Legal services branch

During the 2002-2003 fiscal year, the Legal Services Branch was involved in the following resolutions: 13 Human Rights Tribunal of Ontario decisions, 37 settlements, 5 judicial review decisions, 4 appeal decisions, and one Supreme Court of Canada decision.

At the end of the fiscal year, the ongoing litigation in the Legal Services Branch comprised: 80 Human Rights Tribunal of Ontario files, 14 judicial reviews, 5 appeals, and one case at the Supreme Court of Canada. 

The following are highlights of some of the significant decisions, settlements, and cases over the past year.

Supreme Court of Canada

B, C, and D v. A and OHRC, Supreme Court of Canada: October 31, 2002.

Mr. A filed a complaint, following the termination of his employment with D Ltd., alleging that he had been discriminated against on the basis of family and marital status. Mr. A’s termination followed a confrontation between Mr. B (Mr. A’s boss) and Mr. A’s wife and daughter over allegations that Mr. B had sexually abused Mr. A’s daughter.

Result at the Human Rights Tribunal of Ontario (then the Board of Inquiry): The Tribunal concluded that Mr. A’s employment was terminated solely because he was the father of the person alleging the abuse and the husband of the person confronting Mr. B about the alleged abuse, and that the facts amounted to discrimination based on marital and family status. 

Result at the Divisional Court: The Divisional Court upheld these factual findings but said that, though the parties were related through marriage, this case does not amount to discrimination on the basis of family or marital status.

Result at the Court of Appeal: The Court of Appeal allowed the Commission’s appeal, agreeing that the grounds “family status” and “marital status” must include the particular identity of one’s parent, child or spouse.

Result at the Supreme Court of Canada: The Supreme Court of Canada endorsed the Court of Appeal’s approach, finding that adverse treatment based on the identity of one’s spouse, child or parent is prohibited under the Code. The Supreme Court of Canada also reinforced previous case law that confirmed that courts and tribunals should adopt a broad, remedial and purposive approach to interpreting the provisions of human rights legislation.

Appeals

Pritchard v. OHRC and Sears Canada, Court of Appeal: January 29, 2003.

Ms. Pritchard filed a human rights complaint in January 1997 against Sears Canada Inc. and certain supervisory personnel alleging discrimination, harassment and reprisal. The alleged reprisal was the termination of Ms. Pritchard’s employment and a subsequent failure to re-hire her due to earlier complaints she had made to the Commission in 1994 for sexual harassment and sex discrimination.

The Commission exercised its discretion under section 34(1)(b) of the Code to not deal with the part of her complaint that addressed her termination. The reprisal allegations addressing the subsequent failure to rehire were to be referred to investigation and mediation under the normal course. Ms. Pritchard requested a reconsideration of this decision under section 37. The Commission upheld its original decision.

Ms. Pritchard sought an order that she be provided with all information, both oral and written, that was placed before the Commission when it made its decision under section 34(1)(b). 

Result at the Divisional Court: The Commission was ordered to disclose all information placed before the Commissioners when they made their section 34 decision including a legal opinion prepared by counsel. The Court held that fairness dictates that Ms. Pritchard was entitled to all the information placed before the Commissioners who made the decision to not deal with a part of her complaint.

Result at the Court of Appeal: The Commission appealed, arguing that the legal opinion prepared by its in-house counsel was protected by solicitor-client privilege. The Court of Appeal reversed the Divisional Court’s decision finding that the legal opinion was indeed privileged information. The Court further held that on a judicial review, the legal opinion was irrelevant since the question to be answered would be whether the decision of the Commission could be upheld, not whether the legal opinion it received was correct.

Current Status: Ms. Pritchard is seeking leave to appeal to the Supreme Court of Canada.  

Superior Court of Justice

Oren Nimelman By Next Friend Cheryl Katz, Noah Nimelman By Next Friend Cheryl Katz and Cheryl Katz v. OHRC, Nancy Pocock, Christopher McKinnon and Keith Norton, Superior Court of Justice: February 5, 2002.

Cheryl Katz brought an action against the Commission for breach of rights under the Charter of Rights and Freedoms, breach of statutory duty, abuse of public office and malicious conduct.

