IV. Human rights issues at all stages in employment

This section addresses the many practical issues that arise when an employer is called on to resolve human rights issues using existing human rights policies and complaint resolution procedures. For more information about proactively establishing a human rights strategy to prevent and address discrimination, refer to Section IV-1a) – “Strategy to prevent and address human rights issues.”

a) The employer is responsible for stopping and addressing discrimination

All employers are responsible for dealing effectively, quickly and fairly with situations involving claims of harassment or discrimination. At a minimum, employers must respond to internal discrimination complaints by:

• having a complaint mechanism in place
• having a corporate awareness of what constitutes discrimination
• taking the matter seriously once an internal complaint is received
• acting promptly (including investigating the internal complaint)
• providing the complainant with a healthy work environment
• communicating to the complainant its actions in response to the complaint.

i) Lack of complaints does not mean there is no problem to address:

In some cases, employees may come forward to raise allegations of harassment or discrimination as soon as they happen. More commonly, especially in cases of sexual harassment, employees may decide to cope with the situation using a range of strategies that may or may not include reporting it. In choosing how to deal with harassment and discrimination, employees may be influenced by factors such as the tone set by senior management, what response they can expect to get if they raise the issue, and what their alternatives would be if they lost their job because of “rocking the boat.” The combination of these may be a barrier to reporting for employees, in particular for persons identified by multiple grounds who may face significant obstacles in the job market.

Example: An Aboriginal woman is repeatedly, and openly, exposed to incidents of discrimination and harassment in a male-dominated work environment. She copes by keeping to herself at work and getting support from her family at home. She does not follow the company’s internal procedure for filing complaints because she has seen what has happened to others viewed as “troublemakers,” and there is not much point because management doesn’t seem to mind the workplace culture. She also remembers how hard it was to find a job with steady hours and good benefits. Ultimately, the harassment leads to termination of her employment and at that time she takes action under the Code. The company may be held liable for not addressing harassment and discrimination that it knew of or ought to have known about, even though she did not raise her allegations while she was employed.

Employers may be surprised to hear that women who have experienced sexual harassment in the workplace often note that the experience of reporting the harassment may be as bad or worse than the initial harassment. In many cases, people who raise allegations of human rights violations in the workplace experience negative impacts on their work life, personal life and health on top of the immediate problem of discrimination or harassment. For example, they may not be believed or may be viewed as having caused the problems. In the worst cases, these views might lead to reprisals that prevent the employee from being fully productive, and that may serve as the basis for further human rights claims. People who work with someone exposed to discrimination in the workplace, who may be called upon to give information as a witness, may also have concerns about reprisal. See Section III-2h) – “Reprisal and threat of reprisal.”

In many cases, an employee may put up with a discriminatory work environment while actively job searching, and may leave once they have found another job. The fact that an employee may choose to quit instead of raising allegations of discrimination does not relieve the employer of its obligation to prevent and address discrimination.

Example: Two women suddenly quit. It is common knowledge that they left because of sexual harassment by their manager. The employer does not investigate the potential existence of sexual harassment and takes no steps to ensure future compliance with the Code or address the situation between the women and manager. If either of the women files a human rights claim, or if other employees later face discriminatory treatment, the lack of action by the organization and its senior employees would be considered.

The best course of action is for an employer to create an environment where discrimination and harassment are discouraged, and where employees are able to raise concerns promptly when they arise rather than silently enduring or ignoring troubling situations. It can be expected that successfully introducing human rights policies and procedures may result in an increased number of complaints in the short term, as employees become aware of their rights and their ability to enforce them effectively.

Be alert to possible inequities, misuses of power or other indications that discrimination or harassment may be happening even if no complaint has formally been made. In some cases, it may be necessary to investigate proactively rather than waiting for someone to come forward with allegations.

Example: All the women in a group are assigned to work outdoors in the parking lot during the cold winter months, a task that is not normally part of the duties of that position. Most of the women are racialized and speak English as a second language. There are high rates of absences and turnover for the women in that group compared to women supervised by other managers. Whenever a posting for a temporary assignment in any branch of the organization comes up, all the female members of this group apply even if the hourly pay is much less. Although no complaints of harassment have yet been filed, these circumstances warrant further inquiry.

ii) Ensure the personal safety of employees in cases of harassment:

Workplace harassment has the potential to cause risks to personal safety and may lead to serious health problems, such as depression, anxiety, headaches, fatigue, sleeplessness and increased blood pressure. Harassment fundamentally affects an employee’s self-esteem, integrity and well-being, both in and out of the workplace. In some cases, it may involve violence – real or implied – against an employee. In rare circumstances, the harasser may resort to physical violence, resulting in tragedy. If there is reasonable cause to fear violence, employers should do everything possible to minimize the threat of violence to all their staff and, where appropriate, make sure that the police are informed.

When removing an alleged harasser from the workplace or calling the police, take care to make sure that these types of judgments are not inappropriately influenced by racial or other stereotypes and bias. A best practice is to identify in advance the types of situations where the police will be called, and to apply this policy fairly and consistently.

Employees who fear, or are experiencing harassment may stay away from work to avoid the stress. Chronic stress-related illnesses frequently result from workplace harassment. Sometimes victims reluctantly quit their jobs to avoid a difficult situation, or seek other ways to avoid the person. In the worst scenarios, victims of harassment are injured or killed. To avoid these types of serious situations, and potential liability under the Code, employers should develop, train employees on, and use workplace policies and procedures to prevent and address harassment. Respect, support and information are also essential for persons who have experienced workplace harassment. Referrals to rape crisis or sexual assault centres may be of some help in some situations of workplace harassment but are not always appropriate.

When a person alleging harassment and the alleged harasser work together or near one another, the employer should consider moving one of the parties to another location. In some cases it may be necessary to place one or the other on a paid leave of absence until the matter has been resolved. Employers should be cautious about removing a person who has alleged harassment in the workplace, unless this is done at their explicit request, as this may be seen as a form of reprisal.

