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September 2016

Human Rights Claims

Part 6 of 6

Aryeh Samuel
Marla Kuperhause,

By Marla Kuperhause
First presented at a Client Employment Seminar

Discrimination Defined

Discrimination is a "distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups, not imposed on others."1 Such burdens "withhold or limit access to opportunities, benefits and advantages available to other members of society.2


Section 5 of the Human Rights Code (the "Code") provides that every person has a right to equal treatment with respect to employment without discrimination on the following grounds:

  • Race
  • Ancestry
  • Place of origin
  • Colour
  • Ethnic origin
  • Citizenship
  • Marital status
  • Family status
  • Disability
  • Creed
  • Sex
  • Sexual orientation
  • Gender
  • Identity
  • Gender expression
  • Age
  • Record of offences

Every person who is an employee has a right to be free from harassment in the workplace from both the employer and other employees.

Making a Discrimination Complaint

An employee who claims that he/she was discriminated against in the workplace, bears the burden of establishing a prima facie case of discrimination. Such a case is one that sets out the allegations made that, if believed, is complete and sufficient to justify a verdict in the plaintiff's favour.3

The elements of a prima facie case:

  1. The plaintiff is a member of a group protected by the Code;
  2. The plaintiff was subject to adverse treatment; and
  3. The plaintiff's protected group status was a factor in the alleged adverse treatment.4

Should a prima facie case of discrimination be established, the burden shifts to the defendant to provide a rational explanation for the otherwise discriminatory behaviour. If the defendant provides such an explanation, the plaintiff bears the burden to demonstrate that the explanation provided was merely a pretext and that the true motivation behind the defendant's actions was in fact discriminatory.5 Therefore, the ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the defendant.

It is not necessary for the plaintiff to establish that discrimination was the sole reason for the actions in issue, in order for the plaintiff to succeed. It is sufficient that discrimination be one of the motivating factors. Further, there is no need to establish an intention or motivation to discriminate; rather, the focus of the inquiry is on the effect of the defendant's actions on the plaintiff.6

Duties of the Employer and Employee

(I) An Employer's Procedural Duty to Accommodate

An employer has a procedural duty to accommodate an employee's disability. A failure to give any thought or consideration to the issue of accommodation, including what, if any steps could be taken, constitutes a failure to satisfy this duty.

In such circumstances, employers should attempt to assist a person who is clearly unwell, or perceived to have a disability, by offering assistance and/or accommodation.

When dealing with mental illness, an employer is required to pay special attention to situations that could be linked to mental disability and offer accommodation.

(II) An Employer's Substantive Duty to Accommodate

The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee's disability short of undue hardship. "Accommodation" refers to what is necessary in the circumstances to avoid discrimination.

(III) The Employee's Duty to Disclose

Although the employer has a high duty to accommodate an employee's disability, the employee has a corresponding duty to cooperate in his/her accommodation.7

Employees must cooperate in obtaining any necessary medical information, make their needs known, preferably in writing, in order that the person responsible for accommodation can consider possible accommodations, participate in discussions about solutions and work with employers on an ongoing basis to manage the accommodation process.

Poisoned Work Environment

The Ontario Human Rights Commission defines a poisoned environment as a situation at work where comments and/or actions make an employee feel unwelcomed or uncomfortable.

A workplace is considered poisoned for the purposes of constructive dismissal only where serious wrongful behaviour occurs.

In General Motors of Canada Ltd. v. Johnson, the Court of Appeal set out the evidentiary burden that is placed on an employee who claims that they were constructively dismissed as a result of a poisoned work environment.8 Specifically, the Court outlined the following objective test:

Would an objective, reasonable bystander support the conclusion that a poisoned work environment was created?

Unless a signle incident was sufficient to taint the entire workplace, it is necessary to establish that the offending conduct occurred persistently and repeatedly.

Remedies Available

If the employer is found to have discriminated against the employee, the Ontario Human Rights Tribunal has access to a wide range of remedies to assist the position of the employee.

Such remedies include:

  • Remedial action in the workplace;
  • Availability of the right/privilege that was denied to the employee (ex. reinstatement of position);
  • General damages for injury to dignity, feelings, and self-respect;
  • Specific damages for lost wages; and
  • Specific damages for expenses incurred and costs.

Aggravated and Punitive Damages

Aggravated damages are designed to compensate the employee for intangible injuries suffered as a result of an actionable wrong, while punitive damages are intended to punish a defendant for reprehensible conduct.

The Supreme Court of Canada has made clear that punitive damages must be awarded specifically where the employer's "advertent wrongful acts... are so malicious and outrageous that they are deserving of punishment on their own."9 The Court specifically noted that a mere breach of the Code would not amount to an independent actionable wrong.

Go to back to 1 - Employment Law - Terminology

1 New Perspective on Canadian Employment Law.
2 Ibid.
3 Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.D. No. 20.
4 Ontario (Hunan Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.).
5 Basi v. Canadian National Railway Company (1988) 9 C.H.R.R. D/5029 (C.H.R.T.).
6 Phipps v. Toronto Police Services Board, 2009 H.R.T.O. 877 (CanLII) at 15-17.
7 Yeats v. Commissionaires Great Lakes, 2010 HRTO 906 (CanLII).
8 2013 Ont. C.A. 502.
9 2008 CarswllOnt 3743, 2008 CarswellOnt 3744, 66 C.C.E.L. (3d) 159 (S.C.C.) [hereinafter Keays] at 62.


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