The case studies in the Students' handouts section can be approached in two ways. The first is a forum discussion of each of the case studies. The second has students role-play at a human rights tribunal hearing. Using both approaches will give students a more complete understanding of how the Code is applied.
Option 1: Forum activity
Divide the class into groups of four or five. Give each group a separate case study for discussion and analysis. Have each group read its case study carefully and then discuss the questions that follow. If students have other questions, these should be noted and answered. Each group identifies one person as the representative for the feedback session.
Set up a forum or fishbowl structure by arranging chairs in a circle (one for each representative), plus one for a group discussion facilitator (you or a student). Include one empty chair, where others will sit when they wish to ask questions or challenge statements raised by the reporting students. The rest of the class should sit outside the circle of representatives.
Each representative reports on her or his case study by explaining the scenario and sharing the group's answers to the questions.
To challenge statements and/or raise other questions, a student must sit in the empty chair, make the point and then vacate the chair.
As each group reports its findings, provide input using relevant information from the discussion points included below.
Option 2: Tribunal role play
With this activity, students take part in a tribunal scenario for each case study. A tribunal usually consists of one person who decides on the human rights complaint (called an application). A final decision by a tribunal can order a person or company that discriminates to pay for any of that person’s losses and make the company change the way it operates to make sure the discrimination does not continue. A tribunal decision is a legal one and therefore can be appealed to a higher court. For more information about this process, see “The Human Rights Tribunal of Ontario” in the appendix.
In groups of seven or eight, students select one of the case studies and prepare arguments for and against the alleged violation. In their groups, they will choose
- Applicant(s) – the person who has the complaint and files an application
- Respondent(s) – the person or organization that the complaint is against and is named in the application
- Lawyer(s) for the respondent
- Lawyer(s) for the applicant
- Witnesses for the applicant and respondent
- Vice-Chair or Adjudicator (who conducts the Tribunal hearing).
When each group has prepared its case, set up a “hearing room” in your classroom. Everyone should have a role in each case as it is acted out. Encourage everyone to
try as many roles as possible.
- The Vice-Chair or Adjudicator introduces him/herself and the parties
- Next, the Vice-Chair sets out the ground rules
- The applicant or his/her counsel starts by setting out his/her issues
- The respondent or the respondent’s counsel sets out their issues
- Both parties present evidence, ask the other party questions
- The Vice-Chair or Adjudicator hears the facts, applies the Code and case law, and makes a decision.
Compare the students' conclusions with the actual findings, included in the discussion points below.
Case study 1: Darlene
This scenario is based on the real-life human rights case of Noffke v. McClaskin Hot House.
As part of a government program, Darlene, a grade 12 graduate, got a job with a local garden nursery. She was to help Mr. M., the owner, tend plants and shrubs, place orders and serve customers.
Mr. M's first review of Darlene's work showed that she was performing all her job duties exceedingly well. It was obvious that Darlene liked the work.
Over the next three months, Mr. M's behaviour toward Darlene began to change. As they worked, he would often put his hands on her shoulders and hips or lean over closer to her. At these times, she would quickly draw away from him. He then began to make offhand remarks about how he was sick of his wife and that he needed “satisfaction” from another woman.
Darlene did not encourage the comments or actions, nor did she say anything against them. However, she was becoming increasingly uncomfortable with the situation and tried to avoid the owner as much as possible. One day, Mr. M. asked her for a kiss. When she refused, he said “I know what's wrong with you. You're scared you're going to like it.” A few days later, Mr. M. suggested that she come to his apartment to have sex with him. Darlene firmly refused, saying that she was seriously involved with her boyfriend. On several other occasions, the owner tried to get Darlene to come to his apartment.
In June, Mr. M. terminated Darlene's employment, saying he had no work for her, even though June is the busiest month of the year for the nursery.
Group discussion questions:
- Did the nursery owner violate the Human Rights Code? If so, how?
- When Darlene first became uncomfortable with the nursery owner's behaviour, why wouldn't she have said something?
- In this situation, would Darlene have had to say anything to the nursery owner for him to know that he might be violating the Code?
- Is Darlene's termination a factor when assessing if her rights were violated?
Was the Ontario Human Rights Code violated? Yes, it was. Darlene's employer sexually harassed her. He repeatedly touched her. He said he was sick of his wife and needed satisfaction from another woman. And, he asked her to come to his apartment to have sex with him.
Why didn’t Darlene speak out when she first became uncomfortable with the owner's behaviour? Maybe she was too frightened, too shy, didn't know how to stop it, or didn't want to lose her job. These are all feelings that can happen when someone is being harassed by someone who is in a position of power over them, whether it be a boss, a landlord, a teacher, etc.
Would Darlene have to say anything to the owner for him to know he was violating the Code? No. The Code recognizes that some forms of harassing behaviour are commonly recognized as unwelcome or unwanted. There are also people who may harass others because they think they can get away with it. That is why the definition of harassment includes the words “ought reasonably to be known to be unwelcome.” Even withdrawing from his touching was enough to let the owner know his actions were unwelcome. We can make someone know that an action is unwelcome through our body language, such as turning away, or by communicating verbally and telling them so.
Was Darlene's termination from her job a factor in assessing whether her rights were violated? Yes. The owner violated the Code on a second count by terminating her after she rejected his sexual advances. This is called “reprisal.” Why else would he terminate her employment when she was performing her job well and it was the busiest time of the year for his business? It is a violation of the Code when a person in a position of authority penalizes or threatens an employee for not complying with a sexual demand. A finding of discrimination may be made if discrimination on a Code ground was one factor in the decision to terminate employment.