Example: A secretary alleges that her boss, the VP of Finance, has sexually harassed her. She states that her environment is poisoned and she no longer feels safe working with him. While there is objective evidence to confirm that harassment likely occurred, the decision is made to put her on a leave until an investigation is concluded. This is because there are other secretaries who can fill in for her, whereas the VP Finance is viewed as essential to the operation of the business. Also, the company is concerned about minimizing the impact of the allegations on the VP’s reputation and feels that it cannot afford to have the employee around. The company would not be seen to have met its obligations under the Code, and is vulnerable to allegations of reprisal and exposure of other employees to a poisoned environment.

Recent recommendations from a coroner’s jury emphasize the need for workplace violence policies, education around domestic violence, screening tools that do not rely on a person’s own assessment of the risks they pose to the workplace, and an awareness of the power imbalances that may exist, for example between physicians and other staff in a hospital setting.^[77] See also Section III-2k) – “Sexual harassment” for more information about the Code and sexual harassment and Section IV-12a(iv) – “Mobbing and bullying.”

iii) Poisoned environment:

Tribunals have held that the atmosphere, including the emotional and psychological circumstances, of a workplace is a condition of employment just as much as hours of work or rate of pay. Employers, including managers, are expected to take steps to address a poisoned environment that they know of or ought to know of. This obligation exists even if:

• they personally did not do or say anything to poison someone’s work environment
• they have not personally experienced the discriminatory environment (for example, all staff know that Sam makes racial jokes but the supervisor has never heard them)
• no one has formally complained
• the discriminatory acts have been carried out by clients or other third parties who are not employees of the organization
• the harassment is done anonymously, by a group or is not directed against a specific person (for example, graffiti appears on a racialized employee’s locker and no-one knows who did it).

iv) Mobbing and bullying:

Mobbing is the ongoing, systematic bullying of an individual by his or her colleagues. Mobbing in the workplace arises from peer pressure and typically involves many co-workers, similar to bullying among children in schools. It has been said to be more prevalent than other destructive behaviours, such as sexual harassment and racial discrimination.

Mobbing could be overt behaviours such as rudeness and physical intimidation. More often, it takes subtle forms such as ignoring someone or excluding them from social situations and meetings. Mobbing could be intentional or unintentional. Either way, the cumulative impact of such incidents on an employee can be significant. Research shows that victims of mobbing spend up to 50% of their time at work defending themselves and trying to deal with the mobbing.^[78]

Although mobbing is not specifically prohibited in the Code, such behaviour clearly affects a person’s ability to take part with dignity in the workplace, and should be addressed by the employer even where no Code ground appears to be at play. There is clearly a business incentive to do this, as mobbing and bullying behaviours prevent employees from achieving their maximal productivity. Also, mobbing and bullying create a workplace culture where human dignity is not respected and discrimination under the Code may thrive – leaving an employer vulnerable to claims of human rights violations.

Employees protected by the Code may be particularly vulnerable to bullying and mobbing by people in the dominant culture because they may not share the same creed, sexual orientation, gender or level of ability. Persons with mental disabilities are often subjected to mobbing due to stigma and stereotypes.

In many cases, the mobbing behaviour or bullying itself may amount to harassment or create a poisoned environment under the Code that an employer will be liable for if it does not recognize and address it. When an employee is mobbed and the employer does not respond appropriately, this may discourage other employees from advocating for their own human rights. For example, an employee may not raise accommodation needs until a crisis point is reached. This kind of feeling that human rights are not respected in that workplace hinders an effective response by the employer, and unaddressed problems continue to grow.

In some cases, mobbing can lead to symptoms such as back pain, muscle pain, headaches, digestive problems, anxiety, depression or other mental disabilities for which accommodation will be needed. When combined with everyday work stresses, pre-existing disabilities or family obligations, mobbing and bullying can make the work environment intolerable – perhaps even leading to a lengthy leave of absence from the workplace.

Example: A gay employee is routinely talked about as if he is not present. When birthdays of everyone in his group are celebrated, he is not invited, and his birthday is the only one not celebrated. His work is quite demanding and requires working often with colleagues. His colleagues don’t respond to his requests for input in a timely way, and joke about leaving him hanging. Although his mental health had been stable for many years before joining this group, within months, his symptoms flare up.

b) Advise employees of their right to file a human rights complaint or grieve

i) Human rights claim may be filed at the same time as internal processes:

Internal anti-harassment and anti-discrimination policies are not alternatives to filing a complaint under the Code. If the in-house process or policy does not resolve the dispute, the person has the option of filing a human rights claim under the Code as described in more detail below. It is important to tell employees that having an internal procedure for resolving complaints does not in any way stop them from going to the Commission, Tribunal or courts if they want to. The applicable time limitations should be pointed out to employees with human rights concerns.

ii) Grievance procedures under collective agreements:

Some employees may also have rights under employee collective agreements that will give them other choices for dealing with a complaint, such as filing a grievance. The rights and obligations of the Code are incorporated into collective agreements, and alleged violations of the Code are alleged violations of a collective agreement. The Supreme Court of Canada has confirmed that grievance arbitrators in Ontario must implement and enforce the substantive rights and obligations of the Code and other employment-related statutes as if they were part of the collective agreement.^[79]

iii) Don’t wait for outcomes of other processes to resolve issues:

Employers should avoid using a “wait and see” strategy where efforts to resolve or address allegations are postponed pending the outcome of an employee’s efforts to get redress under the Code from grievance procedures or formal human rights claims. While there is a possibility that the person may be unable to prove that discrimination occurred, there are significant risks associated with waiting to take action:

• there may be continuing disruption, rumours and unrest in the workplace with corresponding effects on productivity, work performance and employee satisfaction;
• an employer’s reputation may be affected by outstanding allegations of human rights violations;
• the organization may experience increased employee absences, turnover and a loss of experienced staff as employees choose to work elsewhere;
• the organization is exposed to the real possibility of further complaints arising until steps are taken to prevent or address discrimination;
• any failure to act by the organization and its senior staff will be taken into account by the Tribunal when assessing corporate and personal liability;
• an organization’s best chance of resolving a complaint on terms that it finds satisfactory is to do so early in the process
• the employer may be required to make significant payments to the claimant along with public interest remedies that usually far exceed what might have been agreed to at an early stage in the process;
• the employer may have to compensate the claimant for losses that accumulate between the date the Code infringement;
• took place and the date a Tribunal orders a remedy, which could be years later.

