Tables

Table 1: New Complaints Filed by Social Area and Grounds Cited

(Total = 2337)

Table 2: Monetary Damages in Settlements by Ground

Table 3: Cases Completed or Referred, by Disposition and Grounds

(Total = 2118)

Table 4: Cases Completed or Referred, by Disposition and Social Area

(Total =2118)

Cases Completed or Referred by the Commission 2006-2007

(Total =2118)

¹ These cases were dismissed after a Commission decision based on written submissions.
² Complaints dismissed under section 36(2) of the Code include cases where the evidence did not warrant a hearing, or the procedure was not appropriate. Also included are the 6 cases (less than 0.5%) where the complainant did not participate in the Commission’s investigation or the Commission was unable to contact the complainant.
³ 140 complaints were referred to the Human Rights Tribunal of Ontario (Tribunal) under section 36(1) of the Code. A further 3 complaints, which had previously been closed by the Commission, were referred to the Tribunal after reconsideration under section 37 of the Code.

Case Summary Highlights

The following are highlights of some of the significant settlements, decisions and court cases over the past year in which the Commission was involved. Important public interest remedies were sought and obtained by the Commission in these cases.

Commission Settlements 

Nursing and Discrimination based on Colour
Commission staff mediated a complaint containing allegations of discrimination based on colour against an organization specializing in nursing outreach. In this complaint, the complainant, who identifies as a Brown person, alleged that she was treated unequally and subjected to harassment in her employment, which ultimately caused her to leave her position.

In settling the complaint, the corporate respondent agreed to write a letter of regret to the complainant, provide a letter of reference, and to modify her record of Employment.
The corporate respondent also committed to a number of public interest remedies, including:

• providing staff education
• incorporating a component on discrimination and harassment in training for new employees and management.
• disseminating links to its Discrimination and Harassment Policy, Human Rights Policy, and Grievance Policy and Procedure, to all staff across Ontario
• providing its management and supervisory staff with a copy of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate

School Board
Commission staff conciliated a case concerning allegations of discrimination based on ancestry, disability and race against a school board. The complainant’s litigation guardians indicated that the complainant experienced discrimination at school based on his Aboriginal heritage, and stated that he was subjected to unfair discipline under the “safe schools” provisions of the Education Act for behaviour that was directly related to his disability.

This settlement, facilitated by the Commission, integrated culturally-specific personal and public interest remedies. The school board and the family agreed to participate in a Talking Circle, and to engage with an Aboriginal youth counsellor to mediate issues between the family and the school as they arose.

The school board agreed to take into account the recommendations of medical specialists in determining any disciplinary consequences for the complainant. Board staff were given permission to consult with medical specialists about the complainant’s accommodation needs, and the board invited the family to collaborate in the accommodation process on an ongoing basis through case conferences and consultations with the principal. Other personal remedies included a payment for extra-curricular activities and an investment into a Canada Savings Bond.

Public interest remedies included the board’s agreement to review its race and ethno-cultural policy and the anti-racism component of its various bullying programs and curriculum, and written assurance that it will continue to ensure that its approach to suspensions and expulsions takes into account the human rights of students in accordance with the Code, and will continue to take into account mitigating factors.

Decisions at the Human Rights Tribunal of Ontario

Renata Braithwaite and Robert Illingworth v. Attorney General for Ontario and Chief Coroner of Ontario (Tribunal Decision)
Renata Braithwaite’s mother and Robert Illingworth’s brother died while they were being involuntarily detained in psychiatric facilities. Requests that the Coroner conduct inquests into these deaths were denied. Under s.10(2) of the Coroners Act the Coroner has a discretion to decide whether to order an inquest into the death of an involuntary patient in a designated psychiatric facility. Where a person dies in prison, however, the Coroner must hold an inquest. He has no discretion to refuse to do so.
The Tribunal held that s.10(2) violated the Human Rights Code because under s.10(4) of the Coroners Act, members of a group comparable to involuntary psychiatric patients, prisoners, were automatically given an inquest upon death. The families of prisoners were given the right to know how their loved ones died. In contrast, the families of patients in psychiatric facilities, for many of whom the loss of liberty is similar, were denied the finality and closure that an inquest brings.

The Tribunal ordered that s.10(2) of the Coroners Act not be applied in this case. It directed the Chief Coroner to hold inquests into these two deaths and awarded $5,000 in damages to the family members.

The Attorney General and the Chief Coroner have appealed this decision to the Divisional Court.

Rosalyn Forrester vs. Regional Municipality of Peel Police Services Board (Tribunal Decision)
Ms. Forrester was strip-searched by Peel Police on several separate occasions. As a pre-operative transsexual woman she repeatedly asked to have female officers conduct these searches, but her requests were denied. Peel Police policy at the time required a male officer be involved in the search because the complainant had not yet had sex reassignment surgery.