Result at the Superior Court of Justice: The Court dismissed the claim, finding that there was no reasonable cause of action. The Court confirmed an earlier Court of Appeal decision that held that the Commission is not an entity that can be sued for damages. This also excludes the Commission from an action of vicarious liability for the actions of its employees.

Divisional Court

Gismondi v. OHRC and City of Toronto, Divisional Court: February 14, 2003.

This was an application for judicial review of two decisions of the Commission to not deal with the complainant's age-based discrimination complaint in relation to the termination of his employment. The Commission concluded that the complaint was untimely because the events giving rise to it occurred more than six months before the complaint was filed, and was not satisfied that the delay was incurred in good faith. The Commission therefore decided not to deal with the complaint under section 34(1)(d), and upheld its decision under section 37.

Result at the Divisional Court: The Court found that the standard of review to be applied on judicial review of the Commission’s decisions under sections 34, 36, and 37 of the Code is that of “patent unreasonableness”. In coming to this conclusion, it noted the finality of decisions under section 37, the lack of an appeal route from the Commission’s decisions, the Commission’s investigative and screening (as opposed to quasi-judicial) role under sections 34, 36, and 37, and the well-recognized expertise of the Commission in fact-finding and processing complaints in the human rights context.

The Court also found that the Commission’s decisions were not patently unreasonable, and that the Commission had met the requirements of procedural fairness in making its decisions. The complainant was given a full opportunity to make submissions and respond to the Commission’s section 34 analysis and reconsideration report, and all of the arguments upon which he relied appeared to have been before the Commission at the time the decisions were made. The complainant had knowledge of the matters the Commission was considering and upon which its decisions would be based. The Commission’s reasons were adequate and sufficient. Further, the Court indicated that the reasons for the Commission’s decisions could be ascertained by reference to both the case analyses provided to the parties before the decision, and the written reasons provided after the decisions.

OHRC and Ray Brillinger and the Canadian Lesbian and Gay Archives v. Imaging Excellence Inc. and Scott Brockie, Divisional Court: December 11, 2002.

Ray Brillinger sought printing services from Imaging Excellence Inc. on behalf of the Canadian Lesbian and Gay Archives (the “Archives”). The president of Imaging Excellence, Scott Brockie, denied the service on the basis of his religious beliefs that homosexuality is contrary to the teachings of the Christian Bible. Mr. Brockie argued that his right to freedom of religion under section 2(a) of the Charter of Rights and Freedoms (the “Charter”) acts as a defence for the denial of services.

The decisions of the Tribunal (then the Board of Inquiry) are outlined in last year’s annual report. The respondents appealed to the Divisional Court.

Result at the Divisional Court: The Divisional Court held that the Tribunal erred when it purported to add the Archives as a party complainant, as the Tribunal lacked the jurisdiction to add a complainant to a case that had been referred to it by the Commission. Accordingly, the Court dismissed the Archives' complaint.

The Court upheld Mr. Brillinger's complaint. It held that Mr. Brockie and Imaging Excellence had discriminated against Mr. Brillinger directly on the basis of sexual orientation, as well as on the basis of his association with the Archives, contrary to section 12 of the Code.

The Court rejected Mr. Brockie's proposed distinction between "sexual orientation" and the political act of promoting the causes of lesbians and gay men as specious and defying rational justification. The Court held that promoting an understanding and respect for lesbians and gay men should not be regarded as separate from the characteristic of sexual orientation.

The Court rejected the argument that the Charter could be used in this case to "read into" the Code a defence for discrimination based on one's religious beliefs.

The Court held that the Tribunal's order to provide printing services went further than was necessary in this case, and could require Mr. Brockie to provide services which could strike at the core elements of his religious belief and conscience. The Court therefore amended the order to not require Mr. Brockie or Imaging Excellence to print material of a nature that could reasonably be considered to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs.

OHRC and Roosma and Weller v. Ford Motor Company of Canada Limited and CAW Local 707, Divisional Court: September 19, 2002.

The complainants worked on the assembly line at Ford’s Oakville Plant. They later became members of the Worldwide Church of God, which requires its members to refrain from work from sunset Friday to sunset Saturday. According to the collective agreement between CAW and Ford, the complainants were required to work two Friday night shifts every four weeks. The complainants discussed the situation with CAW but the issue was not resolved. In August and September 1985, the complainants filed complaints of discrimination on the basis of creed against Ford and CAW.