Example: In early 2005, an employee complains that she was denied a promotion in 2004 and has been exposed to harassment at work. The employer knows there are problems but takes no action to address the concerns. Instead, it decides to wait for the outcome of a formal human rights complaint the woman has filed under the Code. After many failed internal job applications and continuing harassment, the person develops depression in 2006 and becomes unable to return to the workplace. The evidence shows that in the same time period, others who held the same position as the woman in 2004 received two promotions, even though they had less experience and fewer qualifications. In 2007, a tribunal finds that she experienced discrimination and orders compensation for the difference in salary from 2004 to 2007, significant monetary compensation to reflect the fact that the woman is no longer able to work, and public interest remedies such as training and policy development. The employer could have avoided this outcome by taking steps in 2005 to remove the discriminatory policy, prevent further harassment and work out a solution for the impact on the employee of both of these.

c) Apply internal policies and procedures

If a human rights issue arises, having pre-determined internal policies and procedures will help everyone involved by providing a structured and transparent process for resolving the concerns in a timely way. For more information about developing policies and procedures, see Section IV-1a – “Strategy to prevent and address human rights issues.” See also the Commission’s newly revised policy Guidelines on Developing Human Rights Policies and Procedures.

To ensure a just resolution of a human rights issue, it is extremely important that the people involved understand and are able to identify discrimination. Without this information, organizations remain open to liability for conducting a flawed investigation or failing to otherwise address discrimination. Refer to Section IV-12d) – “Apply human rights principles when investigating allegations” on relevant principles and common errors in investigations.

Example: A racialized employee with a disability alleges that he was subjected to inappropriate comments because of his race and disability. A manager investigates and writes a report indicating that the Code was not violated because none of the alleged comments explicitly referred to the employee’s race or disability and because he never objected. The manager concludes that there was no discrimination, because although there was evidence that one serious comment was made, harassment requires a course of comment or conduct. The outcome of this process would likely be flawed because the investigation did not correctly apply human rights principles. This manager was not aware that even one comment, if serious enough, can poison the work environment and that this is a violation of the Code.

In some cases, representatives of the organization may have enough expertise and objectivity to resolve the issues without outside help. In other cases, the organization will need to hire a third party with expertise in resolving or investigating human rights issues in the workplace to fully resolve an issue. This will depend on the complexity of the issue, the depth of the problem and the knowledge, skill and impartiality of the organization’s representatives. For example, a human resources manager normally involved in disciplinary decisions may not be seen as being objective and impartial in investigating the human rights allegations an employee has made against another manager.

Although there may be costs associated with hiring a third party to thoroughly investigate or otherwise resolve human rights issues in the workplace, such costs are a small price to pay for an early and satisfactory resolution of a complaint. Expert help can be extremely valuable where there are subtle allegations of discrimination.

Example: An employee complains to the company’s senior executive that he was disciplined more harshly than other employees because of his race, and then subjected to reprisal by his manager when he raised his concerns. This issue was raised in the past but the employee’s views were dismissed because it was assumed that the discipline was legitimate. The company decides to hire a human rights expert to investigate. The investigation shows that discipline is not being uniformly applied, and that this seems to have a systemic impact on racialized staff, a number of whom have been terminated from employment in the past year. There also seems to be a pattern of reprisals for raising human rights concerns and, more generally, a workplace culture where employees are directly and indirectly warned not to “rock the boat.”

Based on the expert’s recommendations, the organization removes the record of discipline from the employee’s file, puts in place standardized job descriptions and performance measures, a progressive performance management scheme, human rights policies, a formal process for raising concerns and a system to track the impact of these changes. The employee is satisfied with these measures and seeks no further action, and the employer is better able to attract and keep a diverse workforce.

d) Apply human rights principles when investigating allegations

There is a general obligation on people in positions of power within organizations to make sure they take allegations of discrimination seriously. The Human Rights Tribunal of Ontario has recognized that in the workplace, and other social areas, this includes the duty not to condone discriminatory acts and to investigate complaints of discrimination.^[80]

A human rights investigation must meet certain basic requirements of objectivity and a proper application of human rights principles. The Commission’s Guidelines on Developing Human Rights Policies and Procedures describes the requirements in more detail. See also Section IV 1a(iii) – “Procedures for resolving complaints,” which summarizes key parts of this policy. In the Commission’s experience, workplace investigations conducted by employers often include flaws that make it difficult for organizations to identify and address discrimination. This section highlights the key principles to keep in mind when conducting investigations.

Proof of intent to discriminate is not necessary for a finding of discrimination. The key question is whether there was a discriminatory result.^[81]

If a person is subjected to discriminatory treatment because he or she is perceived to be a member of a group protected by the Code, this behaviour is discriminatory even if that person is not actually a member of the protected group.

Even if there is a plausible explanation for a sequence of events, a solid investigation will include efforts to find out whether a Code ground also played a factor in the decisions or events. A key question in investigating allegations of unequal treatment, such as racial profiling, will be to determine whether the events would have unfolded differently if the person were not identified by a Code ground.

A finding of discrimination can be made even if discrimination is not the sole factor, or even the primary factor, in explaining how the employee was treated.^[82]

Example: A racialized employee is responsible for double-checking that the store is locked at the end of his evening shift. His co-worker, a more senior White person, holds the keys and is primarily responsible for locking the doors. The next morning, a manager discovers that the back door was left unlocked and the alarm not activated, which contravenes company procedures. This is the first disciplinary matter for both employees. The White employee is given a verbal warning while the racialized employee is given a written warning and a three-day unpaid suspension. The disparity in the discipline may be seen to be discriminatory, as it does not correspond to legitimate factors, such as their job duties, disciplinary records or employment status.

Where employees are disciplined or fired for insubordination, verbal outbursts or other inappropriate behaviour in the workplace, consider any evidence that such behaviour was linked to unresolved instances of harassment or discrimination.

Example: An employee refuses to work with one particular co-worker and alleges that this co-worker is sexually harassing her. These allegations are not addressed and instead, the employee is given a series of written warnings for her escalating conduct in relation to this co-worker. The last straw is when the employee threatens to have a family member come in and beat up the co-worker. An internal investigation confirms that these acts did occur, which contravened existing company policies, and a decision is made to fire the employee. The company fires the employee despite her protests that she was responding to escalating sexual harassment and a poisoned environment. The investigation and firing in this case are both flawed, because they have failed to examine and account for the discrimination endured by the employee.