In its finding, the Tribunal ordered the owner to pay Darlene $2,750 for mental anguish and $240 for lost wages. It also ordered the owner to post a copy of the Code at his business site and, for a two-year period, to inform the OHRC (which used to monitor settlements and decisions) any time he terminated a female employee.
Having a separate provision for sexual harassment in the Code recognizes that many harassment complaints are sexual in nature and commonly committed by people in positions of authority.
Sexual harassment is not, however, limited only to male-female situations. It can also occur between two men, two women or woman to man.
Case study 2: Paramvir
This was real-life case: Pandori v. Peel Board of Education
In response to increased violence in its schools, a local school board adopted a policy prohibiting carrying weapons on school grounds. The following spring, the school administration learned that Paramvir, a Khalsa Sikh, was wearing a kirpan in school. The school wanted to implement its “no weapons” policy.
Of the estimated 250,000 Sikhs living in Canada at the time, more than 10% are Khalsa Sikhs – they have gone through the Amrit ceremony, symbolizing spiritual commitment. One of the duties of the Khalsa Sikh is to carry, at all times on his or her person, a kirpan, an article of faith symbolizing a spiritual commitment to law and morality, justice and order. A kirpan is a steel knife, encased and secured in a sheath, and generally worn out of sight under normal clothing.
After prolonged discussions with Paramvir's family and Sikh organizations, the school board amended its weapons policy to include kirpans. It forbade Sikh students to wear the kirpan in school – they could only wear a symbolic representation of the kirpan, provided it did not involve a metal blade that could be used as a weapon.
A Sikh teacher took the case to the Tribunal. At the hearing, it was argued that Sikh religious practices dictate that the kirpan must be made of iron or steel and worn at all times, otherwise the Khalsa would break their holy vows. It was shown that, while the kirpan has the appearance of a weapon, it has never been used in Canada as a weapon. Furthermore, it was argued that other school boards did not have a policy restricting kirpans.
The school board argued that:
- Education was not a service covered by the Ontario Human Rights Code but was instead under the jurisdiction of the Education Act
- The kirpan posed a risk as it looked like, and could be used as, a weapon
- Others could perceive the kirpan as an invitation to violence.
Group discussion questions:
- Does the Code prevail, or have “primacy,” over the Education Act?
- Did the weapons policy discriminate against Khalsa Sikhs? How?
- Was the policy reasonable? Suggest some ways the school board could accommodate Khalsa Sikhs without undue hardship – for example, posing a safety risk?
Would the Code take precedence – or have primacy – over the Education Act? Yes.
The Tribunal has ruled that education is a service under the Code, referring to section 47.2 which provides primacy over the Education Act. A school board can exercise its rights under the Education Act as long as those rights do not violate the Code or the Canadian Charter of Rights and Freedoms.
Does the weapons policy discriminate against Khalsa Sikhs? Yes. On its face, the weapons policy violates their rights. Although they can attend school, they will not be able to fulfil one of the important requirements of their religion. However, to demand that a person choose between school or a job and his/her religion constitutes discrimination. Sikh organizations in Canada and high-level Sikh authorities from India verified the argument that the kirpan must be made of iron or steel and worn at all times.
Was the policy discriminatory? Can the school board prove that providing Sikhs with the right to practise their religion (that is, to wear the kirpan) would cause the school undue hardship? Would it pose a substantial risk to student safety?
The Tribunal based its decision on these main issues:
- There was no evidence that Khalsa Sikhs had ever misused a kirpan in any Canadian school
- The kirpan's similarity to a weapon (particularly when secured and worn under clothing) was irrelevant
- While others might well steal a kirpan to use as a weapon, a person bent on aggression could easily get other weapon-like objects on school premises, such as screwdrivers, knives, forks and baseball bats.
In its decision, the Tribunal ruled that sacrificing the rights of Sikhs to control non-Sikhs, who might be violent, was unacceptable, given the other measures available to curtail violence in schools.
It found that the school board had not proven undue hardship and ordered the board to withdraw the amendment about the kirpan. Khalsa Sikhs would be entitled to wear real kirpans to school.
To meet the concerns of both parties, the Tribunal stated that kirpans would have to be of reasonable size, worn under clothing and secured so that removing the kirpan would be difficult. Principals would also have the right to suspend the wearing of a kirpan if its wearer misused it.
Case study 3: Danté
After months of searching for a weekend job, Danté, who is Black, finally got an interview with the owner of a busy car wash and gas station. The owner seemed reluctant to hire him, but Danté managed to win him over. The owner gave him the job, saying that he would be working on a weekend shift with seven other young men, all students from the local area. The shift manager would train him on the car wash equipment.
On Danté's first day, the shift manager gave him only a few minutes of instruction on the equipment. Dante watched what the other men were doing, but when he asked questions, they were not very helpful.
Over the next few weekends, Danté concentrated on his work but because of certain events, he increasingly began to stay by himself. A few co-workers invited him to join their little group for lunch or breaks, but others consistently cracked ethnic and racial jokes, often within hearing of the shift manager. One day Danté overheard the manager say that Black people were responsible for increased violence in the community. This statement encouraged some co-workers, who had previously eaten lunch with Danté, to tell a couple of jokes about Black people. When they glanced at him as they told their jokes, he got up and walked away.
One busy Saturday afternoon, a whole section of the car wash equipment broke down because someone had allowed the system to become overheated. Danté had worked on that section until his break, when a co-worker took over. The system had broken down at some point after that.
The shift manager was furious and accused Danté of negligence. Danté replied that he believed the system was fine when he left for his break. Although Danté insisted that the equipment failure was not his fault, the shift manager fired him. Danté believed he was discriminated against because he is Black, while his co-workers and managers are White.
Group discussion questions:
- Did the shift manager have good reason for firing Danté? Why?