Result at the Human Rights Tribunal of Ontario (then the Board of Inquiry): The Tribunal found that while there was a prima facie case of discrimination, Ford and CAW had made out a defence of undue hardship. The Commission appealed this decision.

Result at the Divisional Court: The majority of the Court dismissed the Commission’s appeal. The majority found that the Tribunal’s decision with regard to both the employer’s liability and the union’s liability was reasonable.

With regard to the employer’s liability, the Tribunal had determined that the general purpose of the work schedule was aimed at a rational and legitimate business objective. In determining that accommodation would result in undue hardship, the majority held that the Tribunal was reasonable in taking into account financial cost, the interchangeability of the operation, the importance of having the regular operator on each job, the impact of the collective agreement, safety considerations, and the effect of accommodation on the morale of other workers.

With regard to the union’s liability, while the majority affirmed the application of the duty to accommodate to unions, it found that the union’s unwillingness to advocate for accommodations was not unreasonable in this case, given the importance of seniority in this plant and the impact accommodation would have had on seniority.

There was a strong dissent at the Divisional Court. Lax J. found that the Tribunal’s decision was unreasonable in a number of respects, and in some respects patently so. Lax J. found that the right to be accommodated is a core element of the equality guarantee and is informed by two principles:

1. broad and generous interpretation of prohibitions of discrimination, and
2. narrow construction of exceptions or defences.

According to Lax J., the Tribunal reversed these principles. She found that accommodating two incremental absences for twenty nights a year on a labour shift of approximately 1250 workers within a labour force of thousands would not impose any of the forms of undue hardship, namely impossibility, serious risk, or excessive cost. Lax J. also found that the Tribunal erred in rejecting, without sufficient examination, a number of options open to the employer and union to accommodate the complainants.

Lax J. found that the absence of a finding that any step was taken to accommodate the complainants alone was fatal to the Tribunal’s decision, as it is rarely acceptable for an employer to do nothing. With regard to the union’s liability, Lax J. found that although worker morale can be considered, in this situation worker morale would have been affected principally because Weller and Roosma would be treated differently. As this sentiment is contrary to the Code, Lax J. concluded that the Tribunal’s consideration of worker morale was unreasonable in this case.

All three judges rejected the union’s argument that it was not prima facie liable, noting that in agreeing to the work schedule (which clearly had an adverse impact on those whose creed prevented them from working Friday night), both Ford and the union had a duty to accommodate.

Current Status: The Commission’s motion for leave to appeal the Divisional Court’s decision to the Court of Appeal was dismissed on January 15, 2003.

Canada Mortgage and Housing Corporation v. Iness, Caroline Co-operative Homes Inc. and OHRC, Divisional Court: July 8, 2002.

Ms. Iness alleged that she was discriminated against by the terms of the agreement between Caroline Co-operative Housing Inc. and Canada Mortgage and Housing Corporation (CMHC), a federal Crown corporation, because she is a recipient of social assistance. Prior to 1995, Ms. Iness paid 25 percent of her income as rent, as did all other residents of the co-operative whose housing charge was subsidized. Following an audit in 1994, CMHC directed the co-operative to set a resident’s housing charge as the full amount of the "shelter allowance" portion of social assistance benefits. The change, as implemented by the co-operative, meant that Ms. Iness was no longer able to pay all of her insurance and hydro costs out of the shelter portion of her benefit, but instead had to pay part of these out of her "basic needs" allowance.

Since the change to Ms. Iness' payment was made apparently to comply with CMHC requirements, the Tribunal (then the Board of Inquiry) added CMHC as a party to the complaint. CMHC sought judicial review of the Tribunal’s decision adding it as a party.

Result at the Divisional Court: The Divisional Court set aside the Tribunal’s decision. The Court found that the exercise of CMHC's authority to advance funds to the co-operative is not an invasion of provincial powers regarding housing or human rights. CMHC can advance funds and impose conditions on how those funds are used. Provincial legislation cannot limit the authority given to CMHC, if it affects a vital part of the operation of the federal undertaking. Federal legislation completely governs the spending of federal funds by CMHC in its core endeavour. There is no room for a provincial law to regulate the terms upon which CMHC advances federal funds.

