June 13, 2006
Over the past ten years, the Commission has been involved in 72 judicial review decisions, 32 decisions on appeal at the Divisional Court, 40 decisions from the Court of Appeal, and 17 from the Supreme Court of Canada. As of March 31, 2006, the Commission was litigating 462 cases at the Tribunal, eight cases before the Divisional Court, three in the Ontario Court of Appeal, and two before the Supreme Court of Canada.
In the year ending March 31, 2006, the Ontario Human Rights Commission (the “Commission”) sent 143 cases to the Human Rights Tribunal of Ontario (the ”Tribunal”). An additional 27 cases were sent to the Tribunal after the Commission reconsidered a previous decision. Over the last five years, 81% of cases brought to the Tribunal were settled at some point in the hearing process with the active involvement of Commission counsel. In almost all of these settlements, the Commission obtained public interest remedies that were designed to prevent future discriminatory conduct.
The Commission assists the complainant through the litigation process by preparing the witnesses, pleadings, motions, and calling the evidence. At the hearing, Commission counsel litigate the case in the public interest, again seeking and obtaining remedies which help to prevent future acts of discrimination, such as training programs, the creation of anti-discrimination and harassment policies, internal complaint mechanisms and monitors. Seeking strong public interest remedies in decisions and settlements, and pursuing Commission initiated complaints, are fundamental to the Commission’s litigation strategy.
The resulting settlements and decisions at the Tribunal, or upon appeal at the higher courts, can create precedents and new directions for human rights law in Ontario and beyond. Over the years, the Commission has been involved in a number of high profile appeal cases that have overturned decisions of the tribunal or other courts, adding to this important body of case law.
In Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (Naraine), decided in 2002, Mr. Naraine, an East Indian man, was subjected to racist comments and graffiti over the course of his nine-year employment at a Ford plant, and was ultimately dismissed.
The tribunal at the time (then “Board of Inquiry”) found that Mr. Naraine’s dismissal was unlawful because Ford had failed to consider the effects that the poisoned work environment was having on him, and ordered the company to re-hire him. The Court of Appeal overturned the order to re-hire Mr. Naraine, finding that while his work environment had indeed been poisoned, too much time had elapsed since his dismissal to make reinstatement an appropriate remedy in this case. The Court of Appeal’s decision was supported by the Supreme Court, setting a precedent around the appropriate use of reinstatement as a remedy in human rights cases.
Another important case dealing with race was Smith v. Ontario (Human Rights Commission), decided in 2005. Mr. Smith alleged that he was subjected to ongoing racial taunts and slurs over the course of his employment at a Mr. Lube location until he was dismissed.
While the Tribunal found that Mr. Smith had been subjected to a poisoned work environment, it believed that this harassment was not wilful or reckless, and therefore was not a factor in his dismissal. The Commission appealed this ruling to the Divisional Court, which found that, in fact, race had been a factor in Mr. Smith’s dismissal. This appeal has led the Tribunal to consider the subtle signs of racism when assessing claims of racial discrimination.
Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (O’Malley) was a groundbreaking case decided on appeal in 1985. A retail store’s policy required clerks to work on Saturday, contrary to one clerk’s religious beliefs. As the store would not accommodate her as a full-time clerk, she was forced to take part-time work, and filed a complaint alleging discrimination.
The tribunal (then “Board of Inquiry”) dismissed the complaint, a decision upheld all the way to the Supreme Court, which reversed the earlier decisions and made three key pronouncements that are now integral parts of human rights in Canada: that it is not necessary to show intent to prove discrimination; that an employment policy, applied universally, may still be considered discriminatory; and that an employer now has a duty to accommodate its staff, up to the point of undue hardship.
Another major decision dealing with creed is Peel Board of Education v. Pandori, decided in 1991. The school board adopted a policy that forbade the wearing of ceremonial kirpan daggers, a policy which a tribunal found to be discriminatory against Sikhs.
The school board appealed, but both the Divisional Court and Ontario Court of Appeal upheld this decision, setting a precedent for the acceptance of religious expression in Ontario schools. Last year, the Commission intervened in the Multani case at the Supreme Court, a decision on a similar case in Montreal that re-affirmed Ontario’s position across Canada.