- What factors would a human rights tribunal take into consideration?
Did the shift manager have good reason for firing Danté? No, he probably didn't. It would be difficult for the manager to show that it was Danté who caused the equipment failure, as he had already left for his break. It was not clear if the other employee had partial or total responsibility for the problem.
Danté believed he was fired because he is a Black person. What additional factors would be taken into consideration in a human rights tribunal hearing? The owner promised Danté he would be trained on the equipment by the shift manager. Yet the manager only gave him a few minutes of instruction. Why? Is it possible that the manager did not want to work with him? Is that why the owner was reluctant to hire Danté in the first place?
The shift manager was overheard to say that Black people were responsible for increased violence in the community. Could Danté reasonably expect to get equal treatment from a supervisor with that kind of attitude? The shift manager also contributed to the harassment and poisoned environment by sharing racist jokes with Danté's co-workers.
Furthermore, some co-workers ignored and isolated Danté, possibly contributing to the harassment. This and the poisoned environment constituted discrimination.
A tribunal hearing would determine whether Danté's firing was, at least in part, due to racial discrimination by the shift manager. In effect, if a tribunal finds that discrimination plays even a part in a decision by an employer, then the employer has violated the Code.
Case study 4: Tammy
This case, Youth Bowling Council v. McLeod, was heard by a Tribunal and was then appealed to Divisional Court which dismissed the appeal. The Ontario Court of Appeal later endorsed the Divisional Court decision.
By age 11, Tammy had bowled for five years in the local recreation league. She and several others qualified to enter a province‑wide competition sponsored by the Youth Bowling Council.
Tammy has cerebral palsy and uses a wheelchair, but she has some movement and coordination. So she could bowl, her father built a wooden ramp, the top of which rests in Tammy's lap. She lines up the ramp towards the bowling pins and lets the ball roll down the ramp.
Just before the competition, the Council ruled that Tammy was ineligible to take part. While the Council's rules allowed persons with disabilities to use special equipment to assist them in recreational bowling (provided the equipment did not add force or speed to the ball), they prohibited the use of such equipment in competitions.
The Tribunal and later the Supreme Court of Ontario heard Tammy’s application. The Youth Bowling Council argued that it had not violated her rights under the Code, because Tammy wasn’t capable of the essential requirement of bowling—manually releasing the ball. The Council also contended that the use of special devices would make competition between the bowlers unfair, because the skills assessed would not be common to all competitors.
Tammy's lawyers argued that Tammy was bowling—she was using the ball to knock down pins. Also, the Youth Bowling Council had a duty to accommodate her under the Code by allowing her to use the ramp. Speed and accuracy tests showed that Tammy did not gain any advantage over other bowlers. Her ball speed was too low for maximum results and her accuracy no better than average.
Group discussion questions:
- Could Tammy perform the essential requirement of bowling? Should this |argument have been a factor in determining whether a violation occurred?
- Should the Council have to accommodate Tammy (for example, should they allow her to bowl in competitions with the ramp)?
- Would the Council experience undue hardship if it accommodated her in competitions? Would it change the sport too much? Give your reasons.
This case, Youth Bowling Council v. McLeod, was heard by a Tribunal and was then appealed to Divisional Court. The Divisional Court decision was later endorsed by the Ontario Court of Appeal.
This was the issue: could Tammy perform the essential requirement of bowling, and should this have been a factor in determining whether a violation had occurred?
The Court agreed that manual control and release of the ball (that is, the physical activity in delivering the ball) were the essential requirements of bowling. Tammy needed the ramp to release the ball and thus could not perform the essential requirement.
Since Tammy could not perform the essential requirement without her ramp, did the Council have an obligation to accommodate her? The Tribunal said, “Yes, it did.” In effect, the rule that the ball must be manually controlled has an adverse impact on many people with disabilities such as Tammy, or people without full use of a hand or arm.
The Code says that an organization must accommodate a person with a disability who cannot meet essential requirements, unless it can prove undue hardship.
Would it cause undue hardship to accommodate Tammy in competitions? The Court said “no” for several reasons. Allowing Tammy to use her ramp would not give her an unfair advantage over other bowlers. As the tests proved, Tammy had no competitive advantage over others. While the Council said that skills should be common to all competitors, it did not account for other differences, such as height, weight or maturity, which also affect a person's ability to bowl.
The Court rejected the argument that special devices could be used in recreational bowling but not in competitive bowling.
Was it fair to welcome persons with disabilities in recreational bowling but not in competition, particularly when such persons would have no proven competitive advantage? As the Tribunal pointed out, all participants strive to win, whether they are in recreational or competitive settings, and everyone should have the opportunity to take part in both settings.
The Court supported the Tribunal’s decision that Tammy had been discriminated against based on her disability. The Court ordered the Council to allow Tammy to use the ramp in competitions. This effectively permits all bowlers with disabilities to use special equipment as long as the equipment does not mechanically add force or speed to the ball.
Case study 5: Kyle
This scenario is based on Kyle Maclean v. The Barking Frog.
Kyle is a young man who went to The Barking Frog, a bar in London, Ontario. He went on a “Ladies” Night,” when women are charged a lower cover charge than men. Bars across Ontario (and indeed across Canada and parts of the United States) routinely hold what are commonly called ladies’ nights, where women are charged a lower cover charge or no cover charge to enter the bar or are given discounts on their drinks. This practice has been common in Ontario and elsewhere for decades.
Kyle went to The Barking Frog, where the doorman told him the cover charge was $20 for the men but only $10 for the women in the group. Kyle was upset and was unwilling to pay the $20, so he did not enter the bar.
Kyle launched a human rights complaint claiming the different cover charges amounted to discrimination based on the ground of sex.