Current Status: This decision is under appeal to the Court of Appeal for Ontario.

Jones and OHRC v. Amway of Canada, Ltd. and Art Knott, Divisional Court: April 19, 2002.

Ms. Jones made an internal complaint of sexual harassment to her employer, the respondent Amway, on March 25, 1996. She complained that another employee had sexually harassed her. Amway investigated the complaint and found it to be without merit. Ms. Jones agreed to go back to work on March 29, 1996. On April 17, 1996, Ms. Jones presented Amway with her “position” on the harassment by way of a memo written on the advice of her lawyer. On April 26, 1996, Amway fired Ms. Jones, stating that the employment relationship had been destroyed by her allegations. The Commission referred Ms. Jones’ complaint regarding reprisal to the Tribunal (then the Board of Inquiry).

Result at the Human Rights Tribunal of Ontario: The Tribunal made the following findings:

1. Amway had not intended to reprise against Ms. Jones for the sexual harassment complaint.
2. There was no connection between the complaint of sexual harassment and the dismissal. Rather, the dismissal was due to the breakdown in the employment relationship caused by Ms. Jones continuing to press the issue after it had been dealt with internally.
3. Ms. Jones reneged on her agreement to return to work.

The Tribunal therefore dismissed the complaint.

Result at the Divisional Court: The Court dismissed the appeal noting it would not interfere with the Tribunal’s decisions in this case as they were based on credibility and fact-finding.

The Court articulated some important principles regarding reprisal. It found that a complainant is entitled to protection under section 8 of the Code when she files an internal human rights complaint with her company. It is not necessary to file a formal complaint with the Commission in connection with the alleged harassment/discrimination. Protection under section 8 flows from the exercise of rights available under either the statute or the employer’s human rights policy.

Moreover, a complainant’s right to the protection of section 8 is not affected because her complaint was rejected by her employer. Finally, the Court found that while it is generally not necessary to prove intent in the human rights context, a breach of section 8 does require an intent to perpetrate the prohibited conduct. The onus is on the Commission and the complainant to prove an intent on the part of the respondents in cases involving reprisal under section 8 of the Code.

Human Rights Tribunal of Ontario

OHRC and Antony Kearsley v. City of St. Catharines, Human Rights Tribunal of Ontario (then the Board of Inquiry): April 2, 2002.

Mr. Kearsley applied for a position as a firefighter with the City of St. Catharines. He was accepted, conditional upon passing a medical examination. During this medical examination, it was discovered that he had atrial fibrillation. The medical examiner, a general practitioner, refused to approve Mr. Kearsley for work as a firefighter, despite the fact that the experts with whom the complainant had consulted advised him that it was a benign condition that would not impair his ability to do the job.

The medical examiner testified at the hearing that atrial fibrillation was not a benign condition, as it led to an increased risk of stroke of 1% - 5% per year. In response, the Commission called a medical expert in the area of atrial fibrillation, who testified the increased risk of stroke for someone of Mr. Kearsley’s age was inconsequential – possibly 0.2% per year. This expert testified that there was no increased risk of heart failure in someone like Mr. Kearsley, who was otherwise in good general health. Subsequent to being turned down by the City of St. Catharines, Mr. Kearsley became a firefighter with the City of Hamilton, achieving the rank of first class firefighter in October 2001.

Result at the Human Rights Tribunal of Ontario: The Tribunal held that the evidence of the medical expert was to be preferred over that of the medical examiner, who had no particular expertise in this area. The Tribunal noted that it would have been appropriate for the City of St. Catharines to seek out and rely on expert advice when confronted with a medical condition such as this. This protocol was followed in other municipalities.

The Tribunal ordered the City to: hire Mr. Kearsley as a first class firefighter, with his work to commence within 75 days of the decision; pay Mr. Kearsley for monetary losses for the failure to hire him on June 8, 1998, including losses from lower wages, overtime and pension losses, and mileage losses for travel to his job in Hamilton; give Mr. Kearsley seniority ahead of those hired on June 8, 1998; and pay general damages of $4,000.

OHRC and Bubb-Clarke v. Toronto Transit Commission and ATU Local 113,

Human Rights Tribunal of Ontario (then the Board of Inquiry): April 4, 2002.

