin

  • Disability

  • Creed

  • Sex, including sexual harassment and pregnancy

  • Sexual orientation

  • Gender identity

  • Gender expression

  • Family status

  • Marital status

  • Age

  • Receiving public financial assistance in housing cases, and

  • 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.

Just because someone has filed an application against you or your company in the HRTO, this does not mean that you have necessarily violated that person’s rights under Ontario’s Human Rights Code. The person who files an application with the Tribunal is called an Applicant, and the person or company who the application was filed against is called the Respondent.

There are many defences available to Respondents, and not all applications involve genuine examples of human rights violations. Many applications are what the law calls frivolous or vexatious or, in other words, the Applicant obviously has no legitimate legal case against the Respondent.

Even if the Applicant does have a legitimate basis for a case against you, there are important deadlines that must be met. For example, the HRTO does not have the power to accept an application that is filed more than one year after the last event of discrimination, unless the applicant can provide some good faith reasons for the delay. If the applicant does not provide this information, then the HRTO may dismiss the case. In order to show good faith, the Applicant must have experienced an exceptional situation such as being in the hospital.

 

Furthermore, the Human Rights Tribunal of Ontario does not have the jurisdiction to accept all types of human rights cases. Some cases must go to the Canadian Human Rights Commission instead, which is a federal institution. 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

  • Airlines

  • Chartered banks

  • Television and radio stations

  • Telephone companies

  • and Federal government departments or agencies

According to a report from the Social Justice Tribunals of Ontario, a comparison of decisions issued by the HRTO between the years 2015 to 2018 revealed that, on average, 63 percent of cases resulted in a finding that no discrimination or human rights violation occurred. In other words, most cases that ultimately go to a hearing for a final decision by an adjudicator involve cases where the Respondent did not violate the Human Rights Code.

Furthermore, the Supreme Court of Canada has said that a discriminatory requirement can still be reasonable and legally valid in some circumstances. This is called a bona fide requirement, and it applies in cases that involve the following three factors:

  • First, the discriminatory requirement must have been adopted for a purpose or goal that is rationally connected to the function or job duty being performed

  • Second, the discriminatory requirement must have been adopted in good faith.

  • And third, the discriminatory requirement must have been reasonably necessary to accomplish its purpose or goal, in the sense that it would be impossible to accommodate the applicant without undue hardship upon the organization.

About 70 percent of cases that are filed in the HRTO involve a dispute regarding a person’s employment, and about 55 percent of applications involve an applicant who feels that he or she was discriminated on the basis of a disability.

 

For that reason, we’ll spend some time discussing some of the available defences to an allegation that you or your company has discriminated against an employee on the basis of a disability.

First, defining a disability can be complicated. The term “disability” covers a broad range of conditions. A disability may have been present at birth, or caused by an accident, or developed over time. Section 10 of Ontario’s Human Rights Code defines “disability” as any of the following:

  • any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.

  • The definition of disability also includes mental impairments, developmental disabilities, learning disabilities, a dysfunction in understanding language, or a mental disorder.

Under Ontario’s Human Rights Code, employers, housing providers and service providers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule or standard. Accommodation is necessary to ensure that people with disabilities have equal opportunities, access and benefits. Employment, housing, services and facilities should be designed inclusively and must be adapted to accommodate the needs of a person with a disability in a way that promotes integration and full participation.

That being said, employers, landlords, service providers and facilities still have certain rights. For example, in some circumstances, medical documentation may be required from a person who claims to have a disability.

In September 2016, the Ontario Human Rights Commission, or OHRC for short, released an updated “Policy on Ableism and Discrimination based on Disability”. The policy sets out important information about the role of medical documentation in the accommodation process.

Section 8.7 of the policy includes detailed guidance about the type of medical information to be provided to verify a request for accommodation. The medical documentation should confirm the following:

  • that the person has a disability

  • the limitations or needs associated with the disability.

  • whether the person can perform the essential duties or requirements of the job, or of being a tenant, or of being a service user, with or without accommodation.

  • the type of accommodation that may be needed to allow the person to fulfill the essential duties or requirements of the job, or of being a tenant, or of being a service user.

  • and, in the case of employment, regular updates about when the person expects to come back to work, if they are on leave.

In some cases, an organization may have fulfilled its legal obligations without actually providing the requested accommodation because the person who requested the accommodation did not participate in the process. For example, a person may be considered to have failed to take part in the accommodation process if they refuse to comply with reasonable requests for medical information necessary to demonstrate their accommodation needs, or where they refuse to take part in developing a solution.

Furthermore, employers and other organizations only have a duty to accommodate persons with disabilities up to the point of undue hardship. In other words, if providing the requested accommodation will cause your organization to experience undue hardship, then the accommodation does not need to be provided. 

In many cases, it will not be difficult to accommodate a person’s disability. Accommodation may simply involve making policies more flexible. While doing this may involve some administrative inconvenience, that inconvenience by itself does not constitute undue hardship.

The Human Rights Code provides three considerations when assessing whether an accommodation would cause undue hardship:

  • the first consideration is the financial cost of providing the accommodation
  • the second consideration is a review of any outside sources of funding, if available

  • and the third consideration are health and safety requirements, if any.

No other considerations can be taken into account under Ontario law. Therefore, factors such as business inconvenience, employee morale and customer preferences are not valid considerations in determining whether your organization is being put through undue hardship.

It’s important to keep in mind that the right to receive accommodations for disabilities is neither an absolute nor unlimited right. In employment, the purpose of the duty to accommodate is not to completely alter the essence of the employment. Human rights case law establishes that accommodations which would fundamentally alter the nature of the employment relationship do not need to be provided. For example, if an employee was hired to translate audio from one language into another language, but later that employee became entirely deaf, then any attempt to provide an accommodation to that employee would likely defeat the purpose of hiring the employee in the first place.