Group discussion questions:
- Did Kyle face discrimination? If so, what type?
- What factors would be taken into account to determine if there was a violation of the Code?
- How is substantive equality different from formal equality?
At the Tribunal, the adjudicator explained that the Ontario Human Rights Code is aimed at achieving substantive equality as opposed to formal equality. Substantive equality recognizes that not all differences in treatment lead to substantive discrimination under the Code. The Tribunal stated that in the societal and cultural context of Ontario, holding a “ladies’ night” could not be found to substantively discriminate against men. [See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII), 2010 ONCA 593 at paras. 77 to 91.]
What kind of discrimination is Kyle claiming? He alleges discrimination based on sex. Charging different cover charges based on sex violated his right to freedom from discrimination in services.
Kyle told the Tribunal that by charging men twice what was being charged to women, the Barking Frog supported the belief that men are less worthy than women. He also said that charging a higher cover charge for men discourages them from entering the bar. The Tribunal didn’t accept either argument, noting that men hold a privileged position in our society.
The Tribunal noted that Kyle may have felt that the difference in cover charges seemed unfair. “But whether or not something is unfair in some general sense does not mean
it is discriminatory within the meaning and purpose of human rights legislation.” The Tribunal dismissed the case saying that a “ladies night” or setting a lower cover charge for women is not discrimination against men.
In this scenario, are there different rules and conditions governing men and women in services? Is there a bona fide reason for the difference? Do you agree with the adjudicator’s reasoning for dismissing the application?
Case study 6: Rita
Rita and her family moved to the city from a remote community in the middle of the school year. Within a week, Rita was registered at the local high school and began attending classes. She travelled to and from school by school bus.
After two weeks at the new school, Rita was just beginning to settle into her classes. However, she was somewhat nervous about her history course. After her first class,
the teacher made it clear that Rita had a lot of “catching up” to do, if she were to pass the course.
The following week, some students gave a presentation on Columbus' voyage in 1492 to the “New World.” There was lively discussion, and readings and prints were circulated depicting Columbus' arrival in various territories. There were several references made to “Indians and savages” that the colonists “had to defeat” to settle the New World.
As a member of the Cree Band, Rita was dismayed by the way the teacher did not question the portrayal of Aboriginal persons in the presentation. She approached her teacher before class the next day to discuss the issue. As the class began, the teacher announced that Rita had concerns with the Columbus presentation. She then turned to Rita and asked her to give her version of the “Columbus discovery” from an Aboriginal point of view.
Caught off guard, Rita haltingly made several points, and then sat down quickly when several of the students began to snicker. Later that day on the bus ride home, some of the other students jeered at her, saying if she didn't like history the way it was taught, then she should drop out. She turned away and ignored them. The next day, the jeering continued in the hallway. When she went to her locker at lunch, someone had scrawled the words “gone hunting” on her locker door. Again, she ignored the curious students around her.
Rita told her parents about the incidents. They called the principal, who said she would give “hell” to the offenders. She also suggested that Rita should make more of an effort
to fit in and get along with others.
Group discussion questions:
- How should the teacher have handled Rita's concern over the Columbus presentation?
- Should the principal deal with the situation in a different way?
How should the teacher have handled Rita's concern about the class presentation?
As school curriculum areas better reflect diversity issues, this type of situation should cease to arise. The students showed a very ethnocentric view of the events surrounding Columbus' voyage. Obviously, the experience of the settlement of North America was not the same for the Aboriginal Peoples as it was for people who came here from Europe.
Asking Rita to present the “Aboriginal point of view” was extremely unfair. It assumed that Rita could speak for all Aboriginal peoples – an action that stereotypes Aboriginal persons. As well, it implied that it was not the teacher’s job to make sure a balanced view of the subject was presented.
When the teacher first gave the assignment, or later, when Rita raised her objection, the teacher could have prevented the situation by either:
- Asking the class to discuss the 1492 events from the point of view of both Columbus and of the Aboriginal Peoples living in the Americas
- Identifying similar situations in history and asking students to examine the perspectives of both “invader” and “invaded.”
Either of these alternatives would have avoided singling Rita out and making her feel different because of her Aboriginal heritage. By setting Rita apart from the others, the teacher set the stage for the student harassment and bullying that followed.
How should the principal deal with the situation? The school has a legal obligation to maintain an educational environment free from harassment and discrimination. The principal should take the matter very seriously and make sure that everyone knows the school does not tolerate this type of behaviour.
If the principal disciplines the offenders, she may create an even worse situation for Rita, as they may feel they were punished because of her. Rita might then be confronted by taunts for being a troublemaker, in addition to the racism she has already experienced.
The principal should consider having an educational session to discuss diversity, equity and human rights issues with all students and staff. The school should adopt a positive approach to help everyone develop more favourable attitudes toward Aboriginal culture. This can be accomplished by assigning readings, showing videos, inviting guest speakers, etc.
If Rita's harassment continues, then the principal or teacher may need to take disciplinary action.
Case study 7: Cindy
This scenario is based on Cameron v. Nel-Gor Castle Nursing Home, which went before a Tribunal and then was appealed to Divisional Court.
Cindy, 19, applied for a job at a nursing home as a nursing aide. She had previously worked part-time as a kindergarten teacher's aide and had also cared for children with mental and physical disabilities during her high school years. In her initial interview, the assistant administrator told Cindy she was an ideal candidate and that she probably would be hired.
She was given a pre-employment medical examination for her family doctor to complete. He confirmed that she could meet the requirement of being able to lift patients.
At a second meeting, the interviewer reviewed the completed medical form and noticed Cindy's hand. During the initial interview, the assistant administrator had not observed her left hand, on which the index, middle and ring fingers were much shorter than those on most hands. Following this, the interviewer and another nursing director spent much time discussing Cindy's disability and the job requirements. Even though they both really wanted to hire Cindy, they didn’t think she would be able to cope with the gripping or clasping that is needed to lift patients.