Mr. Bubb-Clarke was a bus driver with the TTC. He was diagnosed as having narcolepsy, and could no longer drive a bus. Mr. Bubb-Clarke’s narcolepsy also made the job of collector unsuitable for him. However, pursuant to the collective agreement, the ten years of seniority he had gained as a driver could only be used in the group he worked in (transportation) or the collectors’ group. From 1991 to 1996, the TTC accommodated Mr. Bubb-Clarke's needs by having him perform various jobs in the maintenance group.

Mr. Bubb-Clarke asked the TTC and the union to permit him to use his system-wide seniority in order to bid on jobs in the maintenance group. The TTC agreed to his request. The union, citing the collective agreement, would not permit Mr. Bubb-Clarke's seniority from the transportation group to be used in the maintenance group.

Mr. Bubb-Clarke filed a complaint regarding the refusal to allow him to use his system-wide seniority in the maintenance group.

During the hearing, the TTC did not oppose the remedy requested. The proceeding continued against the union.

Result at the Human Rights Tribunal of Ontario: The Tribunal found that the provisions of the collective agreement preventing the transfer of seniority when an employee moved from one group to another because of disability were discriminatory. Further, employees such as Mr. Bubb-Clarke should not be subject to the union’s vote to free them from the discriminatory effects of the collective agreement.

Having found that the terms of the collective agreement were discriminatory, the Tribunal ordered the following:

1. ATU to pay Mr. Bubb-Clarke general damages and damages for mental anguish at the rate of $4,000 per year, for a total of $22,000
2. Mr. Bubb-Clarke to be granted full seniority for all the time he has been employed by the TTC, transferable to his present position or any other position he may occupy as a result of his disability
3. TTC and ATU to grant to any employee who has a disability and who transfers to another position because of disability full seniority for all the time employed by the TTC
4. A declaration that a restriction on the transferability of seniority, where the transfer is because of disability, discriminates against the employee with a disability

OHRC, Commanda, Goulais, Commanda, Commanda, Chevrier, and Anishnabie v. Rainbow Concrete Industries Limited, Settlement: April 16, 2002.

The six complainants in this case were aboriginal men who worked for Rainbow Concrete Industries at its plant on leased land on the Nipissing First Nation reserve. The Band sought to renegotiate the lease and increase the royalties with Rainbow. Negotiations reached an impasse, and the Band Council decided to blockade the road to the quarry. Subsequently, Rainbow shut down the operation and laid off all workers. Rainbow then moved its operations to a site in North Bay. It was alleged in the complaint that all of the non-aboriginal workers and two aboriginal workers were recalled. The complainants were not recalled, and were allegedly informed that one of the reasons was that they had either participated in the blockade or had prior knowledge of it and did not inform the company.

The complainants alleged discrimination based on race, colour and ancestry. It was further alleged that the company later took the position that three complainants were not recalled because of their relationship to a member of the Band Council. Accordingly, the grounds of marital status and family status were added to those complaints.

Outcome of Settlement: In addition to paying general damages to the complainants, Rainbow agreed to several public interest remedies. It agreed to properly consider members of the Nipissing First Nation Band for open positions, and where such members are the most qualified applicants for open positions, to hire those persons.

Rainbow also agreed: to submit its human rights policies and complaint procedures to the Commission for review and commentary, and to provide copies of the policies and procedures to all employees; to provide human rights educational and sensitivity training to management and supervisors; to provide, upon request, an annual educational seminar open to all employees regarding the provisions and principles of its human rights policies and complaint procedures, and the rights of employees under the Code; and to post notices prominently in all of its places of business in Ontario indicating that it observes and upholds the Code. Further, Rainbow has provided a letter assuring the Commission that it will comply with its recognized obligations under the Code. 

OHRC, Brampton Children’s Residential Services Ltd., David MacDonald, and Brenda Mason v. Sandringham Place Inc., Golden Maple Homes Inc., Gilbert Duchamp, and André Duchamp, Settlement: October 10, 2002.

The corporate complainant, Brampton Children’s Residential Services (BCRS), was established to provide a group home for adolescent youths with psychological disorders in the Brampton area. The personal complainants, directors of BCRS, sought leased accommodation for the group home in a residential neighbourhood in Brampton. They signed a lease agreement with the personal respondents for a home in a subdivision being developed by Sandringham Place Inc.

