Thoughts from a Management Lawyer

Reprisals under the Human Rights Code

The next two posts will deal with reprisals under statutes (specifically the Human Rights Code and the Employment Standards Act, 2000).   

The cases I will discuss are recent and were decided in favour of the complainant.  They provide important lessons for employers.  

The first case arises under the Human Rights Code.  The Tribunal in Morgan v. Herman Miller Canada Inc., (2013) HRTO 650 (CanLII) considered, among other things, the reprisal provisions in the Code.  The case related to claims of alleged discrimination and harassment with respect to employment because of colour and reprisal.

The Applicant worked for the Respondent for approximately 2.5 years as a Installation Scheduler.  He named, as a respondent, the President of Workplace Resource a division of Herman Miller.

The Tribunal summarized the allegations as follows:

1.    That the applicant was assigned tasks outside of his job description (the “discriminatory allocation of tasks”), including:

• • That the applicant was routinely required to work outside regular business hours, including having to respond to emails and his pager; and
  • That he was assigned menial tasks and that as a black man “Mr. Fermo believed that it was the applicant’s duty to act like a janitor or a moving man” and as a “servant”.

2.    That the applicant was unfairly put on probation because of an incident that occurred in May 2008 and that thereafter he was ignored and treated in an adverse manner by [the individual respondent] because he was a “black man”. The applicant further alleges that he was alienated by the entire management team (the “probationary incident”);

3.    That the applicant raised a human rights issue in the winter of 2008 with respect to an email that was sent about an installation team that stated that the team looked like they were “picked up off a street corner”. The applicant alleges that this was a discriminatory comment because the installation team was “all black” (the “email incident”); and

4.    That when the applicant complained about the “mistreatment instead of passively accepting the demeaning role that they wanted me to take”, no one at Herman Miller got back to him and then his employment was terminated as a reprisal.

The Tribunal reviewed the evidence, in detail with respect to each allegation and concluded that there was no breach of the Code whatsoever in respect of the matters found at (1) to (3) above.  There was no basis to find in favour of the Applicant on those points. 

The Tribunal then examined the evidence regarding the termination of the Applicant's employment and the various “version of events”.  In the end, the Tribunal found that:

... the decision to terminate the applicant’s employment was made as a reprisal because the applicant claimed his Code rights by raising issues of harassment and discrimination in his workplace.  I also find that the respondents failed to adequately address, or take any steps in response to, the applicant’s allegations of discrimination and harassment.

With respect to the issue of adequately responding to complaints under the Code the Tribunal referenced its earlier decision in Laskowska v. Marineland of Canada Inc. 2005 HRTO 30.  In this case, the Tribunal affirmed, citing Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19:

Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code: Dhillon v. F.W. Woolworth Company (1982), 3 C.H.R.R. D/743; Olarte v. DeFilippis and Commodore Business Machines Ltd. (1982), 3 C.H.R.R. D/1705; Persaud v. Consumer’s Distributing Ltd. (1990), 14 C.H.R.R. D/23.

 .... The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment. 

Once the Code is engaged, the employer owes a duty to “reasonably and adequately respond to the alleged incident”.  But what does this mean?  The Tribunal in Laskowska  distilled the obligation down to three criteria:

1. Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy?  Was there a proper complaint mechanism in place?  Was adequate training given to management and employees;
2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action:  Once an internal complaint was made, did the employer treat it seriously?  Did it deal with the matter promptly and sensitively?  Did it reasonably investigate and act; and
3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication:  Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment?  Did it communicate its findings and actions to the complainant?

The Tribunal in Morgan concluded that the Respondent failed to “act reasonably in addressing the applicant’s allegations of Code-related harassment and discrimination in an adequate and appropriate manner.”

On the issue of reprisal, the Tribunal accepted, relying on Noble v. York University, 2010 HRTO 878 that the following elements had to be established to make out the claim:

1. An action taken against, or threat made to, the complainant;
2. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
3. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

1. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
2. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

Following an assessment of the evidence, including the credibility of the witnesses, the Tribunal found that the Applicant’s employment was terminated as a reprisal “ because the applicant claimed his Code rights by raising issues of harassment and discrimination in his workplace”  

The Tribunal ordered:

1. Compensation for Lost Wages and Benefits in the amount of $55,799.70, less deductions.  There appears to have been no evidence called with respect to the Applicant’s benefits loss and such claim was denied.
2. Compensation for injury to dignity, feelings and self-respect in the amount of $15,000 were awarded.  The Tribunal considered the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination in arriving at this amount.  
3. Future compliance remedies were also awarded in this case.  Specifically, the tTribunal ordered the employer to “retain an expert in human rights, of its choosing, to review its human rights policies and to train all of its current employees holding the rank of manager or higher and those employed in human resources who perform work in Ontario with respect to the revised human rights policy, the Code and how to respond to allegations of harassment and discrimination.”
4. The individual Respondent was no longer employer by the Corporate Respondent and was ordered to complete the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission.