Finding the previous policy discriminatory, the Tribunal ordered that a transsexual detainee who is going to be strip-searched must be given three options: the use of male officers only; the use of female officers only; or a split search involving both. It provided direction on how such searches should be conducted, including a requirement that the officer-in-charge be informed and authorize the strip search. Direction was also given on how to resolve the situation where an officer has serious reason to doubt a detainee’s self-identification as a transsexual person. The Tribunal order also states that officers are not allowed to “opt out” of performing strip-searches of a transsexual person except in limited circumstances where the officer has significant Human Rights Code or Charter of Rights and Freedoms interests of his or her own to protect. Finally, the order requires Peel Police to produce a training video on transsexuality for all members of its force, in conjunction with experts, and with input from the transsexual community. The Commission must approve the video prior to its release.

Michelle Hogan, Martine Stonehouse, A.B. and Andy McDonald v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care (Tribunal Decision)
Before October 1, 1998, the provincial government provided public funding for sex reassignment surgery to persons who were approved for that surgery by the Gender Identity Clinic (the "Clinic") at what is now the Centre for Addiction and Mental Health ("CAMH"). The Clinic would grant its approval if satisfied that, among other things, the person had successfully completed a real-life test by living publicly in the desired gender role for two or more years.

Effective October 1, 1998, the government removed public funding for sex reassignment surgery for all persons who had not already received Clinic approvals for surgery.

Four complainants who received Clinic approvals for sex reassignment surgery after October 1, 1998, challenged the government's decision to remove public funding. The Commission and the complainants argued before a three-member panel of the Tribunal that the government's decision to remove funding amounted to discrimination with respect to services because of sex and/or disability.

A majority of the panel held that the government's removal of public funding for sex reassignment surgery was not itself discriminatory. However, it held that the government did discriminate on the basis of sex and disability against persons who had started medically-supervised transitions before October 1, 1998, and who received approvals for surgery from the Clinic within six years of having started their transitions. These persons should have received public funding for surgery, to allow them to complete the gender transitions they had begun at a time when public funding for surgery was still available.

Applying these criteria, the Tribunal majority held that three complainants had been subjected to discrimination, and ordered the government to provide them with funding for surgery, and with general damages ranging from $25,000 to $35,000 per person.

One dissenting member of the Tribunal would have held that the government's decision to remove public funding for sex reassignment surgery was discriminatory, arbitrary, reckless and an abuse of power. She would have ordered the government to fund sex reassignment surgery for all four complainants, since all four met the criteria for funding that had existed prior to October 1, 1998.

The Commission has filed an appeal to the Divisional Court.

Eleanor Iness v. Caroline Co-operative Homes Inc., Canada Mortgage and Housing Corporation (Tribunal Decision)
Until 1994, Caroline Co-operative Homes Inc. (“Caroline Co-op”) had a formula for setting tenants’ rents at 25% of a tenant’s income. In May of 1994, Canada Mortgage and Housing Corporation (“CMHC”) did a review of Caroline Co-op, and advised Caroline Co-op that the Co-op was not setting rents as called for in the agreement between Caroline Co-op and CMHC.

Eleanor Iness (“Iness”) moved into the Caroline Co-op in 1981. Before January 1, 1995, Iness’ rent was calculated as a percentage of her monthly income, as was the rent for all tenants whose rents were geared to income. Effective January 1, 1995, for tenants in receipt of social assistance benefits, including Iness, Caroline Co-op set the rent according to the maximum available shelter allowance that each was eligible to receive. Before this, Iness was able to receive a shelter allowance that covered not only her rent, but also her utilities and insurance, but as a result of the 1995 change, she could no longer “add” her utilities and insurance costs to her rent. The Tribunal found that the Co-op ought to have set Iness' rent so as to allow her to meet her rent, hydro costs and insurance costs out of the shelter component of her benefit. It made the following orders with respect to the Co-op’s future practice:

• Set the housing charge for its members who are in receipt of public assistance in such a way that they may pay the sum of their housing charge, hydro costs and insurance costs out of the amount they receive as the shelter component of their public assistance benefits.
• Respect the dignity of its members who are in receipt of public assistance by treating their source of income in the same way they would if their income were derived from paid employment.
• Refrain from having unauthorized direct dealings with the social benefits' authorities to discuss the quantum of benefits pertaining to housing available to persons in receipt of public assistance.

The case has been appealed by the Co-op to the Divisional Court.

Clive R. Stephens and Joseph O. Symister v. Lynx Industries Inc., et al. (Tribunal Further Decision)
This decision dealt with a request by the Commission that the Tribunal reconsider its earlier decision ordering that the Commission pay costs, rendered in an earlier Stephens decision of November 7, 2005 (2005 HRTO 47). The Tribunal found that in this particular case, the failure to have the parties exchange written submissions (or otherwise exchange arguments) beforehand, coupled with the one-day timeframe for the hearing which was limited to submissions only, and no opportunity for the parties to provide oral evidence, made it difficult, if not impossible, for the parties to know the case they were expected to meet at the hearing and to respond adequately to it. Accordingly, the Tribunal was able to reopen its own proceeding since there had been a breach of natural justice, and vitiate the earlier decision.