Although Cindy said she could perform the duties and had done similar tasks in her previous job with children with disabilities, she was not hired.
Group discussion questions:
- Did the interviewer have reasonable grounds to believe that Cindy could not do the job?
- On what basis did the interviewers assess that Cindy could not meet a bona fide job requirement?
What do you think the interviewer and the nursing director should have decided? What are your reasons? On what basis did the employers make their assessment of Cindy's physical ability? Did they have reasonable grounds to believe that Cindy could not do the job?
It appears that the administrator and director had honest opinions, based on their medical and nursing home experience. Their opinion, however, contradicted both Cindy's doctor's assessment and her own belief. Having performed similar tasks before, Cindy felt she was able to meet the requirements.
Their assumption that Cindy could not handle the essential duties of the job was based on the subjective “impression” that Cindy could not lift patients.
The administrator didn’t contact Cindy's doctor or ask Cindy to take a test to show that she could perform the essential duties of the job.
The Tribunal found that an “impression” is subjective in nature and that the respondent must establish an objective basis, through facts or evidence, that Cindy's alleged disability would preclude her from meeting the essential job requirements.
While the employers made their decision in good faith without intent to discriminate, the effect of their actions on Cindy was, nevertheless, discriminatory.
Case study 8: Maria
This case study is based on Maria Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido (No. 2, 3 and 4). In presenting the case to the Tribunal, the applicant’s lawyers raised these issues:
- She was harassed in the workplace and subjected to a poisoned work environment
- She was dismissed from her job because of her gender identity.
When Maria began working for the packaging company in 2003, her first name was Tony. She was hired as a general labourer on August 24, 2003. In 2008, she was accepted in the gender identity clinic and began transition from living as a man to living as a woman. She started the process of sex reassignment and developed female breasts as a result of hormone treatments. Maria says that she was harassed, subjected to a poisoned work environment and dismissed – all violations of the Human Rights Code.
Maria said that Gerry, a lead hand and machine operator, played a central role in the harassment and the incident that led to her dismissal. The packing company said the allegations never happened. The company argued that it treated the applicant appropriately, considering her a man and treating her like other men until it received medical or legal documentation that she was a woman. They say they fired her because of her attitude and being involved in workplace conflicts that were her fault, as well as insubordination.
Group discussion questions:
- In what ways do you think Maria might have experienced discrimination in her employment?
- What reasons do you think Maria's supervisor would give for firing her?
What do you think of these reasons?
- What remedy do you think Maria should receive because she was discriminated against?
Poisoned environment: Maria argued that the following contributed to a poisoned environment in her workplace”:
- Derogatory comments made by co-workers about her gender identity and being required to use the men’s change room
- The owner of the company contributed to this poisoned work environment by insisting that Maria be treated like a man in all respects until she completed surgery, including requiring her to change with men
- The owner also failed to investigate and respond reasonably to Maria’s allegations that she was being harassed because of her sex and gender identity.
The adjudicator heard evidence that Maria was often in conflict with her co-workers and had been disciplined for making a racist remark in the workplace because she was angry with a co-worker. At the time of this complaint, Maria dressed as a woman before changing into a gender-neutral jumpsuit that all employees wore on the plant floor. She often wore make-up at work.
Harold, the Director of Operations, said that he wasn’t aware of Maria’s transition until 2008 when she began wearing women’s clothing. He said Maria did not specifically tell him of her transition or request modifications to her work or use of gender-segregated facilities.
Maria was stared at, pushed, shoved, or people threw things at her. She said other employees were coerced into avoiding her and not helping her in her work. When people made derogatory comments, she reacted by swearing at them.
The adjudicator found that Maria was a good worker, but often got involved in interpersonal conflicts. She was disciplined for making a racial remark while getting angry at a co-worker; and for getting angry at other co-workers. She was disciplined for these incidents and then Harold fired her. Shortly after, Harold left the company for another job and Maria was rehired. In November 2007, she was suspended without pay for a week for becoming aggressive and upset, throwing a piece of wood and swearing at another employee.
The adjudicator also found that before she was fired she was subjected to a poisoned environment because of the harassing comments about her gender identity and the requirement that she use the men’s change room. The lead hand, Gerry, in particular contributed to the poisoned work environment by insisting that Maria be treated as a man in all respects. The Adjudicator stated, “Insisting that the applicant be treated in the same manner as men until her transition was fully complete, was discrimination. It failed to take into account the applicant’s needs and identity.”
Maria was awarded $22,000 for injury to dignity, feelings and self-respect together with pre-judgment interest, as well as the wages she would have earned had she continued to be employed in her previous position until January 11, 2011.
The company was also ordered to hire a human rights expert to help develop and implement human rights and anti-harassment policies, and all company managers had to take training on human rights law and how to administer the provisions of the organizational human rights and anti-harassment policy.
Case study 9: Tawney
This case is known as British Columbia (Public Service Employee Relations Commission) v. BCGSEU and is frequently referred to as “Meiorin” or the “B.C. Firefighter Case.” Even though the case was originally dealt with as a grievance, it is still a “human rights” case as many provinces have labour legislation giving arbitrators the responsibility of applying human rights laws in relevant cases [for Ontario, see the Labour Relations Act, 1995, s. 48(12)(j)]. Ultimately, this case was decided at the Supreme Court of Canada, which means it also applies in Ontario.
Tawney worked as a forest firefighter for the Province of British Columbia and was a member of the Initial Attack Forest Firefighting crew for a small area in the forests of BC. The crew’s job was to attack and suppress forest fires while they were small and could be easily contained. Her supervisors found her work satisfactory and had no reason to question her continuing ability to do the work safely and effectively.
