Respect for human rights, human dignity and equality is a core value in Canadian society, and a cornerstone of public policy. The courts recognize that human rights legislation has a unique importance, and is considered “quasi-constitutional.” Every Ontarian has an interest in creating a society where human rights are respected, and everyone has the opportunity to equally take part and contribute.
Most importantly, respect for human rights is the law. Under the Code, employers, unions, landlords and service providers must make sure that they provide inclusive and non-discriminatory environments. Harassment and discrimination are a violation of the law, and organizations that fail to take adequate steps to prevent and address harassment and discrimination may be held liable.
Preventing and addressing human rights violations also makes good sense. Housing providers, employers, unions and service providers benefit from creating and maintaining environments that are inclusive, diverse and free of discrimination.
Employers benefit when they can attract and retain the best employees, and maximize the potential and the performance of those employees. Discriminatory policies and programs may prevent employers from attracting, recruiting and promoting good employees, and can result in employee frustration, burnout and turnover. Workplace harassment creates conflict between employees, lowers productivity, and can result in the loss of valued workers. A workplace that respects human rights is likely one with fewer conflicts between employees, and higher levels of employee loyalty.[1]
Service providers benefit when they are better able to attract and serve a wide range of customers, and when they have the capacity to respond to diverse needs. For example, service providers with diverse a workforce may be able to reach out to a wider range of potential clients. Similarly, housing providers who respect human rights will benefit from the ability to attract and retain good tenants, and to prevent conflict between tenants.
When ignored or poorly handled, human rights issues can lead to human rights complaints, workers’ compensation claims, grievances under collective agreements, wrongful dismissal claims, prosecutions under the Occupational Health and Safety Act, or Director’s orders and administrative orders under the Accessibility for Ontarians with Disabilities Act. All organizations can benefit from avoiding the costs in time, money, reputation and morale associated with such claims. Human rights complaints can negatively affect an organization’s image and relationships with the community. A commitment to human rights and diversity can greatly enhance community relationships.
Under the Code, employers, service providers and housing providers have the ultimate responsibility for ensuring a healthy and inclusive environment, and for preventing and addressing discrimination and harassment. They must make sure their organizations are free from discriminatory or harassing behaviour.
An organization can be held responsible for discrimination even if it is done indirectly. For example, an employer that authorizes an employment agency to discriminate on its behalf can be found liable for discrimination.
Discrimination does not have to be intentional. For example, an organization may have a policy that appears to be neutral, but may be discriminatory because it has a negative impact on persons identified by a Code ground. An organization may also be found to have discriminated where its efforts to accommodate or afford equal treatment simply fall short of the mark, despite good intentions.
Organizations also violate the Code if they authorize, condone, adopt or ratify behaviour that is contrary to the Code. To condone or further discrimination that has already happened perpetuates the discriminatory action.
Organizations have an obligation to be aware of whether their policies, practices and programs are having an adverse impact or result in systemic discrimination based on a Code ground. Whether or not a formal complaint has been made, organizations must acknowledge and address potential human rights issues.
Organizations that do not take steps to prevent or address discrimination or harassment may face serious consequences. Human rights decisions are full of findings of liability and assessments of damages that are based on, or aggravated by, an organization’s failure to appropriately address discrimination and harassment.[3] An important factor in assessing liability or damages is the presence or absence of appropriate policies and procedures for preventing and responding to discrimination and harassment.[4]
An organization may respond to complaints about individual instances of discrimination or harassment, but it may still be found to have failed to respond appropriately if the underlying problem is not resolved.[5] There may be a poisoned environment, or an organizational culture that excludes or marginalizes people based on a Code ground. In these cases, the organization should take further steps to address the problem, such as training and education, or reviewing and removing barriers.
Unions, professional organizations and vocational associations are responsible for making sure they do not engage in harassing or discriminatory behaviour against their members or prospective members. They are also responsible for ensuring they are not causing or contributing to discrimination in the workplace. A union may be held jointly liable with an employer where it has contributed towards discriminatory workplace policies or actions – for example, by negotiating discriminatory terms in a collective agreement, or blocking an appropriate accommodation, or failing to take steps to address a harassing or poisoned workplace.
Under section 46.3(1) of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by officers, officials, employees or agents in the course of their employment. This is known as vicarious liability. Simply put, an organization is responsible for discrimination that occurs through the acts of its employees or agents, whether or not it had any knowledge of, participation in or control over these actions.
Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment.[6] However, since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, the concept of vicarious liability applies.
In these cases, the “organic theory of corporate liability” may apply. That is, an organization may be liable for acts of harassment carried out by its employees if it can be proven that management was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization.[7] In summary, the decisions, acts, or omissions of the employee will engage the liability of the organization in harassment cases where:
Generally speaking, managers and central decision-makers in an organization are part of the “directing mind.” Employees with only supervisory authority may also be part of the “directing mind” if they function, or are seen to function, as representatives of the organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for guiding employees.[8]For example, a member of the bargaining unit who is a lead hand may be considered to be part of an organization’s “directing mind.”