Michael McKinnon v. Her Majesty the Queen in Right of Ontario (Ministry of Correctional Services), and Geswaldo, Simpson, James and Hume (Tribunal Further Decision)
This is the third major decision (the previous two being in 1998 and 2002) involving a finding of significant racism in the province's jails. In this most recent decision the Tribunal ordered further remedies in an effort to implement its earlier orders.

Commission counsel made extensive submissions to the Tribunal regarding the urgent need for training to take place amongst all staff members. The Tribunal made a number of orders, including:

• a requirement that an evaluation be done to determine if there is a need for an Aboriginal issues co-ordinator,
• clarifying the types of recommendations that can be made by external investigators looking into discrimination in the prisons,
• creation of a province-wide tracking system of discrimination complaints
• importantly, requiring that the Ministry ensure that its managers and other employees participate in, and comply with, the requirements of training programs and that such participation shall be enforced by appropriate action, involving discipline up to and including removal from positions of power and discharge.

Arzem, et al v. Her Majesty the Queen in Right of Ontario (as represented by the Minister of Community and Social Services, the Minister of Education, and the Minister of Children and Youth Services) (Tribunal Interim Decision)
Between August 12, 2003 and December 15, 2005, the Commission referred 245 cases to the Tribunal. All complainants are minors who are afflicted with Pervasive Developmental Disorders, which includes Autism Spectrum Disorder (“autism”), and Asperger’s Disorder. The Commission and the complainants allege that they had been subjected to discrimination in services because of disability, in that services for these disorders are not provided after the age of six. The definition of "age" in subsection 10(1) of the Code defines age to mean “an age that is eighteen years or more".

This was a decision on a motion under the Canadian Charter of Rights and Freedoms. The Tribunal granted the motion and, in an extensive and far-reaching decision, held that for the purpose of these proceedings—the definition of “age” in subsection 10(1) of the Ontario Human Rights Code, infringes subsection 15(1) of the Charter and that the limit on the right cannot be demonstrably justified in a free and democratic society as required by section 1 of the Charter.

Settlements at the Human Rights Tribunal of Ontario

Because the Commission has carriage of the complaint at the Tribunal, settlements almost invariably involve the inclusion of strong public interest remedies. Since the Commission must sign the Minutes of Settlement, it can negotiate for these remedies, particularly in cases that may initially appear to affect only the individual, but which, in fact, have a broader public interest component. Under the terms of each of these settlements, there was no admission of liability, nor was there a withdrawal of the allegations.

Nadia Abel, Lee Middleton, Christa Provo & Rob Provo v. Royal Steter Ltd. and Cosby (Tribunal Settlement)
The four complainants went to a Burger King location in Niagara Falls in January 2002. They alleged that, while they waited in line to make an order, the security guard on duty, without any valid reason, told them that they had to leave the restaurant. After they questioned him, the situation escalated and it was alleged that the complainants and two of their friends were ultimately all made to leave the restaurant. The complainants claimed that they were the only black customers out of over 40 persons at the restaurant at the time and that security guard targeted them because they were black. They also allege that subsequent complaints to Burger King management were not taken seriously.

Royal Steter Ltd. agreed to pay compensation to each of the complainants. More importantly, the Commission sought and obtained a number of public interest remedies designed to address future behaviour. Royal Steter Ltd. agreed to require that all security companies, currently retained or who bid for contracts, must train their officers on human rights and racial profiling, and acknowledge an obligation by the security company and its officers to comply with human rights legislation. Failure to do so could result in the termination of the contract between the corporate respondent and the security company.

Royal Steter Ltd. also agreed to establish a clear customer complaint policy that is posted at the Burger King location involved in this case. That policy, as posted, shall identify a designated manager or other representative as the contact person for a complaint. It agreed to develop and implement a written anti-discrimination and anti-harassment policy by March 1, 2007. The policy addresses employee responsibilities under the Code in dealing with the public, and discusses the phenomenon of racial profiling. Royal Steter Ltd. will provide copies of the policy to all current and future employees and post it in a prominent location accessible to all employees. It will also provide human rights training to all current and future managers, and ensure that future training includes a discussion of the policy.

Nafis Anwar, Fatin Nasir, Jamil Malik, Nazir Sheikh, Muhammad Tariq, v. Choice Taxi Inc., Leishman, McMurray, Thompson, Leishman, Blanchard, Brunet, Duperron, Vervoort, Ayotte, Jerou, St. Denis, Simpson, Anderson, Menzies, Nakic, Huygen, Sauvé, St. Denis, Lalonde, MacInnes (Tribunal Settlement)
This is a systemic case involving five South Asian cab owner/drivers who allege that the respondents marketed themselves as an all-white taxi company and only allowed white, Canadian-born owners/drives to join them. The complainants further allege that the respondents’ marketing and hiring practices have incited members of the public to discriminate against South Asian taxi drivers which has led to harassment and a poisoned work environment.