In situations of harassment, evidence of discrimination may also be found through repeated patterns of similar behaviour on the part of the person accused of having violated the Code, serious inconsistencies in either party’s story or through careful and credible record-keeping of the person raising the allegations.

It is important not to discount an employee's version of events, even if there are no witnesses, because harassment often takes place out of the view of any potential witnesses.

Example: An employee alleges she was sexually harassed and subjected to sexual solicitation by her manager when they were scheduled to work alone. An investigation might include interviewing other employees about their own experiences and observations at times when they worked with the manager. While this information may be useful as background, as there were no witnesses around when the discrimination allegedly occurred, this would not be sufficient to resolve the issue.

In other cases, the discrimination may be subtle or systemic, and these forms of discrimination may be extremely hard for uninformed witnesses to identify. For many people, “discrimination” means the same as “harassment” and this may be reflected in witness statements they provide.

Example: A witness is asked if he has any knowledge of discrimination against the complainant, a Black man with a disability who recently immigrated to Canada. He says no, because he has never seen anyone call him a name because of his race or disability. This witness may not realize that the inflated job requirements in the recent job competition could be viewed as discriminatory barriers to access, that it was discriminatory for the manager to cancel the competition when he realized that the complainant was going to win the position, or that it was discriminatory for the man to have to work through his lunch break despite his medically supported accommodation needs.

Before relying on such witness statements, an employer should take steps to make sure that all employees know about and can identify the types of discrimination. A best practice is for this to be done for all employees through training and education provided as part of the human rights strategy and on an ongoing basis. See also Section III-2 – “What is discrimination?”

In an effective human rights investigation, the questions asked in witness interviews will draw out information relating to specific incidents and facts rather than general opinions about whether or not discrimination is thought to exist. Rather than asking, “Do you think Raj was discriminated against?” an investigator might provide some background information about the relevant human rights principles and then ask specific questions relating to the allegations raised by the complainant.

For example, an investigator inquiring into allegations of a failure to accommodate, might first tell employee witnesses that under the Code the employer is expected to provide accommodation to the point of undue hardship for needs relating to family status, religion, disability and other grounds; that accommodation should be individualized; and that accommodation could include things like paid time off, extended breaks or changes to work duties. The investigator might then ask the witness questions like:

• Have you ever requested accommodation for a Code need?
• How did the employer deal with your request?
• Do you know of other employees who requested accommodation?
• How were they treated?

Even where all employees are informed about the types of discrimination, witness evidence may not always help determine if discrimination exists. The fact that another employee did not experience or is unable to identify discrimination may be irrelevant if the other employee does not share all of the Code grounds identified by the complainant. Persons identified by a particular Code ground, or combination of grounds and other factors, may face repeated incidents of discrimination and are attuned to the dynamics, insinuations and assumptions that may be at play, in a way that other people are not.

Example: A 60-year-old Aboriginal employee with a vision impairment alleges the existence of systemic barriers including a non-inclusive organizational culture, strict rules about computer use and a failure to accommodate. An investigation is conducted in which all the racialized staff are asked whether they have experienced discrimination because of race, and all staff with disabilities are questioned about their experiences. All these witnesses indicate that they have not observed discrimination nor have they personally experienced discriminatory treatment. This type of witness evidence is of limited relevance to the specific allegations being investigated in this case. Given that none of the witnesses share the same characteristics as the person alleging discrimination, this witness evidence does not help determine whether the complainant, as an Aboriginal person with a disability, was discriminated against.

Unequal treatment can be assessed by comparing the experiences of individuals identified by a particular Code ground against those of an appropriate comparator group of persons in similar situations. However, the fact that not all people in a group identified by an enumerated ground are subjected to the same level of poor treatment should not necessarily discourage a finding of differential treatment.^[83]

Example: Two racialized single women in their mid-thirties work with a senior executive. When one woman files a complaint alleging sexual harassment, the president investigates. The fact that the other woman, who shares the same Code grounds, has not also experienced sexual harassment does not mean that the complaint is unfounded.

It is important to make sure the following common myths about racism do not interfere with the impartial investigation of allegations of racial discrimination:

• people in Canada are “colour blind” and do not even notice race
• racism does not exist in Canada
• racialized people are less credible and their assertions need to be corroborated or more carefully investigated
• racialized people are too sensitive, are overreacting or “have a chip on their shoulder”
• racialized people are to blame for the racism or racial discrimination
• if a racialized person has been treated acceptably in the past, then discriminatory treatment cannot take place in the future (for example, “I hired him, so obviously I would not discriminate against him”).

An investigator should not assume that employees who both share the same racial or ethnic identity could not be harassing or discriminating against each other.

Example: Two Egyptian employees are in a conflict. One employee, a Christian woman who has been in Canada for 10 years, claims that she is being harassed by the other, a Muslim man who recently immigrated from Egypt. The employer declines to investigate on the basis that there could not be discrimination because they are both Egyptian and that this must just be a dispute about “back-home politics.” The employer has failed in its duty.

Similarly, a complaint against a racialized manager or supervisor should be investigated and dealt with as thoroughly as would be done if the manager were White.

Example: A female manager is harder on the Black female staff than other employees. One of the employees tries to submit an internal complaint of discrimination based on race and sex. She is told that discrimination could not exist because her manager is an Asian woman, who knows personally how it is to experience discrimination.

i) Common errors in investigations:

