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Human Rights Complaints in the Workplace

Human Rights Complaints in the Workplace

Mann Lawyers

Posted March 22, 2013

Seventy-seven percent (77%) of all applications received by the Ontario Human Rights Tribunal in 2010-2011 arose in the workplace.[i]

Out of those workplace related applications, disability was the most cited prohibited ground of discrimination accounting for fifty-five percent (55%) of the applications.  Disability is broadly defined by the Ontario Human Rights Commission to include physical, mental and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, drug or alcohol addiction, environmental sensitivities and other conditions.

While disability was listed on more than half of the applications to the Human Rights Tribunal last year, that was by no means the only form of discrimination applicants experienced.  Other grounds included sex (24% of applicants) race (22%) age (15%) and family status (10%).

The number of applicants citing family status as a ground of discrimination appears to be growing.  The Ontario Human Rights Code extends some protection to specific family relationships, for example, parents may not be discriminated against because they have children.  Likewise, adults caring for parents or relatives with disabilities and families headed by lesbian, gay bisexual or transgendered persons are also protected.   What this means in the context of the workplace is that in some circumstances employers may need to accommodate individuals such as a single parent with child care responsibilities.

Seven Key Things to Know about the Ontario Human Rights Tribunal

Whether you are an applicant or respondent, the following are seven key things to know about the Ontario Human Rights Tribunal:

  1. Applicants may be eligible for assistance through the Human Rights Legal Support Centre which is an independent agency funded through the Government of Ontario whose mandate is to provide assistance to individuals who have experienced discrimination.
  2. Applications must be made within one year of the incidence of alleged discrimination or the last in a series of alleged incidents.
  3. Generally speaking, respondents have thirty five (35) days to respond.
  4. Applications and Response forms are available on the internet www.hrto.ca.  These applications are detailed and the Tribunal requires information to be complete.  A guide is available on line although both applicants and respondents may want to consider getting the assistance of legal counsel as the information in these forms are key to how the HRTO proceeds with the application.
  5. Mediation is strongly encouraged by the Tribunal and according to the Associate Chair of the Human Rights Tribunal of Ontario David Wright, last year sixty percent (60%) of cases settled at or after mediation.  Even if the matter is not settled at mediation, it can be a very useful process at it gives the parties the opportunity to hear the mediators’ feedback about possible results and can lead to a narrowing of the issues in dispute.
  6. Remedies that can be awarded by the Tribunal range from damages for injury to dignity, feelings and self respect to damages for financial losses to orders concerning future compliance (for example a workplace can be ordered to implement certain human rights policies).
  7. Legal costs will not be awarded to the successful party.  Following the Supreme Court of Canada decision in Canada (Human Rights Commission) v. Canada [2011] 3. S.C.R. 471  the Tribunal may not make cost awards.  While it is possible that the Tribunal will seek legislative amendments that will allow them to award such fees in the future, for now it is important for parties to be mindful of the fact that they will have to bear the full cost of their own legal fees, even if they are successful.

[i] Presentation by David Wright, Associate Chair of the Human Rights Tribunal of Ontario to the Human Resources Professional Association, January 2012.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500.

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