The personal respondents had not taken possession of the home, which was still under construction. It was alleged in the complaint that when the residents of the subdivision discovered that a group home was going to open in their neighbourhood, they objected. It was further alleged that Sandringham Place reacted to the protests by putting pressure on the personal respondents to not proceed with the lease. It was also alleged that the builder, Golden Maple Homes Inc., advised the personal respondents shortly before the closing that it would not proceed with the closing if the personal respondents insisted on proceeding with the lease. Golden Maple Homes, it was alleged, insisted that the Transfer of Deed of Land for the property contain a restrictive covenant prohibiting the use of the property for a group home.

The complainants alleged they were notified by the personal respondents that they would not enter the lease only days before they were to occupy the property. They claimed that they were never able to secure alternate housing and were therefore unable to establish a group home.

Outcome of Settlement: In addition to all of the respondents paying consequential damages and returning the complainants’ deposit, the personal respondents and Golden Maple Homes agreed to the removal of the restrictive covenant.

OHRC and Ligia Arias v. Sanjay Desai and 1329732 Ontario Ltd. o/a Comfort Suites Hotel, Human Rights Tribunal of Ontario: February 7, 2003.

The complainant, Ligia Arias, was employed at the Comfort Suites Hotel for two and a half months. During this time she experienced sexual harassment from one of the owners of the hotel, the personal respondent Sanjay Desai.

Ms. Arias’ testimony was supported by a co-worker, who testified that she was also the subject of sexual harassment herself, and the General Manager, who testified that she was asked by Mr. Desai to find a reason to fire Ms. Arias. Ms. Arias was eventually terminated by Mr. Desai.

Result at the Human Rights Tribunal of Ontario: The Tribunal held that the Mr. Desai infringed Ms. Arias’ right to equal treatment with respect to employment without discrimination based on sex. In addition, Ms. Arias’ right to be free from sexual solicitation from a person in a position to confer, grant or deny a benefit or advancement had been infringed. The Tribunal also found that the workplace was poisoned by the sexual solicitation and sexual harassment of the staff by Mr. Desai.

The Tribunal found that Mr. Desai attempted to commit an act of reprisal when he asked his General Manager to create a pretext to fire Ms. Arias. The respondents committed an act of reprisal when they fired Ms. Arias for advising her supervisor of the sexual harassment and rejecting Mr. Desai’s sexual advances.

The Tribunal ordered the respondents to pay Ms. Arias $25,000 as compensation for the humiliation and loss of dignity resulting from the infringement of her rights and $5,000 as compensation for her mental anguish. In addition, the Tribunal ordered the respondents to implement a comprehensive workplace anti-harassment and anti-discrimination policy and required all management employees and owners to take an educational program on anti-discrimination and sexual harassment principles.

Current Status: The decision of the Tribunal was not appealed.

OHRC, Odell, Sarlina, Condie, Cluskey, Lang and Shell v. Toronto Transit Commission, Settlement: September 6, 2002.

The six complainants in this case were users of Wheel-Trans, and required the use of a wheelchair for mobility. In 1996, the TTC implemented new eligibility criteria for Wheel-Trans service. All existing users of Wheel-Trans were required to re-register for the service under the new criteria by attending an in-person interview. Those persons determined eligible for Wheel-Trans were then to pay a $25.00 fee or lose the service. The $25.00 fee was not charged to users of the TTC’s conventional transit service. The complaints alleged that both the fee and the requirement of an in-person interview were discriminatory on the basis of disability.

Outcome of Settlement: The TTC agreed to cease charging the $25.00 fee to people who apply for and receive Wheel-Trans service. The TTC further agreed to refrain, in the future, from charging people who apply for and receive Wheel-Trans service any fee associated with eligibility determination for Wheel-Trans service. The TTC also provided to each complainant a letter expressing regret that they were required to attend an in-person interview in the re-registration process, when they had been long-time users of Wheel-Trans who rely upon wheelchairs for their mobility.

Alicia Payne and OHRC v. Otsuka Pharmaceutical Co. Ltd, Minoru Okada, Canadian Ophthamological Society, Intertask Group of Companies Inc. and Leeanne Akehurst, Human Rights Tribunal of Ontario (then the Board of Inquiry): October 15, 2002.