Some compensation was provided to the complainants. More importantly, Choice Taxi has agreed to provide a letter of offer to all South Asian taxi license owners, who receive dispatch service from it and who are currently non-shareholders, to become equal shareholders of the corporate respondent. Choice Taxi has agreed to develop and implement an Equity policy and an Anti-Racism policy. It has agreed to place an advertisement in the Cornwall Standard-Freeholder that clearly indicates that Choice Taxi is an “equal opportunity employer and encourages applications for owners, drivers, dispatchers and employees or contractors from qualified Aboriginal people, people with disabilities, racialized persons and women” and to include the same language on all job postings. It will also provide training on the aforementioned anti-racism and equity policies and to retain a human rights consultant to assist them in the development of the policies and training.

Kimberly Altenburg, Kimberly Brehm, Meenakshi Chail, Kathy Delarge, Sharon Dunbar, Irene Hein, Jacqueline Herold, Jean Hewer, Theresa Kaufman, Betty Knott, Narinjan Lamba, Penny Lang, Arlene Lupton, Judy Maerten, Vicki McMahon, Genevieve Phillips, Cathy Riddell, Sandra Rollerman, Virginia Schlotzhauer, Lynda Swan, Sheila Thomas, Colleen Tiemens, Debbie Tulloch, Linda Van Arkel, Doreen Waldron. v. Johnson Controls Limited (Partnership) and Johnson Control Inc. (Tribunal Settlement)
The complainants were all formerly employed with Johnson Controls, a large corporation, at their Stratford Plant location (the “Plant”), until its closure on December 14, 2001. They allege discrimination based on disability in relation to their pension benefits, which were set out in an agreement between Johnson Controls and the union. The agreement allowed employees to apply for early retirement, prior to age 65, if they: (1) had more than 30 years of service, regardless of age; (2) were between 60 and 64 and had 10 years or more of service, and (3) were either permanently or totally disabled and had 10 years or more of service.

In anticipation of the final closure of the Plant, Johnson Controls and the union negotiated a closure agreement, which included a term that allowed able-bodied employees in the first category to receive an early retirement pension and benefits after the plant closure date. Employees with 30 or more years of service did not have to formally apply for early retirement prior to the Plant closure date. They could make that election, after the Plant closed, if they chose to retire. However, the parties did not negotiate a similar provision in the closure agreement for employees in the second and third categories.

On December 11, 2001, employees of the Plant received a notice with respect to the pension windup, which did not include a warning to those in the second and third categories that they needed to make an application for a pension prior to the Plant’s closure on December 14, 2001. In fact, most of the disabled workers were off work on extended disability benefits and/or workplace safety and insurance benefits. They were not aware of the need to make their early retirement applications prior to Plant closure. Consequently they made their applications after the Plant closure date.

Johnson Controls granted an indulgence and extended the right to apply for early retirement after closure date to employees that fell within the second category and employees who were very close to 30 years of service, (between 27 to 29 years). However, the disabled employees in the third category did not receive this extension.

Under the settlement, negotiated by Commission counsel, the closing agreement will be amended to allow the complainants to apply for pension and retiree health care benefits with different options, including a provision for now deceased employees. Johnson Controls also acknowledged its obligations to keep disabled employees fully advised of their rights and entitlements to any and all changes with respect to their employment related benefits, specifically with respect to retirement health care benefits and pension benefits. This extends to employees not actively employed but absent from the workplace on account of sick leave, WSIB, LTIP and /or any other disability related paid or unpaid leave.

Gurcharan Dran v. Paramount Canada’s Wonderland Inc. (Tribunal Settlement)
Gurcharan Dran is Sikh and as part of his religious beliefs he is required to wear a turban. On July 21, 2001, he bought tickets for a go-kart track ride at Paramount Canada’s Wonderland. However, he was not allowed on the ride as regulations under the Technical Standards and Safety Act, 2000 require all patrons to wear a helmet.

Canada's Wonderland stated that they would like to accommodate the individual requirements of patrons wearing a turban or other religious headgear, but they are currently statutorily required to mandate that all persons wear helmets when operating a go-kart.

Canada's Wonderland agreed to pay some compensation to Mr. Dran. More importantly, it agreed to request a variance from the Director of the Technical Standards & Safety Authority (the “TSSA”) and an exemption from the responsible Minister to allow Sikh patrons to ride Speed City Raceway without a helmet where those patrons are required, as part of their faith, to wear a turban. In addition, the Commission, as part of the settlement, also agreed to write a letter to the Director and the Minister. The Commission has done so and is following up with both in an effort to secure this exemption province-wide.

Marcos Henriquez, Constanza Reyes, Dean Mills and Arthur Viglianti v. General Motors Defense, a division of General Motors of Canada Limited (Tribunal Settlement)
These were complaints based primarily on the complainants' citizenships. General Motors Defense ("GMD") was a division of the respondent, General Motors of Canada Limited ("GMCL"). Located at a plant in London, GMD manufactured military vehicles for various governments, including that of the United States.

