Employment / Labour Law
Human Rights Legislation
In Ontario, the Human Rights Code (The Code) expressly prohibits employment-related discrimination and harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. It’s federal counterpart, the Canadian Human Rights Act (CHRA) lists similar grounds, but includes conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. The courts have held that human rights legislation is of a “special nature,” generally taking precedence over any other conflicting laws except for the Constitution. Please note that unlike the Canadian Charter of Rights and Freedoms that only applies to the government and its affiliates, the Human Rights Code applies to both government and private entities.
Because of the “special nature” of the Code and the CHRA applies to both unionized and non-unionized workers alike.
What are considered to be actionable Discrimination under the Code and CHRA
The party alleging a human rights violation bears the initial legal burden of establishing a prima facie case of discrimination, meaning that (1) he or she has a characteristic protected from discrimination in the Code, (2) he or she experienced adverse treatment, and (3) the protected characteristic was a factor in the adverse treatment. The burden then shifts to the respondent (the employer) to prove a statutory defence or other justification.
Under both the Code and CHRA, an employer may justify an otherwise discriminatory rule, standard, or practice if it qualifies as a bona fide occupational requirement, if an employer can show on a balance of probabilities that the rule, standard, or practice:
was adopted for a purpose rationally connected to the job’s performance;
was adopted in an honest and good-faith belief that it was necessary to fulfill that legitimate work-related purpose; and
is reasonably necessary to accomplish that legitimate work-related purpose.
To show (3), it must be impossible to accommodate individual employees sharing the claimant’s characteristics without imposing undue hardship upon the employer.
Duty to accommodate – Undue Hardship Test
An employer’s duty to accommodate to the point of undue hardship has both procedural and substantive dimensions. Procedurally, the employer must obtain all readily available relevant information about the employee’s circumstances and make up action plans to accommodate the employee. Substantively, the employer must arrange or modify working conditions to accommodate the employee unless to do so causes the employer undue hardship.
The factors relevant in assessing undue hardship may include financial cost, disruption of a collective agreement, morale of other employees, interchangeability of workforce and facilities, size of the employer’s operation, and where safety is at issue, both the magnitude of the risk and the identity of those who bear it. In Ontario, the Code lists the factors to consider: “the cost, outside sources of funding, if any, and health and safety requirements, if any”. In the federal jurisdiction, the CHRA limits undue hardship to considerations of “health, safety and cost.”
Duty to investigate – Affirmative Duty to fight Discrimination and Harassment
Human rights jurisprudence has established that an employer has a duty to take reasonable steps to address allegations of workplace discrimination and harassment. Failure to do so may result in liability under the Code even if the allegations prove untrue. In measuring the reasonableness of an employer’s response, tribunals consider whether:
there was an awareness of issues of workplace discrimination and harassment and a suitable anti-discrimination policy and complaint mechanism in place;
adequate training was given to management and employees with respect to the policy;
the employer treated the matter seriously, promptly, and sensitively;
the employer conducted a reasonable investigation and acted on the results; and
the employer provided a reasonable resolution in the circumstances and communicated its findings and actions to the complainant.
The Ontario’s Occupational Health and Safety Act (OHSA), and its federal counterpart Canada Labour Code (CLC) further imposes affirmative duty of the employer to maintain a safe working environment, that is harassment and violence free. The Employment Standards Act and its federal counterpart the Canada Labour Code also have some provisions that proffer workers with some protections.
If you feel unsafe in your workplace, or you are a victim of sexual harassment, violence or discrimination, forced to work overtime without pay or have been a victim of bullying in the workplace, you should seek legal advice promptly as you may be have an case against your employer.
If you are an employer and your employee files an action for human rights violations, HTW Law can help, as there are many justifiable defences that might be applicable to your case.
HTW Law can help. Call us now at 647-849-6582 or send us a message if you have some legal questions / inquiries or want to schedule an appointment with HTW Law.
In Janzen v. Platy Enterprises,  1 S.C.R. 1252, the Supreme Court of Canada has ruled unanimously that sexual harassment is discrimination based on sex.
Both women and men may experience sexual harassment in the workplace. Sexual harassment may include unsolicited sexual jokes, or unwanted touching and repetitive gestures of affection, physical assault, including attempted and actual rape.
The reference to comment or behavior that is known or ought reasonably to be known to be unwelcome and unwanted establishes a subjective and objective test for harassment. The subjective part is the harasser’s own knowledge of how his or her behavior is being perceived. The objective component considers how such behavior would generally be perceived by a reasonable person similarly situated.
Sexual harassment is not limited to person-to-person contacts, but also includes cyber harassment. Email, blogs, Facebook, cell phone text messaging, Whatsapp, etc. are all possible domains for sexual harassment. Both the Human Rights Code and the Occupational Health and Safety Act prohibits any form of sexual harassment. An Employer has a responsibility and an affirmative duty to maintain a harassment-free healthy working environment not only in the physical premise and the work space but also in the cyber space controlled by the Employer.
If you are a victim of sexual harassment, HTW Law can help. Call us now at 647-849-6582 or send us a message if you have some legal questions / inquiries or want to schedule an appointment with HTW Law.