The complainant, Alicia Payne, received work through an employment agency, which was contracted to provide staffing requirements for the 27^th International Congress of Ophthalmologists. Minoru Okada of Otsuka Pharmaceutical Co. Ltd., a Japanese company, made a request to the conference organizers to find a receptionist for the company’s exhibit booth.

Ms. Payne was selected to fill this position. However, when she was introduced to Mr. Okada, Mr. Okada asked the employment agency for another person without acknowledging or speaking to Ms. Payne, who is Black. In rejecting her for the position, Mr. Okada stated the need for “maintaining high standards of the company” and commented, “what would the Japanese doctors think”.

Result at the Human Rights Tribunal of Ontario: The Tribunal held that all the respondents had violated Ms. Payne’s right to be free from discrimination with respect to race, colour, ancestry and ethnic origin. The Tribunal held that based on the findings of fact, a clear prima facie case had been made out that Mr. Okada and Otsuka denied Ms. Payne the job of booth receptionist because she is Black.

The Tribunal also found that there is a human rights duty not to condone or further a discriminatory act that has already occurred. The Tribunal found that all the respondents had a relationship with Ms. Payne that fell within the “employment web”, as she interacted with them for the sole purpose of finding employment.

In particular, the Tribunal held that the Ontario respondents (Canadian Ophthamological Society (COS), Intertask Group of Companies Inc. and Leeanne Akehurst) had a duty to Ms. Payne to, at minimum, investigate the matter promptly and take appropriate, reasonable action if they determined discrimination had occurred.

The Tribunal ordered Otsuka and Mr. Okada to pay $5,000 in general damages and $5,000 in damages for mental anguish. The COS, Intertask and Leeanne Akehurst were ordered to pay Ms. Payne $3,000 in general damages and $2,000 in damages for mental anguish. The Tribunal ordered the COS and Intertask to establish non-discrimination policies and procedures. Otsuka was also ordered to establish a non-discrimination policy, and procedures that they would follow in the event that allegations of discrimination arose when conducting business in Ontario. The Tribunal further ordered Mr. Okada and Otsuka, for a period of five years, to give the Commission and Ms. Payne one week’s written notice of the arrival of any of Otsuka representative in Ontario for the purposed of conducting business.

OHRC and McKinnon v. Ontario (Ministry of Correctional Services), Human Rights Tribunal of Ontario: November 29, 2002.

The complainant, a person of native Canadian ancestry, is a correctional officer with the Ministry of Correctional Services. In 1998, the Human Rights Tribunal of Ontario (then the Board of Inquiry) found that the complainant suffered discrimination and harassment because of race, ancestry, and ethnic origin and reprisal. The Tribunal ordered a number of systemic remedies, including removing the individual respondents, having the Tribunal’s order read on parade, attaching a copy of the order to pay slips and publishing it in the institutional newsletter, and establishing a human rights training program.

The Tribunal reconvened the hearing because of allegations regarding the persistence of a poisoned work environment, despite its previous orders. 

Result at the Human Rights Tribunal of Ontario: The Tribunal found that it could not reconsider the effectiveness of remedies previously ordered, and could not continue ordering new remedies until they were effective in preventing discrimination. However, it found that it could consider whether the Ministry carried out the Tribunal’s previous orders in good faith with a view to making them effective. If, through its own fault, the Ministry did not comply with the orders, the Tribunal would be able to revise its orders to appropriately address the reasons for the Ministry’s failure and thereby better assure the fulfillment of the purpose of its original orders and compliance with the Code. The Tribunal therefore held that it retained jurisdiction to resolve allegations of harmful non-compliance with its orders.

The Tribunal found that the Ministry failed to comply fully with its original orders and that, as a result, the atmosphere of the Toronto East Detention Centre remained racially poisoned.

With regard to its remedial jurisdiction, the Tribunal held that its authority under section 41(1)(a) applies anew. Section 41(1)(a) allows the Tribunal to direct a respondent to do anything that, in the Tribunal’s opinion, it ought to do to achieve compliance with the Code in respect of the complaint and future practices. The Tribunal held that it could order any remedies that it could have ordered following the original hearing, including Ministry-wide directives that were, in its opinion, necessary to achieve compliance with the Code in respect of the complaints and in respect of the Ministry’s future practices.