Sometime before August 19, 2002, GMD began to produce "light armoured vehicles" for the United States government. In order to produce these vehicles, GMD received material and data that was exported from the United States. Federal Canadian laws set out rules concerning access to some of this military technology. Among other things, the Canadian law incorporates rules from American export control laws stating that no person who holds a citizenship other than Canadian or American can have access to certain information, unless a security clearance has been obtained from the U.S. State Department.

The complainants are Canadian citizens or landed immigrants who also hold citizenships from countries other than Canada or the United States. They all started working at GMCL in 2001 or 2002 on a contract basis after being recruited by personnel agencies that supplied workers to GMD. They were not in a union.

The complainants alleged that on August 19, 2002, GMCL called them and other workers with citizenships other than Canadian or American to a group meeting, where it told them that they were being sent home with pay for reasons relating to their citizenship. The complainants say that GMCL did not apply for security clearances on their behalf, and that while unionized workers were later returned to work, albeit with restrictions on their former duties, they were never allowed to return.

Monetary remedies were provided to the complainants. In addition, the Commission is proceeding with other complaints, brought by unionized members, against GMD, concerning, among other things, its alleged failure to apply for security clearances for affected workers. The Commission will be able to seek public interest remedies, if appropriate, in those cases.

Matt Kurrek v. Ministry of Health and Long-Term Care and Ontario Medical Association (Tribunal Settlement)
In April 2000, the Ministry of Health and Long-Term Care (MOHLTC) and the Ontario Medical Association (OMA) entered into an agreement whereby the MOH would fund, and the OMA would administer, a Maternity Leave Benefits Program (MLBP). The stated purpose of the MLBP was to provide an opportunity for physicians who wish to spend time with their child after birth by reducing the financial hardship of being away from their practice. The MLBP provided benefits of a maximum of $880.00 per week to eligible physicians for 17 weeks. Eligibility for the MLBP was restricted to female physicians.

Prior to the birth of his second child, Dr. Matt Kurrek applied for benefits under the MLBP in August 2000. It was his intention to stay at home with his newborn while his wife returned to work. Dr. Kurrek’s application was rejected and he was advised that he was ineligible to receive benefits under the MLBP as benefits were available to female physicians only. Dr. Kurrek subsequently filed a human rights complaint. The Commission took the position that the denial of benefits to the complainant was a violation of section 1 of the Code – discrimination with respect to services because of sex. The respondents took the position that the MLBP was a “special program” within the meaning of section 14 of the Code.

In 2005, the OMA and the MOHLTC replaced the MLBP with a Pregnancy and Parental Leave Benefits Program. Under this program, female physicians are entitled to receive a pregnancy leave benefit, in order to allow them to take time away from their practice to recover from the physical and psychological aspects of pregnancy and childbirth and to establish breastfeeding. In addition both male and female physicians are entitled to a parental leave benefit to provide an opportunity for these physicians to spend time with their child following birth or adoption. Subsequently, the parties agreed to settle the complaint upon payment of compensation on account of legal fees.

Gerard Loisel v. The Niagara Regional Police Service (Tribunal Settlement)
The complainant, Gerard Loisel, is deaf. In April 2002, he was involved in a dispute when police officers were called. Mr. Loisel was later arrested. At the police station, the police took Mr. Loisel’s personal items, including his glasses and hearing aid, and placed him in a cell. During the night, the respondent proceeded to complete the formalities of the arrest. Mr. Loisel did not have his glasses or hearing aid nor was he provided with an interpreter. The Commission’s investigation alleged that the policy of removing communication devices from detained individuals was problematic and that there was a lack of clear procedures to ensure that Mr. Loisel’s disability needs were properly accommodated. The case was referred to the Tribunal.

The police agreed to pay some compensation to Mr. Loisel. More importantly, it agreed to review and amend its policies relating to the confiscation of personal property belonging to persons in custody and access to interpreters where the detained individual has a disability. In particular, it agreed to amend its General Order-018.06 in respect of “Persons in Custody” by adding a new section (6.1.0) entitled, “Compliance with the Ontario Human Rights Code”, which stated that although it may be reasonable to remove a walking stick from an aggressive detainee, it may not be reasonable to relieve a person of his/her hearing aid when required for communication purposes.

James Lyons, Jim Westwood v. City of Toronto and Toronto Professional Firefighters Association – Local 3888 (Tribunal Settlement)
Mr. Lyons and Mr. Westwood complained that the City of Toronto and the Toronto Professional Firefighters’ Association discriminated against them because of age, by failing to permit them to work past the age of 60. When the various boroughs amalgamated their fire services in 1998, firefighters who came from boroughs where the retirement age was 65 were permitted to remain in employment until that age. By contrast, firefighters such as the complainants, who had been employed by boroughs with a retirement age of 60, were required to retire at that age.