After she had been successfully doing this job for three years, the government adopted a new series of fitness tests for forest firefighters. The tests were developed in response to a Coroner’s Inquest Report that recommended that only physically fit employees be assigned as front-line forest firefighters for safety reasons. The tests required that forest firefighters weigh less than 200 lbs. (with their equipment) and complete a run, an upright rowing exercise, and a pump carrying/hose dragging exercise within stipulated times.
The running test was designed to test the forest firefighters’ aerobic fitness. Subjects were required to run 2.5 kilometres in 11 minutes. After four attempts, Tawney failed to meet the aerobic standard, running the distance in 11 minutes and 49.4 seconds instead of the required 11 minutes. As a result, she was laid off.
Stating that the test unfairly discriminated against women, Tawney’s union brought a grievance on her behalf.
Group discussion questions:
- What do you think about having different standards for men and women?
- Do you think the test was a fair way of measuring a firefighter’s ability to
do the job?
- If Tawney was passed, even though her running time was below what was required, is she being given preferential treatment over men?
Evidence accepted at the hearings showed that, due to physiological differences, most women have a lower aerobic capacity than most men. Even with training, most women would not be able to increase their aerobic capacity to the level required by the aerobic standard adopted by the government in this case, although training can enable most men to meet it. Evidence was also heard that 65% to 70% of male applicants pass the tests on their initial attempt, while only 35% of female applicants are successful. This
was accepted as evidence of discrimination based strictly on gender, as these conditions resulted in significantly fewer women than men being employed in the particular Attack Crew that Tawney worked on.
The government argued that it had done extensive research in determining the threshold levels for passing the tests. However, it was unable to convince the Court that the required aerobic capacity was really necessary for either men or women to effectively perform the work of a forest firefighter. On the contrary, because Tawney had in the past performed her work well, without apparent risk to herself, her colleagues or the public, it appeared that the test was invalid. This shows that, while physical fitness may still be a job requirement, that particular test could not adequately measure a person’s ability to perform the duties of a forest firefighter.
It was suggested that if Tawney was allowed to stay in her position this might result in “reverse discrimination,” i.e., setting a lower standard for women than for men would discriminate against men who couldn’t meet the men’s standard but were nevertheless capable of meeting the women’s standard. The Court disagreed with this logic. It held that equality means to be treated according to one’s own merits, capabilities and circumstances. True equality requires that differences be accommodated; that equal treatment may require that people sometimes be treated differently. A lower aerobic standard capable of identifying women able to perform the job safely and efficiently does not necessarily imply discrimination against men.
The Court decided that the aerobic standard discriminated against women. In its defence, the government then had to show that the standard was necessary to safely and effectively perform the essential job duties of a forest firefighter. This it failed to do.
As a result, Tawney was given her job back and the government was given the task of finding some other non-discriminatory way of testing firefighters to assess their physical fitness as a condition of holding their job.
Case study 10: Réjeanne
Québec (Commission des droits de la personne et des droits de la jeunesse) et Mercier v. Montréal (Ville) (2000), 37 C.H.R.R. D/271 (Supreme Court of Canada)
This is a very significant human rights decision for Ontario, even though it took place in another province. Each province has its own human rights system responsible for promoting and enforcing human rights legislation within that province. Decisions handed down in one province can potentially give guidance to other provinces when considering similar cases. Decisions that are made at the level of the Supreme Court will normally be precedent-setting in all jurisdictions within Canada.
Réjeanne lived in Montreal. Her career goal was to become a horticulturalist. She had successfully passed a college course and completed an apprenticeship as a gardener with the city’s Botanical Gardens. When a suitable opening came up to work as a horticulturalist with the city, she immediately sent in her application.
Réjeanne was fully qualified for the position and was invited for an interview. She successfully passed the interview. However, she also had to undergo a physical check-up to confirm her suitability for the job. This check-up indicated she had a slight curvature of the spine called scoliosis. Réjeanne was surprised to learn this, as she had never experienced any symptoms from this relatively common condition. In fact, she had never experienced any pain, nor had she suffered any limitations because of her condition. A later evaluation showed that Réjeanne was able to perform all the duties of a gardener-horticulturalist in complete safety to herself and others, and that there was no need to limit her duties.
When it became aware of Réjeanne’s condition, the city decided to hire another candidate who it thought would be less of a risk for back problems and therefore unlikely to incur increased health care costs later on. The city rationalized its decision saying that it had the right and even the responsibility to employ individuals who would pose the least potential cost to taxpayers.
Believing the city had rejected her application because of a handicap, Réjeanne made a complaint to the Human Rights Tribunal. Réjeanne alleged that the city acted in a discriminatory way that deprived her of unemployment insurance benefits, caused her a high level of stress and deeply humiliated her. The city responded that because Réjeanne had no functional limitations, it could not be said that she had a disability under Quebec’s Charter of Human Rights and Freedoms.
Group discussion questions:
- Why do you think that the city should or should not have hired Réjeanne?
- If it is possible that Réjeanne will develop back problems, do you think that the city did the right thing by not hiring her?
- Do you think society’s view towards persons with disabilities has a positive or negative impact on the barriers they face?
In the case of Réjeanne, the provincial Human Rights Tribunal dismissed the claim based on the city’s argument that they were entitled to choose candidates who were in better health. The Tribunal further stated that, since Réjeanne did not appear to have any limitations as a result of her condition, she could not make a claim based on “handicap” or disability under the Charter of Human Rights and Freedoms (Quebec’s human rights legislation).