This is a significant case and one that demonstrates that employers who become aware of possible human rights issues must act with diligence and dispatch and, to use the words of the Tribunal “reasonably and adequately".  Furthermore, reprisal complaints can be costly.

 

 

Reasonable Prospect of Success and Removing Personal Respondents from Human Rights Applications

The Ontario Human Rights Tribunal in Klumpenhouwer v. Lowe’s Companies Canada, ULC, 2013 HRTO 330 (CanLII) recently considered whether to dismiss an Application under the Human Rights Code because there was no reasonable prospect that the Application or part of the Application will succeed.  Further, the employer sought to have a named respondent removed from the Application.

The Applicant was a newly hired employee who was attending a training program at a location in a different city that required that the Applicant and other employees stay overnight in a hotel, the cost of which was paid by the Respondent.

According to the Tribunal’s summary:

… the applicant’s roommate requested to change rooms after he came into their room and smelled marijuana. The roommate changed hotel rooms. The next day when the applicant arrived at work, he was told that his employment was terminated effective immediately and no reasons were given for his termination. 

The Applicant admits that he smoked marijuana on the night in question. 

Test for Reasonable Prospect of Success

The Tribunal is authorized under the Rules of Procedure to hold a summary hearing to determine “whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.”

In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of a violation of the Code.

The leading case is Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII): 

… In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

 In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated.  Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

 In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent.  Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved.  The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination.  However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

During the hearing, the Applicant abandoned his allegations that the respondent had discriminated against him on the basis of race and colour and his only allegation was that he was discriminated against on the basis of disability.   Specifically, the Applicant alleged that he was addicted to marijuana.  Accordingly, the Tribunal refused to dismiss the Application on the basis that the Application had no reasonable prospect of success. 

The Tribunal also instructed the Applicant “to establish his disability, the Tribunal would expect that medical documentation and/or medical evidence would be submitted by the applicant and failure to provide this documentation and/or evidence may result in his Application being dismissed.”

Removing Personal Respondents

Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party.

The Tribunal in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 (CanLII)

Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason.  A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

The leading case of Persaud v. Toronto District School Board, 2008 HRTO 31 (CanLII), 2008HRTO 31, elaborated on the factors that the Tribunal should consider in deciding whether to remove a personal respondent from the Application:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

• Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

• Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

• Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

• Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

• Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

Accordingly, the Tribunal removed the personal respondent from the Application. 

In the Lowes case, there was no allegation of harassment or discrimination specifically against the individual respondent and the corporate respondent maintained that it was vicariously liable for the conduct of the individual respondent who they maintained that he was acting in the course of his employment.

Ontario Government Releases Pinto Report

Check out my firms blog on the Ontario Governments recent release of the Pinto Report on Human Rights Review in Ontario.

Duty to Accommodate Requires a Plan

The Ontario Human Rights Tribunal did an excellent job of succinctly explaining the duty to accommodate in Black v. Etobicoke Ironworks:

The duty to accommodate has procedural and substantive components. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.

The Tribunal in Hamilton-Wentworth District School Board recently discussed the obligations of the employer and the employee in the accommodation and cited the Ontario Human Rights Commission Guidelines on Accommodation:

The person with a disability is required to:

• advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
• make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
• answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
• participate in discussions regarding possible accommodation solutions
• co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
• meet agreed-upon performance and job standards once accommodation is provided
• work with the accommodation provider on an ongoing basis to manage the accommodation process
• discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.

The employer is required to:

• accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
• obtain expert opinion or advice where needed
• take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate
• keep a record of the accommodation request and action taken
• maintain confidentiality
• limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
• grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
• bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.

While lacking the force of law, the Guideline are instructive.  The employer obligations are understated in the Guidelines to the extent that they can be interpreted as suggesting passivity and "catching rather than pitching" in the accommodation process.  The cases seem to suggest that employer's who are proactive while sensitive to the  accommodation obligations and individual needs of employees requesting accommodation, are in a better position when challenged.  

The Tribunal concluded in both cases that the employer had failed to fulfill its duty to accommodate under the Human Rights Code.  In Hamilton-Wentworth District School Board, the Tribunal held that, in the circumstances of that case, the employer "failed to actively, promptly and diligently canvas possible solutions to the applicant's need for accommodation".  

Though both cases did not go the employer's way, they are worth reading closely as many important lessons can be gleaned from them. Recognizing that each case will need to be considered on its individual merits, the cases suggest that employers should take a reasonable and proactive approach to accommodation.  Being patient is important and has its place, but employers should be aware of their obligations and ensure that they are deliberate and strategic in meeting those obligations.