Since that time the policy changed so that all firefighters may stay on until the age of 65. Since these complaints arose at a time when the Code did not allow complaints based upon age discrimination for over-65 year olds, there was no public interest remedy needed for the resolution of these complaints. The Human Rights Code has since been amended to prohibit discrimination past the age of 65.

In January 2007 the parties reached a resolution of all outstanding matters such as salary, service and benefits. By this time, the complainants had been returned to the workplace.

Michael McKinnon v. Ontario Public Service Employees Union, Dewar, Keilty, Spencer, Sellick, DeFreitas, Johnson, Casselman (Tribunal Settlement)
The complainant, Michael McKinnon, alleged that the Ontario Public Service Employees Union (“OPSEU”) and the named personal respondents either launched or supported reprisal actions against him for previously filing a human rights complaint with respect to his racially poisoned work environment.

The Commissioners referred only two portions of the complaint to the Tribunal, namely that OPSEU should not have removed the complainant from the union and that OPSEU should not have supported the personal respondents’ actions in filing a work refusal against the complainant pursuant to the Occupational Health and Safety Act.

OPSEU maintained that Mr. McKinnon’s membership was suspended for less than a month at a time when there was real disagreement as to whether McKinnon, who was then an Acting Manager, could remain part of the union. It also maintained that the work refusals, against Mr. McKinnon as an Acting Manager, were not unusual and alleged that they rose out of legitimate concerns.

Amongst other things, OPSEU agreed that it would not take any steps to terminate the complainant’s membership solely by reason of his status as an Acting Manager. OPSEU also committed to take all reasonable steps to ensure that no legal process is used by any OPSEU member or employee in the bargaining unit, either as a reprisal against the complainant for having exercised his rights under the Code or as a means of otherwise violating the Code. OPSEU also agreed that where it lacked the legal authority to terminate a process pursued by one of its members against the complainant, which constitutes a reprisal or a violation of the Code, it will not provide any support to the process and will take all reasonable steps to oppose the party with carriage of that process. OPSEU confirmed its intention to continue funding Mr. McKinnon’s representation with respect to his separate complaints against the Ministry of Correctional Services, which are currently before the Tribunal.

Jessica Reynolds v. Toronto Transit Commission (Tribunal Settlement)
Jessica Reynolds is person with a disability who uses a walker as a mobility aid. On March 5, 2005, she asked a TTC bus driver to lower a ramp that is used to assist people with mobility difficulties. The driver refused, stating, incorrectly, that TTC policy only allowed deployment of the ramp for people in wheelchairs and scooters.

Since the incident, the TTC cautioned their driver and reminded him of their policy that all operators should be proactive in deploying the lift or ramp to accommodate customers with any mobility issue. This driver was also sent for re-training. The TTC has also re-posted their policy at least twice to remind drivers of their obligations. A notice was also sent to all drivers in their paycheques.

The TTC agreed to provide some compensation to Ms. Reynolds. More importantly, it agreed that, before December 31, 2007, it will enact an advertising campaign, similar to other normal advertising campaigns, which will positively advertise its current policy on accessible transit (including that TTC drivers should be proactive in deploying the lift or ramp to accommodate customers, with any mobility issue, in accordance with the policy) and the availability of accessible lift/ramp-equipped and low-floor buses to patrons. This advertising campaign will consist of the placement of “car card” posters and “dangler” leaflets on randomly selected buses. The advertising campaign is scheduled to run for 4 to 6 weeks. The Commission will comment and provide feedback on the proposed campaign and it will also be posted on the TTC's Web site.

Adam Pukas v. Halton District School Board (Tribunal Settlement)
The complainant, Adam Pukas, is a student who sought accommodation from the Halton District School Board. Among other things, he wished to be in a regular classroom with supports from an educational assistant (an "EA").

The allegation was that the Board rejected the requests by saying that EAs could only be assigned to students with physical, as opposed to developmental or behavioural, disabilities. The Board did issue a memorandum in 2003 stating that priority for EAs "must be given to students requiring support to meet significant health and safety needs", and that students with behavioural issues will only be considered for support with special consultation, "and where the safety of the individual or others is at risk".

The Board provided general compensation. With respect to the public interest, the Board agreed to provide copies of the Commission's Guidelines on Accessible Education to its Trustees. Importantly, it agreed to issue memoranda to its principals and vice-principals saying that:

• it does not have a policy of restricting the allocation of EAs solely to physically-disabled students who have significant health, safety or personal care needs;
• it will assign EA support to students, whether in self-contained classes or otherwise, where doing so is appropriate to meet disability-related needs, and will not cause undue hardship within the meaning of the Code; and
• before disciplining students with disabilities, it will assess whether the behaviour in question was a manifestation of the student's disability, for example by considering whether the student is receiving appropriate accommodation.

Jeffrey Van Gorp v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of Transportation (Tribunal Settlement)
Jeffrey Van Gorp used to have a driver’s licence. In 1997, he was diagnosed with bitemporal hemianopia, which affects his peripheral vision. The Ministry suspended his licence. Under the old regulations, to get a “G” licence, a person needed to have a horizontal field of vision of at least 120 degrees as measured by confrontation tests. Van Gorp’s peripheral vision was less than the required minimum. Under the old regulatory scheme, the Ministry could not waive the requirements.