Réjeanne’s lawyers appealed the Tribunal’s dismissal to the Quebec Court of Appeal. Both the Court of Appeal and, later, the Supreme Court of Canada, overturned the Tribunal decision and ruled in Réjeanne’s favour. The reasoning behind the Court’s decision reflects an emerging view of discrimination at that time. Discrimination because of disability and other grounds as well may be based as much on perceptions, myths and stereotypes, as on the existence of any real limitations on a person’s abilities.
Today, this is referred to as “perceived disability” (see Understanding discrimination in a social context – “social construction of disadvantage”).
Disability, the Court said, is not defined by the Charter. However, the Court also noted that, consistent with the intent of human rights legislation, the concept of disability should be interpreted broadly when considering what will be accepted as an application or complaint.
It also said that Canadian courts have begun to consider the objective basis for certain exclusionary practices (for example, whether the person actually has a disability), as well as the subjective and erroneous perceptions held by employers, landlords, etc., that a person has limitations. Therefore, the term "disability" may include either a real disability or one that is only perceived to exist. What really matters is how the person experiences and is affected by the distinction, preference or exclusion, not the precise nature of the handicap, or its cause or origin. These are seen as being immaterial.
The Court also pointed out that the Canadian Charter of Rights and Freedoms prohibits discrimination based on the possibility that a person may develop a handicap in the future.
Having found that the city had discriminated against Réjeanne on the basis of handicap, the Court referred the case back to the Tribunal to set a remedy. Réjeanne was awarded $102,075.67, an amount that included lost salary and interest as well as $5,000 damages for injury to her self-esteem. The City of Montreal was also ordered to offer her sufficient hours of work so she could complete her probation period within 12 months. This would allow her to seek full-time employment.
Case study 11: Alia and Ahmed
This situation is based on the Eldridge v. British Columbia (Attorney General) decision.
There are many people in Ontario who are deaf, deafened or hard of hearing. Some people may use sign language as their first language or preferred means of communication, and their lack of fluency in English can seriously impede their ability
to communicate unless aided by interpretation. For these Ontarians, effective communication and getting fair access to services and employment is very hard.
Alia and Ahmed are parents who were both born deaf. They were expecting twins and would usually provide their own sign language interpreters for their medical visits. Unless an interpreter was present, communicating information was often frustrating for them. At the same time, any miscommunication about medical information could be dangerous.
Alia went into labour eight months into her pregnancy. She and her husband found themselves at the hospital without the aid of an interpreter. Neither the attending doctor nor the nurses could effectively communicate with the parents, who found this isolation difficult and frightening. After the babies were born, they were immediately taken away from the delivery room and put under observation in another area of the hospital. One nurse wrote on a piece of paper that the children were “fine.” Otherwise, no one gave any details about the twins’ condition to either Alia or Ahmed.
In their human rights complaint, Alia and Ahmed alleged that the hospital was providing unequal services because it did not accommodate their needs as deaf persons. The hospital replied that it was too hard to bring in interpreters on such short notice, and that it was too expensive to keep interpreters on call 24 hours a day.
Group discussion questions:
- How would you feel if you were in the same situation as Alia or Ahmed?
- Whose responsibility is it to provide sign language interpreters in public service sectors?
- How would this claim be covered under the Code?
- Do you think it’s unreasonable for deaf people to expect interpreters to be available in emergency situations? What about in other non-emergency situations?
The Supreme Court of Canada issued a unanimous decision on this case. The Court required the Government of British Columbia to make sure that sign language interpreters are provided where necessary for effective communication when delivering medical services. Not providing such interpretation violates the rights of people who are deaf and who cannot adequately access health care services without an interpreter. The Court said that the health care system must accommodate the needs of people who are deaf under the equality provisions in the Charter of Rights and Freedoms.
The Eldridge ruling has wide-ranging consequences. The decision went beyond guaranteeing interpreters for persons who are deaf in medical situations when necessary. It stated that governments have a legal obligation to provide equal access to public services for all people, including people with disabilities. Within reasonable limits, persons with disabilities should not be prevented from using government services like health care, education and training, or social services that are available to everyone else. Services should be designed to be fully accessible, and barriers that prevent every member of the community from fully taking part must be removed.
The government argued that providing sign language interpreters on a continuous basis was too expensive and caused it “undue hardship.” The burden of proving undue hardship lies with the person or body responsible for providing the accommodation. In determining if an accommodation measure creates undue hardship, the following factors should be considered: cost and health and safety risk. In this case, the Ministry of Health could give no evidence that providing sign language interpretation would result in a serious threat to government resources. In fact, the total budget of the Ministry would hardly be affected by the cost of the small number of interpreters needed to maintain the service. In the case of a smaller business, however, the defence of “undue hardship” might still be used.
In assessing undue hardship, the size of the organization and its operations, the nature of its business and its financial capabilities are considered.
Case study 12: Marc
Hall (Litigation guardian of) v. Powers, 2002 CanLII 49475 (ON SC), http://canlii.ca/t/1w3mh
Marc is a gay 17-year-old student attending a publicly-funded Catholic high school. He wishes to go to the prom with a same-sex date. The prom is being held at a rental hall off school property.
The school principal and the Catholic School Board have said “no” on the grounds that this would be endorsing conduct contrary to the church’s teachings. Marc believes that this is a violation of his human rights. He is considering seeking a court injunction because the prom is only weeks away.
Group discussion questions:
- What ground and social area does Marc’s application fall under?
- What competing rights are involved here?
The questions below take you through each step of the OHRC’s Framework for balancing competing rights. First, review each question with the facts that are set out below; then discuss whether the facts can help you come up with an answer to each question.
1. What rights and/or interests, if any, are the claims linked to?
a. Does the situation involve individuals or groups? Or is it about how the school operates?