• Not identifying discrimination because of a lack of awareness of the relevant human rights principles before starting the investigation. For example, an investigation may wrongly conclude that discrimination did not occur because there was no intent
• Not being impartial or having pre-conceived ideas about what the outcome of the investigation will be. For example, an investigation that seeks to justify a termination as non-discriminatory, despite evidence to the contrary, will be seen to be flawed.
• Discounting the perspective of the person who has raised the allegations because of an assumption that they must be lying, despite the absence of a reasonable basis for such an assumption. An example is relying on the myth that racialized people cannot be believed without corroboration, while the White witnesses’ evidence is taken as the truth.
• Relying on irrelevant factors to undermine the credibility of the person who has raised the allegations. For example:
  • taking into account the past sexual history of a woman who has alleged sexual harassment
  • viewing racialized witnesses as less credible and in need of corroboration compared to White witnesses.
• Being overly sympathetic to the feelings of “victimization” and “impact on reputation” raised by the person accused of discriminatory conduct. This may lead to a failure to appropriately address discriminatory conduct.
• Concluding that a person was not harassed because they appeared to be going along with or participating in the comments or conduct. Many people who are experiencing harassment do not object because they are in a vulnerable situation.
• Concluding that a racialized person was equally responsible in an altercation, without considering whether that person was objecting to discrimination because of race or another ground. Some people may respond with outbursts or become angry and emotional in response to discrimination.
• Starting a full investigation based on preliminary evidence of discrimination, and yet failing to act to prevent further discrimination until the conclusion of the investigation. There is a duty to act in the short term to address any concerns identified in the investigation, along with longer-term initiatives.
• Excluding the person who has raised the allegations from the workplace during the investigation, with or without pay. This may be seen to be a reprisal.
• Concluding that there was no sexual harassment because a person was a willing participant or had consented to sexual activity in the past. There must be evidence of consent to the specific acts that are complained about.
• Preparing identical witness statements denying the existence of discrimination and requiring employees to sign them – statements provided under this kind of duress will be closely scrutinized and likely given little weight should the case be heard by a tribunal or court.

e) Considerations when settling complaints internally

When complaints are resolved internally, organizations should take care to make sure that the settlement agreement and any release signed are reasonable, understood by the parties and do not reflect any power imbalance. Employees should be given an opportunity to get legal advice before signing any settlement or release. A settlement agreement should reasonably reflect an appreciation of the evidence in support of an employee’s allegations, the impact of the infringement on the complainant and an understanding of potential remedies if the Tribunal upholds the claim.

Example: An employee raises allegations of sexual solicitation and harassment and has a stack of e-mails as proof. The solution offered is for the employee to be moved to another work station and to cease working overtime so she will not be alone with her boss. The employee protests but cannot afford to lose any days of pay, so she signs the minutes of settlement and a release. This settlement would prove to be problematic for the organization if a human rights claim is later filed.

i) Practical reasons to resolve complaints early:

In the Commission’s experience, there are many cases that give rise to costly litigation because an employer was not willing to provide any form of redress to an employee who has most likely experienced discrimination in the workplace and is seeking modest compensation. Many employers have expressed the feeling that an employee’s requests for compensation are equivalent to “black-mail.” Also, employers often say that as a matter of “principle” they will not pay any amount of money to an employee based on a violation of human rights, because this would open the “floodgates” to a stream of human rights claims that have no merit.

While this is an understandable position, it is not normally in an employer’s interests to take this approach. In most cases, the costs of such posturing far exceed the benefits. If a human rights claim is resolved early on, there is usually a recognition by both sides that neither party knows whether or not the claim would ultimately be successful. Thus, a claimant may accept much less than he or she would otherwise be entitled to. The costs of defending against a claim all the way to the end of proceedings before a court or tribunal may be major if the employer uses lawyers.

On the other hand, employers who represent themselves may have difficulty making out a defence to the allegations and end up having significant orders made against them. Also, if a claimant is finally successful, he or she would normally be entitled to interest on any monetary amount dating back to the date the human rights issue arose. After a number of years, this could amount to thousands of dollars. The employer could also be ordered to make serious changes to their policies and procedures.

Example: An internal investigation shows that as a result of discriminatory treatment at work, an employee likely was unfairly disciplined, was demoted for three months and then resigned to accept a job elsewhere. To resolve the matter without litigation, the employee asks to be compensated for a portion of the income she lost while demoted and to have the letters of warning in her personnel file removed. Despite the evidence in support of the employee’s claims, the employer agrees to provide the complainant only with a letter confirming employment. The employer refuses to make a monetary payment, on principle.

The employee declines this offer, starts and is successful in litigation and an order is made a number of years later. The employer has to pay general damages of $10,000, special damages of $5,000 and interest on the $15,000, and has to put in place a new disciplinary process and human rights policies and procedures. On top of this, the employer pays $30,000 to its lawyer for countless hours to prepare for the hearing.

Along with the monetary costs of litigation and the impact on the company and its reputation, there are personal and social costs for respondents as a result of outstanding human rights claims. Many respondents, including employers, have told the Commission about the negative impact and stress of human rights allegations and lengthy litigation on their reputation, ability to work and family life.

ii) Base settlements on human rights remedies that may be available:

Any remedy mutually agreed on by the parties should take into account the actual losses experienced by the claimant, remedies available under human rights legislation and the interests of all the parties in a fair and speedy resolution of the matter.

The principle behind human rights remedies is to put the claimant in the position they would have been in had they not been exposed to discrimination, as long as they have taken steps to minimize their losses (this is called “mitigation of damages”). A further goal of human rights remedies is to protect the public interest and make sure that measures are put in place to prevent further discrimination. If a claimant is successful in proving discrimination and entitlement to a remedy, the Human Rights Tribunal of Ontario could order the company, and any people personally named in the complaint, to do any of the following:

• pay monetary compensation to the claimant for loss of earnings or job opportunities (if the claimant can prove that he or she acted to minimize losses)
• pay interest to the claimant on the money awarded dating back to the date the Code was violated
• pay damages to the claimant for the mental anguish suffered because of the violation
• pay general damages to the claimant for the infringement of the right and impact on his or her dignity and self-worth
• put the claimant on a paid leave of absence until compliance with the Tribunal’s order has been achieved
• promote or re-instate the claimant to the position he or she would have held except for the discrimination
• change policies that have been found to be discriminatory or have a discriminatory impact
• put in place training initiatives (this may include requirements to hire a consultant, involve the claimant in designing such training and/or make such sessions mandatory for employees)
• set up a process for resolving internal human rights complaints. This could include a requirement to have complaints of workplace harassment and discrimination investigated or mediated by an external third party
• develop and introduce effective anti-discrimination and harassment policies. An employer may be required to hire a consultant to help with this. Employers could also have to include compliance with such policies as an element of the performance appraisals for supervisors and managers
• monitor of compliance with the terms of an order or settlement (for example, reporting to the Tribunal or a third party designated by the Tribunal) on an ongoing basis
• make available the Tribunal’s decision, or a summary of it, in the workplace and bring it to the attention of employees.

f) Considerations when asking an employee to sign a release

i) What is a release?

