Does being treated unfairly in employment and simply having a disability, being a member of a visible of invisible minority, or otherwise being protected by the provisions of Ontario’s Human Rights Code entitle one to bring an application before the Human Rights Tribunal of Ontario?
A recent appeal decision from Ontario’s Divisional Court, Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (CanLII) affirmed that the answer is no.
The case in question concerned an application brought before the Human Rights Tribunal of Ontario with respect to the suspension and termination of the applicant’s appointment as a First Nations Constable after he made comments to the press that the OPP, RCMP and SQ (“Sureté du Québec”) are racist organizations. The applicant alleged that his race, ancestry and ethnic origin were factors in the decisions to suspend and ultimately terminate his appointment and therefore a violation of s. 5 of the Human Right Code, and that the termination was an act of reprisal contrary to s. 8 of the Code. He alleged that the exclusion of First Nations Constables from the Police Services Act, RSO 1990, c. P.15, as amended (the “PSA”), is discriminatory contrary to s. 5 of the Code.
In her reasons for decision, released as Hay v. Ontario Provincial Police, 2012 HRTO 2316 (CanLII), Vice-Chair Jennifer Scott held, amongst other things, that:
 The applicant has made no submissions as to how the investigation was discriminatory. He states the investigation was so unfair that it supports a finding of racial discrimination. He provides no explanation for this bald assertion.
 The mere fact that unfairness has been caused to a person protected by the Code is insufficient. The applicant must establish a link between the [conduct complained of] and [the protected ground]. He has failed to do so and as such, this claim is dismissed.
In reaching her decision and in support of her comments in paragraph 129, Vice-Chair Scott cited the earlier decision of the Human Rights Tribunal in Brouillette v. Northern Lights Canada, 2012 HRTO 159. In that case, Vice-Chair Douglas Sanderson wrote that:
 …the fact that an employee has a disability does not in itself render the wide variety of workplace issues and controversies an employee may face violations of the Code. The Tribunal has stated any number of times that it does not have the power to deal with allegations of general unfairness. Rather, an applicant must establish, on a balance of probabilities, a link between a respondent’s alleged actions and a prohibited ground of discrimination under the Code. In the relatively short period of time the applicant worked for [the employer], the applicant compiled a long list of grievances against [it], management and co-workers, which she included in her Application. Most of these allegations have no link to a prohibited ground of discrimination, as they are described in the Application... The applicant made no submissions and provided no particulars regarding these allegations at the Summary Hearing. Consequently, the applicant has provided no evidence that she has or has reasonably available to her that would bring these allegations within the jurisdiction of the Tribunal.
Several other decisions have reached a similar conclusion.
For some, the decision in Hay may stand at odds with the decision of the Court of Appeal for Ontario in Peel Law Association v. Pieters, 2013 ONCA 396, which was summarized by this blog in the post Intention Not a Requirement for Discrimination. In Pieters, the Court of Appeal overturned a decision of the Divisional Court on the basis that it was an error of law to require that applicants before the Human Rights Tribunal demonstrate "a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered." As was stated by the Court of Appeal in that case:
 While the word “nexus”; is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment.
 I do not think it acceptable, however, to attach the modifier “causal”; to “nexus”. Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court’s requirement of a “causal nexus”; or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.
The two decisions appear somewhat at odds with each other. Indeed, I would submit that there is an internal struggle and conflict within the guidance provided in the Court of Appeal’s reasons for decision in Pieters. As a summary of where we stand now, the courts have said the following:
- The mere fact that unfairness has been caused to a person protected by the Code is insufficient.
- The applicant must establish a link or a “connection” between the adverse treatment and the ground of discrimination.
- That “link” or “connection” need not be causal.
- The focus of the inquiry is to be upon the discriminatory effect of conduct, rather than on intention.
I must admit to being somewhat confused by the current state of affairs. To me, there is tension between the two arguments that, on the one hand an applicant must establish a connection (even if not a “causal” connection) between the adverse treatment and the ground of discrimination and, on the other hand, the argument that the focus of the inquiry is to be on the effect of the conduct rather than the intention. If an applicant is not required to demonstrate that the respondent intended to discriminate and the focus of the inquiry is on the discriminatory effect of the conduct, then can one not, as the applicant in Hays attempted to do, argue backwards that sometimes unfair treatment will support a finding of discrimination?
To my mind, the law remains unclear. Certainly, as the Human Rights Tribunal said in Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960 (CanLII), we do not want to “trivialize” the importance of the protections of the Code by recognizing every minor form of discrimination as a transgression of the law. However, by the same token, clearer lines must be drawn as to when one can say, with some certainty, that his or her rights have clearly been violated in contravention of the law’s protections.
Takeaways for Employees with Labour Pains
In recent posts this blog has taken the position that it is always prudent to seek professional legal advice before choosing where to plead your case. The law affords several options for starting a case of wrongful dismissal, including the Human Rights Tribunal. However, as the Hay case demonstrates, in order to be successful in front of the Human Rights Tribunal it is simply not enough to argue that you were fired (or otherwise discriminated against) and are a member of a protected class; applicants before the Human Rights Tribunal must demonstrate a link or a “connection” between the adverse treatment and the ground of discrimination. Put another way, the ground of discrimination must have somehow been “a factor” in the adverse treatment. If applicants are unable to demonstrate such a fact, then as the Hay case demonstrates, the Tribunal will not hesitate to dismiss the application.
For more on this subject, consider the post Why the Human Rights Tribunal of Ontario may be the Wrong Place to Plead Your Wrongful Dismissal Case
If you are a worker in Ontario and believe that you have been unfairly discriminated against in employment, it may be appropriate to speak with an experienced employment lawyer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers with Labour Pains
The takeaway for employers with labour pains is that while the law is somewhat settled that not all acts of discrimination, including termination, will be found to be legally wrongful, even by the Human Rights Tribunal of Ontario, that does not mean employees will necessarily refrain from starting cases in which they believe that their rights have been violated.
As it presently stands if a party loses in front of the Human Rights Tribunal, that party is not required to pay the ‘winning’ side’s legal fees. Both sides bear their own costs.
Defending a claim of discrimination is costly. While legal fees are always a consideration, more than that are the elements of time and opportunity cost. Hearings can last for days, if not weeks. There is paperwork to complete and file, all of which costs time.
Having an experienced lawyer can assist that produce and reduce the stress associated with it. However, it is often far less expensive, in terms of both dollars and time to seek proactive advice. If you are an employer in Ontario and are concerned that your actions may be viewed as discriminatory, it may be prudent to seek professional legal advice first. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.