Ontario (Human Rights Commission) v. Gaines Pet Foods Corp was decided in 1993. An employee who had a previous history of absenteeism missed a further six months of work due to cancer. Upon her return, she was told that her future attendance rate must equal that of her colleagues. It did not, and she was fired. A tribunal found that given the employee’s attendance history, the termination was not discriminatory.
However, the Commission appealed to the Divisional Court, which overturned the tribunal’s decision and held that despite the employee’s absenteeism, she did experience discrimination based on her cancer-related absence, and that a negative employment history cannot justify discriminatory treatment of an employee.
In Imperial Oil Ltd. v. Ontario (Human Rights Commission) (Re Entrop), decided in 1998, an employer’s policy forced employees to reveal past drug or alcohol problems. An 18-year employee who revealed a previous problem was then removed from his safety-sensitive job and was subjected to regular tests.
The tribunal found that he was discriminated against based on his perceived disability, a ruling supported by the Divisional Court and Court of Appeal, ensuring that substance abuse would now be recognized as a disability.
Sex and pregnancy
In the 1992 case Zurich Insurance Co. v. Ontario (Human Rights Commission), a complaint was made against an insurer’s practice of charging higher rates for young, single, male drivers, which a tribunal found to be discriminatory based on sex.
On appeal, however, the Divisional Court, Court of Appeal, and Supreme Court all found the practice acceptable. Despite that, this case furthered discussions around discrimination in insurance, and clarified certain sex- and age-based exceptions.
Crook v. Ontario (Cancer Treatment and Research Foundation) (No. 3), decided by a tribunal in 1996, involved a woman who suffered complications after the birth of her child, and was unable to return to work as expected. Her employer refused to grant her sick leave benefits, a practice that a tribunal found discriminatory based on pregnancy and sex.
When this case was appealed, the Divisional Court upheld the original ruling, which made it applicable to others in the future.
In Ontario (Human Rights Commission) v. Etobicoke (Borough), decided in 1982, two firefighters filed complaints because their collective agreement forced them to retire at age 60. A tribunal found this to be discriminatory, but was overruled by both the Divisional Court and Court of Appeal.
When the Commission appealed to the Supreme Court, it decided that provisions of the Ontario Human Rights Code cannot be waived by a collective agreement, and that parties cannot contract out of their Human Rights Code obligations.
The 1995 case Large v. Stratford (City) is similar to Etobicoke, where a police officer filed a complaint after his collective agreement forced him to retire at age 60. Again, a tribunal found this discriminatory, and this time the Divisional Court and Court of Appeal agreed.
The Supreme Court, however, disagreed, finding that this instance of mandatory retirement was justifiable as a bona fide occupational requirement. While this ruling overturned the more progressive tribunal ruling, this case led to a more detailed discussion of the acceptable thresholds for allowing discrimination.
Ontario (Human Rights Commission) and Roberts v. Ontario (Ministry of Health) (No. 2), also decided in 1995, involved a 71 year-old man who was legally blind and applied for financial assistance from the government under a special program to buy a device that would enable him to read. However, such assistance was only provided to those under the age of 18, and the man filed a complaint based on age.
A tribunal dismissed the complaint, a decision supported by the Divisional Court. When the Commission appealed to the Court of Appeal, the tribunal’s decision was overturned. The Court of Appeal narrowed exclusions to the Code, finding that there must be a rational connection between the discrimination of a special program and the purpose of the program itself, ruling that the age restriction for assistance was discriminatory.
Family and marital status
B. v. Ontario (Human Rights Commission), decided in 2002, dealt with a case where a complainant worked for his brother-in-law and was terminated after his family made allegations of abuse against this man. A tribunal found that the complainant was discriminated against based on his family status, while the Divisional Court disagreed, narrowing the tribunal’s interpretation of this ground.
The Commission appealed this ruling to the Court of Appeal, which found that the tribunal had in fact made the right decision, a view subsequently supported by the Supreme Court. This case established a broad definition for “family status,” and made it binding across the country.