A release is a form of contract in which a person agrees not to make any further claims against the other person. The courts have said that for such a contract to exist, the parties must share an understanding that no further claim will be made, there must be “consideration” – something of value that is given up in exchange for the right – and the terms of the agreement must be carried out by both parties. If any of these three elements is missing, the contract cannot be enforced.

Example: An employer says that an employee who was fired has to sign a release to get money that she is owed under the Employment Standards Act, such as severance payments and vacation pay. The element of consideration is missing because the employee is already entitled to the money that the employer will give her for signing the release. Thus, even if she signs the release to get the money, no contract exists and the release has no effect.

ii) Contracting out versus settling a complaint:

Under the existing Code, section 32 guarantees a right to file a complaint to any person who believes that their rights under the Code have been infringed. Similarly, section 34(1) of the recently amended Code provides that a person may apply to the Human Rights Tribunal of Ontario for a remedial order under section 45.2. This protection means that nobody can be required to “contract out” of his or her human rights and their right to enforce them. The Supreme Court has clearly stated that human rights legislation is a “floor beneath which the parties cannot contract out” and that any contract having this effect is void.^[84]

On the other hand, it is permissible to settle a human rights issue, concern, claim or complaint. To do so, the human rights at stake must be known to both parties and something of value must be received by the employee, in recognition of those rights. The “something” that is received is called “consideration” in legal terms, and could be money or something else of value such as a letter of reference or an apology.

Example: On advising an employee that his employment will be terminated, effective immediately, the employer indicates that severance pay and termination pay will be withheld unless the employee signs a full and final release of all outstanding claims, including human rights complaints. The employee signs the forms, although he does not understand the “legalese,” and leaves the office in a daze wondering if he should have mentioned that he was in the process of filing a human rights complaint. This kind of situation would likely be viewed as an impermissible contracting out of human rights protections.

Example: On termination of employment, an employee and employer meet to negotiate a settlement. Having received legal advice, the employee indicates that there are no human rights issues or concerns and a settlement is negotiated on that basis. The settlement and signing of a release in this situation would not be considered to be contracting out.

Example: An employee and employer negotiate a settlement agreement. The intent of both parties is that the settlement will conclude ongoing proceedings under both the Employment Standards Act and the Code and this is clearly reflected in the terms of the settlement. The parties are aware of the full extent of the claims and entitlements under both Acts. The employee, having received independent legal advice, signs a release indicating that the employer will be free from further liability on the basis of the agreement reached in good faith between the parties. This would likely be viewed as a settlement and not contracting out.

iii) Tips for employers preparing and asking employees to sign a release:

On the issue of contracting out versus settlement, the Commission provides the following tips for employers involved in preparing a release of a human rights claim for signature by an employee or former employee:

• An employer should, at the time of termination, ask the employee, preferably in writing, whether there are any outstanding human rights issues or concerns.
• It is important to give the employee a reasonable opportunity to consult with independent counsel or an advisor before having to answer this question and before signing a release
• Where the answer is "yes," the employer should ask for details, to fairly assess what would be a reasonable offer for settling the human rights issues.
• Where the answer is "yes," it is best to also prepare minutes of settlement, along with the release, which will expressly deal with the human rights issue.
• Also, where the answer is "yes," the text of the standard form of release should be altered to include a clause that separately recognizes that there is a human rights issue, complaint or claim that has been fully and finally resolved between the parties.
• Where the answer is "no," and the employee has got or had the opportunity to get independent advice, it is appropriate for the release to state that the employee has obtained independent legal advice, is aware of his or her rights under the Code, and warrants that he or she is not asserting such rights or advancing any human rights claim or complaint.

Appendix G includes more tips for employees and employers and sample proposed text for a release of a human rights claim.

iv) Section 34(1)(b) and releases:

Until recently, under the Code (which came into effect on June 30, 2008), the Commission had the discretion to not deal with complaints under section 34(1)(b) if the complaint was made in bad faith. Those provisions were affected by recent Code amendments. Under the amended Code, section 34(11) bars an application where the matter has been settled. See also Section IV-12h) – “Dealing with formal human rights complaints or applications”. The discussion below relates to the Commission’s existing practices in analyzing requests under section 34 of the existing Code, which will continue to take place for six months after June 30, 2008. This discussion is also based on general principles that apply when analyzing if a settlement contravenes human rights principles.

Under section 34 of the former Code, respondents, such as employers, could assert that complainants were acting in bad faith where they have signed a release and later filed or continued with a human rights claim under the Code.

In considering such claims, the Commission looked at the circumstances surrounding the signing of the release, and considered whether there was an intention to mislead on the part of the complainant. The Commission applied the following four factors in deciding whether a release actually reflects a settlement of a human rights complaint, so that proceeding with a human rights complaint would amount to bad faith:^[85]

1. Did the complainant understand the significance of the release? This will usually turn on whether or not they were given enough time, and enough opportunity to get advice.
2. Did the complainant receive compensation for the alleged breach of the human rights issue? If, for example, the complainant only received an amount similar to what they would have been entitled to under statute (for example, severance and termination pay under the Employment Standards Act), then it may be implied that they did not also receive compensation for the human rights violation.
3. Was the complainant subject to such significant economic pressure that his or her consent was negated due to duress?
4. Was the complainant subject to such significant psychological or emotional pressure that his or her consent was negated due to duress?

Refer to the Commission’s Guide to Releases with Respect to Human Rights Complaints for more information on settlements and releases and the former application of section 34(1)(b) by the Commission.

h) Dealing with formal human rights complaints or applications

The section “Old system” describes the recently existing complaint-handling processes at the Commission and the Human Rights Tribunal of Ontario (“Tribunal”). These measures were in place for all complaints in the system until the transitional provisions set out in the recently amended Code took effect on June 30, 2008. For the ensuing six months, the measures described below will apply to complaints filed with the Commission on or before June 30, 2008 that continue to be in the Commission’s caseload.