- Marc and his boyfriend who attends another school
- Marc’s school friends and peers who can bring their opposite-sex dates
- Other LGBTQ students who might have liked to bring dates
- Marc’s parents and parents of other LGBTQ students who are involved in school life and look forward to this “rite of passage” for their children
- School staff who have worked hard with students and want to support their celebration
- LGBTQ community members and advocates who could not bring same sex dates to their proms and continue to experience stigma and discrimination
- The school principal who understands his job responsibilities include instilling a religious environment across extra curricular and social activities
- Catholic school board members who understand their responsibilities to include upholding religious teachings through board policy and practice
- The Catholic Church, which sees its role as the spiritual guide to school board policy and practice over religious matters
- Other students, staff and parents who are concerned about maintaining a Catholic environment and not promoting the “gay lifestyle”
- Other schools in the board that may have to address similar requests and are watching the outcome of this case.
b. What human rights, other legal entitlements or bona fide and reasonable interests might be invoked?
- Freedom from discrimination based on sexual orientation including a poison-free environment under Ontario Human Rights Code s.1 and Charter equality rights s.15(1)
- Freedom of expression, Charter s. 2(b)
- Freedom of association, Charter s. 2(d)
- Reasonable limits on rights Charter s.1
- Right to and requirement for elementary and secondary school education from age 6 to 18 under Ontario’s Education Act
- Right to education without discrimination under the UN Convention on Economic, Social and Cultural Rights articles 2 and 13.1 & 2
- Freedom of religion only limited by need to protect rights of others, UN Convention on Civil and Political Rights article 18.3
- School-sanctioned extracurricular and social activities may be a bona fide reasonable benefit of school life
- Separate (Catholic) school rights preserved under Ontario’s Human Rights Code s.19, Charter s.29, 1867 Constitution Act s. 93
- Education Act provisions and regulations relating to Roman Catholic Boards
- Freedom of conscience and religion under Charter s. 2(a), and under the UN Convention on Civil and Political Rights article 18.1
c. Does the claim fall within the scope of the right or other entitlement in this context?
- Extracurricular/social activities held off school premises not at the core of teaching
- Prom is not a religious event, is not educational in nature, and is held off school property
- Diversity and inconsistency of Catholic opinion and practice: school accepts gay students but wishes to suppress all activity connected with their sexuality.
Catholic School Board claim:
- Catholic school rights include full board discretion over religious matters
- All school sanctioned activities, on or off-site, must promote and uphold religious teachings
- School board practice has been consistent with policy, even if diversity of Catholic opinion exists.
2. Amounts to more than minimal interference with a right?
- Unlike other students, he is not free to choose his date for school social functions, and would have to go without his boyfriend
- Prohibiting a same-sex date substantially interferes with the nature of a prom, which typically involves bringing a date and/or dancing with a partner of choice
- Would miss out on this end-of-school/graduation “rite of passage”
- Different treatment based on sexual orientation amounts to serious injury to dignity.
Catholic School Board claim:
- Allowing same-sex date at extracurricular/social activities would impede school’s ability to promote religious school environment and teach religious curriculum consistent with tenets of the faith during core hours
- Would have broad impact on other Catholic schools and the Catholic Church.
3. Is there a solution that allows enjoyment of each right?
- Prohibit non-LGBTQ students from bringing formal “dates” to the prom as well
- Allow any student to bring a “guest” who is not a student of that school
- Require all students to refrain from intimate behaviour
- Using such neutral terminology and an inclusive policy approach could help avoid further stigmatizing people based on their sexual orientation
- School would otherwise limit upholding formal Catholic board policy and Church position on religious tenets to educational settings and core hours
- Board could maintain position that a “don’t ask, don’t tell” guest policy would not prejudice Catholic school rights.
- Change school/board policy to no longer sanction/organize/fund proms as official school events; these events would be a student-initiated responsibility held off-site without any formal connection to the Catholic school or board.
4. If not, is there a next best solution for one or both rights?
- Allow Marc to attend with a “guest” friend of his choice while allowing other students to attend with their formal opposite-sex “date”
Catholic School Board claim:
- Comply with any court injunction and allow Marc to attend the prom with his “boyfriend” in this case only
- Take the position that such an injunction does not prejudice Catholic school rights
- Examine Church doctrine more closely against school/board policy to deem whether proms are at the core or periphery of Catholic school rights.
Must be consistent with human rights and other law, court decisions, legal principles and have regard for OHRC policies.
- Hall v. Powers, Ont. Superior Curt 2002 (injunction order allowing Hall to attend prom with same-sex date)
- Smith v. Knights of Columbus, BCHRT 2005 (re: scope of organizational obligations on versus off premises)
Catholic School Board claim:
- Hall v. Powers, Ont. Superior Court 2002 (did not rule on Catholic school rights)
- Ross v. New Brunswick School District No. 15, SCC 1996 (re: poisoned environment).
At least one claim must fall under the Code for it to be considered at the Human Rights Tribunal of Ontario.
- Schools fall under Code s.1 “service”
- Marc’s claim involves Code ground of sexual orientation.
Catholic School Board claim:
- Catholic board claim falls under Code s.19 defence. Section 19 (1) says:
This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act.
R.S.O. 1990, c. H.19, s. 19 (1).
Court’s decision: The court ordered the Board to not allow any staff who know about the case to prevent Marc from attending the prom with his boyfriend.
For more information on competing human rights, see the OHRC’s Policy on competing human rights: www.ohrc.on.ca/en/policy-competing-human-rights; or the special issue of Canadian Diversity on Balancing Competing Human Rights: www.ohrc.on.ca/en/news_centre/special-issue-canadian-diversity-talks-about-competing-human-rights