As of May 29, 2005, the regulations were amended, to provide as follows:

18 (2) An applicant for or a holder of a Class G, G1 or G2 driver’s licence must have,

• (a) a visual acuity as measured by Snellen Rating that is not poorer than 20/50 with both eyes open and examined together with or without the aid of corrective lenses; and
• (b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eyes open and examined together,

21.2 (1) The Minister may waive the qualification set out in clause 18 (2) (b) for an applicant for or a holder of a Class G, G1 or G2 driver’s licence if,

• (a) the applicant or holder provides evidence that he or she has successfully completed the tests, procedures and examinations that the Minister may require

As a result of the change to the regulations, a person with less than 120 degrees of peripheral vision can obtain a licence if the person is tested, and found able to drive safely.

Van Gorp went through the testing procedure (which took some time, as the Ministry had to set up testing procedures and had a number of applicants), and he has obtained his licence again. The change in the regulations is a systemic remedy obtained in the public interest.

Cases in higher court

Gary Malkowski v. Ontario Human Rights Commission and Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing (Divisional Court)
The Commission dismissed Gary Malkowski’s human rights complaint against the provincial government and the Ministry of Municipal Affairs and Housing. In his complaint he alleged that the failure by these respondents to include a requirement in the Ontario Building Code that theatres in the province be equipped with Rear Window Captioning (a device that provides captioning to hearing impaired patrons) amounts to discrimination in the provision of a service on the ground of disability. He sought judicial review of the Commission’s decision.

The Divisional Court dismissed the application. It held that the Human Rights Code could not be used to “read in” or add words to legislation that were not put there by the legislature. A Human Rights Tribunal could direct that a government body ignore text in a statute that is contrary to the Code. This is due to the primacy of the Code over other legislation. However, the Tribunal cannot itself add words to a statute that are not already there. The Tribunal concluded: “The Legislature is sovereign and it would take clear language to establish any tribunal with authority to add language to what the Legislature has done. The Charter is such a document, but the Code is not. To read the Code as the applicant asks is to grant to the Tribunal the power to amend legislation to bring it into conformity with the Code. I cannot find that power in this language.”

Hamilton Street Railway Company, London Transit Commission, Toronto Transit Commission, and Transit Windsor v. Ontario Human Rights Commission (Divisional Court, Single Judge)
A “special program” under section 14 of the Code is immunized from a claim of discrimination. The Ontario Human Rights Commission exercised its power under section 14 of the Code and declared that the specialized paratransit services operated by the London Transit Commission, the Hamilton Street Railway, the Toronto Transit Commission and Transit Windsor, are not “special programs”. These transit service providers asked the Court to strike down these declarations and to prohibit the Commission from reconsidering these decisions on the ground that it was biased. The Court dismissed the application. It first held that the application was premature and that the Commission’s reconsideration decision should be decided, first. In addition, it held that the public comments of one member of the Commission, even if it can be said that they demonstrated some bias, could not be said to taint the other members.

Weyerhaeuser Company Limited, carrying on business as Trus Joist v. Ontario Human Rights Commission et al. (Divisional Court)
The Commission had referred a case involving pre-employment drug testing to the Tribunal. Weyerhaeuser brought a motion to dismiss at the Tribunal arguing that the complainant was not dismissed because of a failed drug test, but because he had allegedly lied when asked whether or not he smoked marijuana. The Tribunal dismissed the motion on the basis that these were factual issues that required evidence to be called and could not be decided based on mere written submissions. The Divisional Court overturned the Tribunal’s decision. It held that the complainant was not dismissed because he was perceived to have a disability. Rather, it was because he had lied when asked whether he smoked marijuana. This factual conclusion was based on the Court’s interpretation of the complainant’s description of the question asked of him, and his answer, as set out on the complaint form that he filed with the Commission.

The Court also decided that pre-employment drug testing in Ontario was permissible where the consequence of a failed test was not automatic dismissal. Weyerhaeuser’s policy required a person that failed its initial test to report to a substance abuse professional, to subsequently provide a negative drug re-test and to sign a Commencement of Duty Agreement, which states that the person “may” be terminated if he or she engages in “Prohibited Conduct” within the next five years. “Prohibited Conduct” includes being at work with a blood alcohol concentration of 0.001, using alcohol within 8 hours of performing a safety sensitive task, using alcohol within 8 hours of an accident, possessing and consuming alcohol while on duty, using or possessing controlled substances (including marijuana) at any time, and refusing to submit to an alcohol or drug test. The Court concluded that, as these sanctions were not as severe as dismissal, it could not be said that Weyerhaeuser perceived of persons that had failed an initial drug test as having a disability.

The Commission, and the Tribunal, have sought leave to appeal from this decision to the Ontario Court of Appeal.