The section “Amended system” describes the framework set out in the amended Code for a substantially revised human rights system that includes the three organizations provided for in the amended legislation: the Commission, the Tribunal and the Human Rights Legal Support Centre. At the time of publication, the exact details of how the human rights system will function during and after the transition are not known. See Appendix C for the contact information of the Ontario Human Rights Commission, Human Rights Tribunal of Ontario and the Human Rights Legal Support Centre.

i) Old system:

The old system provided for all complaints to be handled by two organizations: the Commission and the Tribunal.

The Ontario Human Rights Commission: The Commission’s complaint handling process is described in detail in its Internal Guide for Processing Human Rights Complaints, which is available on the Commission’s website at www.ohrc.on.ca.

All human rights complaints must be filed with the Commission within six months of the date of the last infringement of rights. If a person feels his or her rights under the Code have been infringed, he or she may contact the Commission. A Commission staff person will advise as to whether the issue is covered by the Code.

The Commission is neutral and does not take sides in the complaint. Commission staff will provide information to both parties about the Code and complaint procedure. However, if either party needs legal advice, they should contact a lawyer.

The Code does not require the Commission to deal with all complaints. Under section 34, the respondent can ask the Commission not to deal with the complaint or the Commission will choose to not become involved if it is of the opinion that the complaint:

• could be more appropriately dealt with under another piece of legislation
• is trivial, frivolous, vexatious or made in bad faith
• is not within its jurisdiction
• is based on occurrences that are more than six months old (unless the Commission is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay).

Unless the Commission decides not to deal with the complaint, Commission staff will work with both parties to try to settle the dispute if possible. Voluntary and confidential mediation services are offered to both parties. If mediation is unsuccessful, or one of the parties declines to take part, the next step is for the parties to provide the Commission with documents in response to a production request and attend a Fact Finding Meeting. In some cases, the mediation and Fact Finding Meeting may be combined.

The Fact Finding Meeting is part of the investigation to gather evidence and help the parties to resolve the complaint through conciliation. If the case is still not resolved, the Investigation Officer completes the investigation and gives a “case analysis report” or a “disclosure letter” to the parties. These documents set out the relevant evidence, analysis and a recommendation to refer the complaint to the Tribunal for a hearing or not. The parties will then have an opportunity to make submissions to the case analysis report or disclosure letter and the Commission (the appointed Commissioners) will consider these when it decides whether to send the case on to the Tribunal. A copy of the Commission’s decision in writing is forwarded to both the respondent and the complainant.

If a case is not referred to the Tribunal, the complainant can ask the Commission to reconsider its decision through an application for reconsideration within 15 days of the date that appears on the decision letter. The respondent has an opportunity to comment on the complainant’s application. In complex cases, a reconsideration report is prepared and the respondent would also have an opportunity to provide submissions in response to the report. The Commissioners make the final decision on whether to reverse the Commission’s original decision.

If the case is referred to a hearing before the Tribunal, the Commission takes carriage of the complaint. This means that the Commission will attempt to prove discrimination and seek a remedy in the public interest. A complainant may choose to rely on the Commission’s advocacy at this stage or they may get separate legal counsel.

Human Rights Tribunal of Ontario: The Tribunal is the body that hears evidence and decides whether discrimination occurred and what remedies are needed to address the discrimination. The Tribunal is independent from the Commission. The complainant, respondent(s) and the Commission are parties in Tribunal proceedings. The hearing is a public proceeding.

Before starting a hearing, parties have a chance to resolve the matter through a mediation held by a Tribunal adjudicator. If there is no resolution, the case moves forward to a hearing. In a Tribunal hearing, a complainant is expected to prove that there is a case of discrimination. The respondent must answer the complainant’s case by showing a believable non-discriminatory explanation for the actions taken. If the respondent can do this, the complainant is then required to “poke a hole” in the respondent’s case, for example by showing that the explanation is false or is just a pretext to cover the discrimination.

Overall, the onus is on the complainant to prove that more likely than not discrimination occurred and that he or she is entitled to remedies. The legal name of the burden on the complainant is the “balance of probabilities.” This is a much lower standard than in a criminal setting, where the Crown must prove the case “beyond a reasonable doubt.”

If the Tribunal finds that discrimination took place, it can order a wide range of remedies. See also Section IV-12e(ii) – “Base settlements on human rights remedies that may be available” for more information about remedies. The general principle behind Tribunal orders under the Code is to restore the complainant to how she or he would have been had the Code not been violated (individual remedies) and ensure full compliance with the Code in the future (public interest remedies). An order made by the Tribunal is legally binding, subject to any appeals or judicial reviews – both of which are possible in the current system.

ii) Amended system:

Bill 107, An Act to Amend the Human Rights Code was passed in December 2006. Most significantly, the amended Code provides that human rights claims be filed directly with the Human Rights Tribunal of Ontario (“Tribunal”) instead of with the Ontario Human Rights Commission as of June 30, 2008. The amended Code also creates a new organization, the Human Rights Legal Support Centre, to provide legal support to complainants. The following discussion highlights the legislative framework behind the new system with respect to the powers of each of the organizations, how claims will be processed and transition measures.

The Ontario Human Rights Commission: The Commission received and processed new complaints until June 30, 2008, after which time applications are filed directly with the Tribunal. After that date, the Commission will no longer accept new claims. The Commission will continue to process existing complaints for a further six months.

Until the end of December 2008, the Commission will continue to mediate, investigate, conciliate and make decisions under sections 34, 36 and 37 as is described in more detail in the section on the old system above. At any point in this six-month period, a complainant can make a request to abandon the complaint and make an application to the Tribunal in an expedited process [(subsection 53(3)]. Under subsection 53(5), complainants have a further six months to apply to the Tribunal with respect to the subject matter of the complaint, if the complaint has not been settled, withdrawn or otherwise dealt with. Tribunal Rules of Practice, dated January 31, 2008, apply to all complaints referred to the Tribunal by the Commission.

At the end of the first six-month period, the Commission will no longer mediate, investigate, conciliate or make decisions under sections 34, 36 and 37.

The amended Code provides that a Commission-approved policy may be considered by the Tribunal and that it shall consider such a policy if a party or an intervenor requests that this be done (section 45.5). The Commission may intervene or take part in particular cases of interest (section 37) and can initiate inquiries or take other actions in situations of discrimination that come to its attention (section 29). This means that employers will need to continue to be aware of and try to comply with Commission policies, even though the Commission will no longer be responsible for handling individual human rights complaints.

