The ultimate responsibility for a healthy and inclusive environment rests with employers, landlords, unions, vocational and professional organizations, service providers, and other organizations and institutions covered by the Code. There is an obligation to ensure that environments are free from discrimination and harassment. It is not acceptable from a human rights perspective to choose to remain unaware of the potential existence of discrimination or harassment, or to ignore or fail to act to address human rights matters, whether or not a complaint has been made.
An organization violates the Code where it directly or indirectly, intentionally or unintentionally infringes the Code, or where it does not directly infringe the Code but rather authorizes, condones, adopts or ratifies behaviour that is contrary to the Code. Organizations should ensure that rules, policies, procedures, decision-making processes and organizational culture are non-discriminatory on their face, and do not have a discriminatory impact.
In addition, there is a human rights duty not to condone or further a discriminatory act that has already occurred. To do so would extend or continue the life of the initial discriminatory act. The obligation extends to those who, while not the main actors, are drawn into a discriminatory situation nevertheless, through contractual relations or otherwise. An organization should also not punish a person because of how they responded to discrimination or harassment: persons who reasonably believe that they are being discriminated against can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner.
Unions, vocational, and professional organizations are responsible for ensuring that they are not engaging in, condoning, or contributing to discrimination or harassment. They may be liable for discriminatory policies or actions to the same extent as an employer, and share the same obligation to take measures to address harassment or a poisoned environment. Where a union, or vocational or professional organization obstructs an accommodation process, it may be the subject of a human rights complaint.
Human rights decisions frequently find organizations liable, and assess damages, based on an organization’s failure to respond appropriately to address discrimination and harassment. An organization may respond to complaints about individual instances of discrimination or harassment, but they may still be found to have failed to respond appropriately if the underlying problem is not resolved. There may be a poisoned environment, or an organizational culture that excludes or marginalizes persons based on family status, despite sanction of individual harassers. In these cases, the organization should take further steps, such as training and education, in order to more appropriately address the problem.
The following factors have been suggested as considerations for determining whether an organization met its responsibilities to respond to a human rights complaint:
- procedures in place at the time to deal with discrimination and harassment;
- the promptness of the institutional response to the complaint;
- the seriousness with which the complaint was treated;
- resources made available to deal with the complaint;
- whether the organization provided a healthy work environment for the person who complained; and
- the degree to which the action taken was communicated to the person who complained.
Under section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as vicarious liability. It applies not only to human rights violations in the workplace, but also in housing accommodation, goods, services and facilities, contracting, and membership in unions and vocational associations.
Simply put, it is the Commission’s position that vicarious liability automatically attributes responsibility for discrimination to an organization for the acts of its employees or agents, done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.
Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment, although since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, vicarious liability under section 46.3 of the Code is restored. Further, in these cases the “organic theory of corporate liability” may apply. That is, an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization. In such cases, the decisions, acts, or omissions of the employee will engage the liability of the organization where:
- The employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that is contrary to the Code; or
- The employee who is part of the ‘directing mind” does not respond adequately to harassment or inappropriate behaviour of which he or she is aware, or ought reasonably to be aware.
Generally speaking, managers and central decision-makers in an organization are part of the “directing mind”. Employees with only supervisory authority may also be part of the “directing mind” if they function, or are seen to function, as representatives of the organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for the guidance of employees. For example, a member of the bargaining unit who is a lead hand may be considered to be part of the “directing mind” of an organization.
Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203 (Ont. Bd. Inq.) at para. 63: “The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the complainant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate the conditions”.
Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 at paras. 162-67 (Ont. Bd. Inq.). These factors assist in assessing the reasonableness of an organization’s response to harassment. A reasonable response by the organization will not affect its liability but will be considered in determining the appropriate remedy. In other words, an employer that has reasonably responded to harassment is not absolved of liability but may face a reduction in the damages that flow from the harassment.