[1] For a review of some of the research on human rights and workplace productivity, see Bates, Michael and Este, Dr. David, Creating Workplace Environments that Reflect Human Rights Values, Cultural Diversity Institute, University of Calgary, May 2000; Gandz, Dr. Jeffrey, “A Business Case for Diversity,” available online at www.hrsdc.gc.ca; and Iacobucci, Edward M., “Antidiscrimination and Affirmative Action Policies: Economic Efficiency and the Constitution”, (1998) Osgoode Hall L.J. 293-337.
[2] There are other provincial laws related to human rights issues that affect the development of organizational policies and procedures. Organizations have distinct but related responsibilities under the Occupational Health and Safety Act (OHSA) and the Accessibility for Ontarians with Disabilities Act (AODA). These laws promote the values and objectives of the Code but do not limit or replace an organization’s obligations under the Code.
Under the OHSA, employers must develop workplace violence and workplace harassment policies, programs and procedures to investigate and respond to complaints. Requirements under this Act apply to all forms of workplace violence and harassment, not just those that are related to Code grounds. The policies and procedures developed to address workplace violence and harassment may be separate, part of or associated with an employer’s anti-discrimination policies and complaint resolution procedures. For more information on how requirements under the OHSA may affect your organization, see the Ministry of Labour website at www.labour.gov.on.ca/english/hs/pubs/wvps_toolbox/.
Depending on size and type, organizations also have specific responsibilities under the AODA to identify, remove and prevent barriers for people with disabilities. Depending on size and type, an organization may be required to take a number of actions under this legislation, including: developing accessibility policies and plans, incorporating accessibility criteria into procurement practices, and delivering training to staff about the requirements in the Integrated Accessibility Standards Regulation, as well as the Ontario Human Rights Code as it relates to people with disabilities. There are also specific requirements for organizations of different types and sizes in the areas of customer service, information and communication, employment and transportation. To learn more about the requirements in each of these areas and how they may affect your organization, see:
www.mcss.gov.on.ca/documents/en/mcss/accessibility/iasr_guidelines/complete_guidelines.pdf
[3] See, for example, Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 (No. 4) (Ont. Bd. Inq.) aff’d (1999), 34 C.H.R.R. D/405 (Ont. Ct. (Gen. Div.), Board of Inquiry’s order upheld except with respect to the issue of reinstatement (2001), 41. C.H.R.R. D/349 (Ont. C.A.), leave to appeal denied [2002] S.C.C.A. No. 69; Smith v. Mardana Ltd. (No. 2) (2005), CHRR Doc. 05-434 (Ont. Div. Ct.). rev’g in part (2002), 44 C.H.R.R. D/142 (Ont. Bd. Inq.); Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37 (CanLII)
Where there is liability under the Code for discrimination due to failure to comply with the procedural and substantive duties to accommodate, organizations may be ordered to develop a human rights policy and complaints procedure. See DiSalvo v. Halton Condominium Corporation No. 186, 2009 HRTO 2120 (CanLII). The lack of policies or procedures will factor into liability or damages, and so will the appropriateness of existing policies to gauge whether the respondent had an understanding of its obligations under the Code. See Puleio v. Moneris Solutions, 2011 HRTO 659 (CanLII). However, in some cases, an employer’s response to address discrimination may be held to be reasonable despite an absence of a human rights policy and training. See Caldeira v. 2068006 Ontario, 2010 HRTO 760 (CanLII). In addition, where liability is found, the HRTO will consider the size of the respondent in assessing which remedies should be ordered. A small employer with no human rights policy may not be ordered to develop and implement one. See Torrejon v. 1147335 Ontario, 2010 HRTO 1513 (CanLII)
[4] See Lavoie v. Calabogie Peaks, 2012 HRTO 1237 (CanLII). In this case, the criteria used to assess the employer’s response to address allegations of discrimination in the workplace included: Was there an awareness of issues of discrimination/harassment in the workplace at the time of the incident? Was there a suitable ant-discrimination/harassment policy? Was a proper complaint mechanism in place? Was adequate training given to management and employees? The application of these criteria was based on a standard of reasonableness.
[5] School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201, (CanLII). Leave to appeal to the Supreme Court of Canada refused: 2005 CanLII 39611 (SCC)
[6] See Caldeira v. 2068006 Ontario, 2010 HRTO 760 (CanLII)
[7] See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (CanLII) and Olarte v. DeFilippis and Commodore Business Machines Ltd. (No. 2) (1983), 4 C.H.R.R. D/1705 (Ont. Bd. of Inq.), aff’d (1984), 14 D.L.R. [4th] 118 (Div. Ct.).
[8] Shroff v. Tipco, 2009 HRTO 1405 (CanLII)