Human Rights Tribunal of Ontario: As of June 30, 2008, all new human rights claims are known as “applications” and filed directly with the Human Rights Tribunal of Ontario (“Tribunal”). The Tribunal’s Rules of Practice, effective January 31, 2008, apply to all complaints referred to the Tribunal by the Commission.

The final version of the Rules of Procedure, proposed by the Tribunal and consulted on between February 1 and March 14, 2008, will apply to all applications filed directly with the Tribunal after June 30, 2008.

It is important to note that the amendments say that an “application” may be made to the Tribunal within one year of the date of the incident the application relates to. Late applications may be accepted by the Tribunal if it is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The amendments also provide that applications may be made by a person or organization on behalf of another person with their consent [section 34(5)].

The amended Code bans applications if a civil proceeding seeking the same remedies is outstanding, if a court has finally determined whether a right has been infringed, or if the matter has been settled. Notably, the Tribunal is not allowed to finally dispose of an application that is within its jurisdiction without giving the parties a chance to make oral submissions in accordance with its rules and providing written reasons [section 43(2.2)].

Under the amended Code, the Tribunal is permitted to simplify its practices and procedures in an effort to resolve matters fairly and quickly. The Tribunal also has the ability to create rules that allow it to control its proceedings (for example, by narrowing issues and limiting evidence and submissions to those issues).

Contact the Human Rights Tribunal of Ontario directly for more information about the rules that may apply to applications and hearings in the amended system. See also Part IV of the Code, online at www.e-laws.gov.on.ca.

The Human Rights Legal Support Centre: The amendments provide for a Human Rights Legal Support Centre. The Centre will provide advice and assistance, legal and otherwise, on the infringement of rights set out in Part I of the Code. It will also provide legal services related to:

• making applications to the Tribunal under Part IV
• proceedings before the Tribunal under Part IV
• applications for judicial review arising from Tribunal proceedings
• stated case proceedings
• enforcing Tribunal orders.

For more information, refer to Part IV.1 of the Code or e-mail HRLSC@Ontario.ca.

i) Dealing with discrimination claims in courts and administrative tribunals

Beyond the process as set out above for handling human rights claims by the Commission and/or the Tribunal, there are some circumstances where allegations of discrimination may be raised before courts and other administrative tribunals.

i) Old system:

Administrative tribunals in Ontario have the jurisdiction to deal with human rights issues, unless they have explicitly been granted power by the legislature to decline to hear them. A recent Supreme Court of Canada decision has clarified that administrative tribunals may decline to apply parts of their defining legislation that are inconsistent with the Code. ^[86]

Although a breach of the Code cannot be the sole basis for a claim in the courts, a claim for constructive or wrongful dismissal can be based on allegations of discrimination.^[87] In some cases, significant monetary amounts might be awarded for punitive damages in wrongful dismissal cases where there have been violations of the Code. For example, in Keays v. Honda Canada Inc,^[88] the trial judge found harassment because of disability leading to a termination of employment and ordered punitive damages of $500,000. This amount was reduced to $100,000 by the Court of Appeal. Both parties further appealed to the Supreme Court of Canada, which held on the facts that there had been no discrimination and no cause for punitive damages.

ii) The amended system:

The amendments to the Code have expanded on a trend in case law where courts order remedies for human rights violations in the context of litigating other matters. Subsection 46.1(1) of the Code empowers a court to award monetary damages and other human rights remedies available under the Code if it finds that a violation of the Code has taken place. Subsection 46.1(2) confirms that a human rights violation still cannot be the sole basis for initiating a claim in the courts. In other words, this section is not creating a new “cause of action” or ground for litigation before the courts.

These amendments clarify that an employee does not need to file an application with the Human Rights Tribunal of Ontario to get human rights remedies, if his or her human rights are infringed in the course of employment. Instead, human rights remedies can be granted by a court along with other employment law remedies such as termination pay, severance, or pay in lieu of a notice period.

Example: An employee is disciplined, subjected to harassment and fired because of age and disability. The employee starts a court action alleging that he was wrongfully dismissed and raises his allegations of discrimination in the context of that action. The employee is successful and receives damages both for the lack of notice and also to compensate for his human rights being violated.

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^[77] See the Verdict of Coroner’s Jury regarding the homicide of Lori Dupont by Marc Daniel, online: www.mcscs.jus.gov.on.ca/english/pub_safety/office_coroner/verdicts_and_recs.html. Also note that a private member’s bill, Bill 29, an Act to amend the Occupational Health and Safety Act to protect workers from harassment and violence in the workplace received first reading on December 13, 2007.
^[78] For more information about mobbing and bullying, see Mental Health Works, “Cubicle Bullies: “Mobbing at Work,” online: www.mentalhealthworks.ca/articles/mobbing_at_work.asp.
^[79] Laskowska, supra note 26.
^[80] See for example, Laskowska, supra note 26.
^[81] Robichaud v. Brennan (1987), 8 C.H.R.R. D/4326 (S.C.C.); Ontario (Human Rights Comm.) v. Simpson-Sears Ltd. (1985), 7 C.H.R.R. D/3012 (S.C.C.); Nishimura v. Ontario (Human Rights Comm.) (1989), 1 C.H.R.R. D/246 (Ont. Div. Ct.).
^[82] See Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789. and I.U.E.C. Local 50 v. Otis Canada Inc., 2004 CarswellOnt 6340, 112 C.L.R.B.R. (2d) 252, [2004] O.L.R.B. Rep 1174, 135 L.A.C. (4th) 193 (Ont. L.R.B.).
^[83] Martin v. Nova Scotia (Workers’ Compensation Board), [2003] 2 S.C.R. 504.
^[84] Heerspink, supra note 4. at 158.
^[85] See Pritchard v. Ontario Human Rights Commission (1999), 45 O.R. (3d) 97 (Div. Ct.).
^[86] Tranchemontagne, supra note 5.
^[87] See for example L’Attiboudeaire v. Royal Bank (1996), 88 O.A.C. 70 (C.A.). In addition, section 46.1 of the Human Rights Code now specifically permits a party to allege a violation of the Code in a claim for damages where that allegation is combined with another claim.
^[88] Keays, supra note 52 (overturned on appeal to the Supreme Court of Canada).