 

Arbitrary, discriminatory or in bad faith - what's it mean?

My new blog post (Arbitrary, discriminatory or in bad faith - what's it mean?) dealing with the high-test for establishing a breach of the unions' duty of fair representation is up at the Watershed LLP Blog. 

Quantifying Intangible Losses under the Human Rights Code

This is my most recent post from the Watershed LLP Blog.  

The Ontario Human Rights Tribunal released a decision this week in which it found that the employer had discriminated against the employee when it terminated her employment.  Specifically, the Tribunal found that it was "more likely than not that the applicant .... was dismissed because of her sex".

The Tribunal, in discussing the appropriate remedy, considered whether any amount should be awarded to the applicant as compensation to address the effect of the breach of the Code on her dignity, feelings and self-respect under section 45.2(1)1 of the Code.  As the Tribunal noted, section 45.2(1)1:

... encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

As the Tribunal observed, quantifying these damages is not easy.

A leading case in this area is Arunachalam v. Best Buy Canada where the Tribunal observed:

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages.  The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects.

In terms of figurring out what amount should be awarded, like decisions should be treated similarly in terms of quantum, and:

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination.

* * *

At the same time it has recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate.

This is all well and good, but, really, determining the quantum is somewhat of an arbitrary exercise, though the following factors have been considered:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

Damages for intangible losses must not be unduly high or unduly low and must strike a balance between applicant and respondent.  In this case, the Tribunal awarded $10,000.  

Again, where this number comes from, who knows.  It's a number, really pulled out of thin air and largely based on what the applicant says on the stand.  In that sense, it's determination is, to quote the Tribunal, "a difficult exercise".

 

Dismissing Human Rights Applications Against Franchisors

I've written a post on the Watershed LLP Blog called Dismissing Human Rights Applications Against Franchisors.   Please read it there and subscribe through the RRS feed if you're so inclined.

 

Deferral of Human Rights Complaint

The Human Rights Tribunal will defer an Application under the Human Rights Code to avoid the possibility of proceedings running concurrently reaching conflicting results.  The most recent case is Daykin v. Ford Motor Company of Canada where the Tribunal applied a consistent line of principles to the effect that:

The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them see, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 (CanLII), 2009 HRTO 438, at para. 10 and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779 (CanLII), 2010 HRTO 1779.

Where, as in this case, there is a pending grievance based on the "same facts and human rights issues", the Tribunal will generally defer the Application.  This is what they did in the Daykin case and they held that this was the "most fair, just and expeditious approach". 

 

Human Rights Tribunal is Not a Panacea for Workplace Disputes

So says the Human Rights Tribunal itself in Reid v. Molson Coors Canada which involved a Summary Hearing.  According to the Tribunal:

The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure.  In a summary hearing, the issue is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

The Tribunal dismissed the application as there was "no real prospect that the Application will succeed".  The Tribunal observed:

It is evident that the parties are engaged in a number of work-related disputes and that the applicant feels that he has been treated unfairly by the respondents and his union. The Tribunal, however, is not a panacea for workplace disputes and general allegations of unfairness.  The Tribunal’s authority is to determine whether there has been discrimination on a ground prohibited by the Code or a reprisal for asserting one’s Code rights.

This is another case in a growing line of cases where the Tribunal has taken a narrow and foccused view of its role and function.  

Advancing Human Rights Claims in Court

Mr. Justice Echlin in the recent case of Anderson v. Tasco Distributors (January 10, 2011) considered a motion to strike out certain paragraphs of a statement of claim dealing with the duty to accommodate.  The main basis for the motion was that the Court was without jurisdiction to hear a claim for breach of a provision of the Ontario Human Rights Code. 

The Court dismissed the motion with costs and held that:

Amendments to the Ontario Human Rights Code have now created the right under s. 46.1(1) to claim compensation in a civil proceeding for a breach of Part I of the Code.  The only qualification to this is found in 46.1(2) which prohibits commencement of an action based solely on an infringement of Part I.  In Honda v. Keays, 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362 at para. 63, Bastarache J., in speaking for the majority, indicated that a plaintiff could advance a breach of the Code as a cause of action in connections with another wrong.  While Seneca College v. Bhadauria, 1981 CanLII 29 (S.C.C.), [1981] 2 S.C.R. 181 was cited, subsequent appellate civil decisions have significantly diminished its impact and modified its ratio decidendi.  Given the recent legislative changes, I am not satisfied that it is of assistance in this instance.

The pleading is was found to be sufficient to found a claim for wrongful dismissal and a claim for a breach of the Code.