The Tribunal therefore ordered a range of systemic remedies, including: training for all managers, including senior management of the Ministry; revision of performance appraisal forms to include responsibility for compliance with the Tribunal’s decision for the Deputy Minister, Assistant Deputy Ministers, Regional Directors, Superintendents and Deputy Superintendents of the Ministry, as well as the Superintendent, Deputy Superintendents, and Managers of the Toronto East Detention Centre; external investigation and mediation of all Workplace Discrimination and Harassment Protection policy complaints; and appointment by the Ministry of a competent third party, nominated by the Commission, to develop and oversee the delivery of training programmes ordered.

Current Status: The Tribunal’s decision is currently under appeal.

Mark Smith and OHRC v. Mardana Ltd. (c.o.b. as Mr. Lube), Keelestaff Enterprises Inc. (c.o.b. as Mr. Lube), Iswood Holdings Ltd. (c.o.b. as Mr. Lube), Don Strynadka, and Rob Neal, Human Rights Tribunal of Ontario (then the Board of Inquiry): September 10, 2002.

Mr. Smith commenced part-time employment with the Brampton (Mardana Ltd.) location of Mr. Lube in September 1992. In August 1993, he became a supervisor. Mr. Smith was terminated on November 6, 1995. He alleged that he was subjected to name-calling and racial taunts in the workplace, beginning approximately two weeks after he commenced employment and continuing until he was dismissed. Mr. Smith also alleged that his race was a factor in the termination of his employment.

Result at the Human Rights Tribunal of Ontario: The Tribunal found that Mr. Smith had been subjected to a poisoned work environment and ordered the corporate respondent to pay him $8,000 for “general damages for the period in which he was subjected to a poisoned workplace”. The Tribunal did not find that the respondents acted “wilfully or recklessly” and therefore did not award Mr. Smith damages for his mental anguish. 

The Tribunal also ordered the corporate respondent to post notices which made it clear that “[r]acial harassment and/or name-calling are ‘against the Ontario Human Rights Code’ and will result in termination with cause”. Finally, the Tribunal ordered the corporate respondents to write a letter to each of their employees advising that the corporate respondents had been found guilty of racial discrimination and harassment under sections 5(1) and 5(2) of the Code.

On the issue of the termination of Mr. Smith’s employment, the Tribunal did not find Mr. Smith’s race to be a factor, asking in its decision, “why would the very people who hired him, who were impressed by him, who promoted him, and who accommodated his school schedule in terms of working hours, suddenly make a decision against him on his race?”

Current Status: The Tribunal’s decision is under appeal to the Divisional Court. The Commission is appealing the Tribunal’s findings with respect to the termination of Mr. Smith’s employment, and that the respondents did not act “wilfully and recklessly”. 

Omoruyi-Odin and OHRC v. Toronto District School Board, Human Rights Tribunal of Ontario, Interim Decision: November 26, 2002.

The complainant alleges that he has been denied promotional opportunities because of his race, colour, ancestry, and place of origin and that he was subject to reprisals as a consequence of initiating the complaint. He further alleges that the Scarborough Board systemically discriminated against African Canadians with respect to promotional opportunities and that African Canadians were under-represented in positions of responsibility at the School Board.

The Commission and the complainant proposed the qualification of two separate experts to provide opinion evidence. The complainant also brought a motion, supported by the Commission, seeking an order that the proceedings be transcribed by a court reporter at no cost to the complainant.  The grounds for the complainant’s motion included principles of natural justice based on the right to be heard and the right to appeal, and the requirement that the Tribunal exercise its discretion in a manner consistent with the Charter.

Result at the Human Rights Tribunal of Ontario: The Tribunal declined to qualify the complainant and the Commission’s experts because their proposed expertise was not relevant to the proceeding, and not necessary to assist the trier of fact.

The complainant’s motion to engage a court reporter for the remainder of the proceedings was also refused.  Since the complainant’s request was made at the half-way point in the proceeding, only the evidence of the Respondent’s witnesses would be recorded. The Tribunal found that it would not be fair to order the proceedings to be transcribed over the objection of the Respondents, when it was the Respondent’s witnesses whose evidence would be recorded. 

Current Status: This case is ongoing and is not expected to conclude until late 2003 or early 2004.