Kevin Keays v. Honda Canada Inc. operating as Honda of Canada Mfg. (Court of Appeal, leave to appeal to the Supreme Court of Canada, granted)
The Commission intervened in this case in the Court of Appeal, and will be seeking leave to intervene when the case is argued in the Supreme Court of Canada. Keays was absent from work due to a disability, chronic fatigue syndrome. Honda had a requirement that Keays had to get a doctor’s note validating each absence before he could return to work. This requirement was not imposed on workers with “mainstream illnesses”. Having to go to the trouble of obtaining these notes had the effect of lengthening each of Keay’s absences and worsening his condition. The company doctor also doubted the nature and extent of his disability. He was eventually terminated. Keays sued for wrongful dismissal.

At trial, the judge found in Keays favour. At issue was whether Keays could also receive punitive damages. At common law, such damages are available where the employer has also committed an “independent actionable wrong”. The trial judge held that Honda had failed in it duty to accommodate Keays, contrary to the Human Rights Code, and that this met that test. On appeal, Honda argued that as there is no tort of discrimination known to law and that the Human Rights Code cannot be considered “actionable”, as that term is reserved for civil actions. The Court of Appeal disagreed holding that a broad view of what is “actionable” should be adopted. The punitive damages are appropriate because of the high handed and discriminatory manner in which Keays was terminated. Discriminatory conduct, the Court held, can support an independent action for wrongful dismissal, even though that same conduct might also happen to be a breach of the Code.

Council of Canadians with Disabilities v. Via Rail Canada Inc.,Canadian Transportation Agency, Canadian Human Rights Commission, Ontario Human Rights Commission, Commission des droits de la personne et des droits de la jeunesse, Manitoba Human Rights Commission, Saskatchewan Human Rights Commission, Transportation Action Now, Alliance for Equality of Blind Canadians, Canadian Association for Community Living, Canadian Hard of Hearing Association, Canadian Association of Independent Living Centres and Disabled Women’s Network Canada (Supreme Court of Canada)
The Commission intervened in this appeal and was permitted by the Court to make written submissions. The position adopted by the majority of the Court reflects the Commission’s policies on the duty to accommodate persons with disabilities. VIA rail had purchased railway cars from Britain that were not wheelchair accessible. VIA engaged in a multi-million dollar retrofit of the cars, but still did not address all of the inherent barriers to access in their design.

The majority of the Court rejected the "network analysis" adopted by Federal Court of Appeal. The Federal Court looked at the fact that some trains on some routes were accessible. The Supreme Court held that the mere fact that there are accessible trains travelling along only some routes does not justify inaccessible trains on others. “It is the global network of rail services that should be accessible. The ad hoc provision of services does not satisfy Parliament’s continuing goal of ensuring accessible rail services”. In addition, the Commission (and others) argued, and the Court accepted, that there was a higher obligation on service providers to not create new barriers when initiating a new structure or service. It held that “human rights law includes an acknowledgment that not every barrier can be eliminated, it also includes a duty to prevent new ones, or at least not knowingly to perpetuate old ones where preventable”. The Court found that VIA did not seriously investigate the possibility of reasonably accommodating the use of personal wheelchairs or to provide access for persons with disabilities. The Court upheld that original decision of the National Transportation Agency ordering VIA to properly retrofit the railway cars.

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^[1] Because complaints can involve multiple grounds, the sum by grounds exceeds the total for all complaints filed, and the corresponding percentages of total complaints exceed 100%.
^[2] “Sex” includes pregnancy, breastfeeding, and gender identity.
^[3] “Sex” includes pregnancy, breastfeeding, and gender identity.
^[4] Because complaints can involve multiple grounds, the sum by grounds exceeds the total for all complaints filed, and the corresponding percentages of total complaints exceed 100%.
^[5] Complaints dismissed under section 36 of the Code include cases where the evidence did not warrant a hearing, or the procedure was not appropriate. This includes 6 cases (less than 0.5%) that were closed by the Commission that were dismissed because the complainant did not participate in the Commission’s investigation or the Commission was unable to contact the complainant.
^[6] 140 complaints were referred to the Human Rights Tribunal of Ontario under section 36 of the Code. A further 3 complaints, which had previously been closed by the Commission, were referred to the HRTO after reconsideration under section 37 of the Code.
^[7]Because complaints can involve multiple grounds, the sum by grounds exceeds the total for all complaints filed.
^[8] “Sex” includes pregnancy, breastfeeding, and gender identity.
^[9] Some as a result of a term of settlement.
^[10] These cases were dismissed after a Commission decision based on written submissions.
^[11] 140 complaints were referred to the Human Rights Tribunal of Ontario under section 36 of the Code. A further 3 complaints, which had previously been closed by the Commission, were referred to the HRTO after reconsideration under section 37 of the Code.
^[12] Includes cases where the evidence did not warrant a hearing, the procedure was not appropriate, or, in 6 cases (less than 0.5%), those where the complainant did not participate in the Commission’s investigation or the Commission was unable to contact the complainant.