Ontario Human Rights Law
In Ontario, the Human Rights Code prohibits employment-related discrimination on protected grounds, such as an employee’s age, race, sex, sexual orientation, disability, ethnicity or place of origin. Likewise, employers are required to protect employees from experiencing any workplace harassment related to any protected ground.
Human rights law is considered to be of a “special nature,” with the courts and human rights tribunals often deciding by applying a “liberal” or “purposive” approach when interpreting human rights provisions in legislation. As a result, if there is a conflict between human rights legislation and other legislation (such as landlord and tenant law), human rights legislation generally takes precedence. As the Supreme Court of Canada stated in Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27:
“When the subject matter of the law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional law, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.”
Test for Discrimination
The general rule is that an employee claiming discrimination is required to initially prove on a balance of probabilities a prima facie case of discrimination (that is, it is more reasonable and probable than not that discrimination took place). Afterward, the burden shifts to the employer to justify the conduct within the framework of the exemptions available under the Code (e.g., bona fide requirement defence). If it cannot be justified, discrimination will be found to have occurred.While the Human Rights Code does not define discrimination, the test was developed in case law. Specifically, in order to establish prima facie discrimination (discrimination on its face) under the Code, an employee must show that:
- they have a characteristic protected from discrimination
- they have experienced an adverse impact within a social area protected by the Code, and
- the protected characteristic was a factor in the adverse impact
In human rights law, discrimination does not have to be intentional. In fact, “intent” is irrelevant when it comes to proving that discrimination occurred. Additionally, to prove discrimination, an employee only needs to show that a prohibited Code ground was one factor that the employer considered in treating them unequally – it does not have to be the only or biggest factor that was considered.
Because discrimination is often hard to detect, the courts or human rights tribunals will accept either:
- direct evidence pointing to discriminatory motives may not be available; or
- circumstantial evidence that can show discrimination occurred by analyzing surrounding circumstances and relevant factors, such as timing.
Under the Code, employers have a legal duty to accommodate the needs of employees that are related to a prohibited ground of discrimination since they are adversely affected by a workplace requirement, rule or standard. In doing so, human rights law is intended to provide people equal opportunities, access and benefits.
Typically, the duty to accommodate applies to situations involving persons with disabilities. In these situations, accommodation often means removing physical barriers, perhaps by building a wheelchair ramp. At other times, often also means accommodating individual needs, such as by providing a modified work schedule or disability leave, or taking into consideration an employee’s mental health or family-related obligations when evaluating their performance or termination of employment (often resulting in a wrongful dismissal claim).
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.
Human Rights Claims
In Ontario, any provincially-related employee who reasonably believes they were discriminated against can bring a discrimination claim to the Human Rights Tribunal. This applies not only to employees who are not unionized who can therefore hire an Ontario employment lawyer to pursue a human rights claim (which could be done simultaneously with a wrongful dismissal claim or severance package negotiation), but also unionized employees. In fact, while general rule was that unionized employees should only bring discrimination claims through labour arbitration proceedings because of the collective bargaining agreement, recent court decisions have begun to change that rule. In March 2024, the court in London District Catholic School Board v Weilgosh that employees in unionized workplaces in Ontario have the choice to pursue a human rights claims before either the Human Rights Tribunal or a labour arbitrator.
Call an Ontario Employment Lawyer
If you are an employee in Ontario who believes your human rights were violated, please contact our Toronto employment lawyer to arrange a confidential consultation to review and better understand your employee rights and options, including pursuing a human rights claim while you negotiate your severance package. We are here to protect your employee rights and best interests. With our detailed employment contract review with an Ontario employment lawyer, you can invest in your future by protecting your rights if you are ever terminated from your employment, including to ensure you receive a fair severance package, deal with a wrongful dismissal claims or constructive dismissal claims.