The ultimate responsibility for maintaining an environment free from discrimination and harassment rests with employers, housing providers, service providers and other responsible parties covered by the Code. It is not acceptable to choose to stay unaware of discrimination or harassment of a person with a disability, whether or not a human rights claim has been made.
Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to breaches of the Code. Employers, housing providers, service providers and other responsible parties must make sure they maintain accessible, inclusive, discrimination-free and harassment-free environments that respect human rights.
Employers, housing providers, service providers and other responsible parties violate the Code where they directly or indirectly, intentionally or unintentionally infringe the Code, or where they authorize, condone or adopt behaviour that is contrary to the Code.
Under section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as vicarious liability. Simply put, it is the OHRC’s position that an organization is responsible for discrimination that occurs through the acts of its employees or agents, whether or not it had any knowledge of, participation in, or control over these actions.
Example: Staff in a group home refuse to investigate a tenant’s allegation that another tenant is discriminating against her based on her sex and disability. The organization operating the group home would be responsible and potentially liable for condoning discrimination and not responding to this allegation.
Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, vicarious liability is restored.[286] Further, in these cases the “organic theory of corporate liability” may apply. This means that an organization may be liable for acts of harassment carried out by its employees if it can be proven that management was aware of the harassment, or the harasser is shown to be part of the management or “directing mind” of the organization.[287]
The decisions, acts or omissions of an employee will engage the liability of the organization in harassment cases where:
- the employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that is contrary to the Code, or
- the employee who is part of the “directing mind” does not respond adequately
to harassment or inappropriate behaviour he or she is aware of, or ought reasonably to be aware of.
In general, managers and central decision-makers in an organization are part of the “directing mind.” In employment, employees with only supervisory authority may also be part of the “directing mind” if they function, or are seen to function, as representatives of the organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for the guidance of others. For example, a member of the bargaining unit who is a lead hand may be considered to be part of the “directing mind” of an organization.
There is also a clear human rights duty not to condone or further a discriminatory act that has already happened. To do so would extend or continue the life of the initial discriminatory act. This duty extends to people who, while not the main actors, are drawn into a discriminatory situation through contractual relations or in other ways.[288]
Depending on the circumstances, employers, housing providers, service providers and other responsible parties may be held liable for failing to respond to the actions of third parties (such as service users or customers, contractors, etc.) who engage in discriminatory or harassing behaviour.[289]
Multiple organizations may be held jointly liable where they all contribute to discrimination. For example, a union may be held jointly liable with an employer where it has contributed towards discriminatory workplace policies or actions – for example, by negotiating discriminatory terms in a collective agreement, or blocking an appropriate accommodation, or failing to take steps to address a harassing or poisoned workplace environment.[290]
Human rights decision-makers often find organizations liable, and assess damages, based on the organization’s failure to respond appropriately to address discrimination and harassment. [291]
Example: A man with cerebral palsy alleged that he was subjected on two occasions to insults and negative treatment by staff and other customers at a bar in his neighbourhood who believed he was drunk. He brought the issue to the attention of the bar manager and explained that his disability caused him to slur his words, regardless of how much alcohol he had consumed. The manager told him it wasn’t “a big deal” and that he should “lighten up” about it. The situation worsened and the man stopped going to the bar. By not investigating and addressing the man’s complaints of harassment, the bar failed to uphold its legal obligations and could be liable under the Code.
An organization may respond to complaints about individual instances of discrimination or harassment, but they may still be found to have not responded appropriately if the underlying problem is not resolved. There may be a poisoned environment, or an organizational culture that condones discrimination, despite punishing the individual perpetrators. In these cases, organizations must take further steps, such as training and education, to better address the problem.
Some things to consider when deciding whether an organization has met its duty to respond to a human rights claim include:
- procedures in place at the time to deal with discrimination and harassment
- the promptness of the organization’s response to the complaint
- how seriously the complaint was treated
- resources made available to deal with the complaint
- whether the organization provided a healthy environment for the person
who complained - how well the action taken was communicated to the person who complained.[292]
The following steps are some ways that organizations can prevent and eliminate discrimination against people with disabilities in their organizations. Organizations should develop strategies to prevent discrimination based on all Code grounds, but should give specific consideration to people with disabilities.
A complete strategy to prevent and address human rights issues should include:
- a barrier prevention, review and removal plan
- anti-harassment and anti-discrimination policies
- an education and training program
- an internal complaints procedure
- an accommodation policy and procedure.
In its publication entitled, A policy primer: Guide to developing human rights policies and procedures,[293] the OHRC provides more information to help organizations meet their human rights obligations and take proactive steps to make sure their environments are free from discrimination and harassment.
Here are some things organizations should consider with respect to people with disabilities when implementing barrier prevention, review and removal plans, developing human rights policies and procedures, and in education and training programs.
11.1 Barrier prevention and removal
Ensuring full accessibility means making sure that barriers to employment, services and housing for people with disabilities are not embedded into new organizations, facilities, services or programs. It also means identifying and removing barriers where they already exist. A barrier removal process should include reviewing an organization’s physical accessibility, policies, practices, decision-making processes and overall culture.
Under the Accessibility for Ontarians with Disabilities Act, employers, service providers, many housing providers and the government are required to comply with accessibility standards for people with disabilities. Part of complying with the standards means that government, large organizations and designated public sector organizations have to develop accessibility plans to prevent and remove barriers to accessibility.
When designing inclusively and removing barriers, organizations should consult with people with disabilities to gain a greater understanding of people’s diverse needs, and how to most effectively meet them. It is important that people with disabilities have the opportunity to provide input into information-gathering processes and are consulted about the barriers that affect them.
Example: A large employer reviews its operations to identify barriers for people with disabilities. As part of this, it conducts a written survey and follow-up interviews of employees and customers to solicit their feedback on how well the company is doing on specific accessibility issues and areas where it could improve.
When identifying barriers, organizations should take into account that discrimination based on disability may intersect with discrimination based on other Code grounds, including race, sex, sexual orientation, etc. As well, someone may experience different barriers based on their level of income. Compared to other service users, someone who has a physical disability, has low income, is a newcomer to Canada and speaks English as a second language may experience unique barriers when trying to access a service. When collecting information about barriers, organizations should include ways for people to tell the organization about all of the circumstances that may prevent them from taking part equally.
11.2 Data collection and monitoring
Collecting data – both quantitative and qualitative – can help an organization understand the barriers that exist, and identify and address concerns that may lead to systemic discrimination.[294] Data collection and analysis should be undertaken where an organization or institution has or ought to have reason to believe that discrimination, systemic barriers or the perpetuation of historical disadvantage may potentially exist.
Some methods to do this include surveying employees, service users or tenants (in larger housing organizations), doing interviews, focus groups or asking for verbal or written feedback.
Organizations should keep in mind that people with disabilities may fear that their private information will be shared unnecessarily with others, with negative consequences. It helps to make surveys or data collection anonymous and ensure people know how their information will be used and how it will be kept private.
Information about barriers to accessibility, discrimination and harassment can be monitored by collecting periodic data over time. Data collection can also help an organization understand if its efforts to combat discrimination, such as putting a special program in place, are helping or need to be modified.
11.3 Developing human rights policies and procedures
Developing anti-harassment and anti-discrimination policies, an internal human rights procedure, and an accommodation policy and procedure are part of an overall human rights strategy, but these should also be developed with the needs of people with disabilities in mind.[295]
For example, in procedures dealing with human rights concerns or accommodation requests, the organization should outline how it will maintain the confidentiality of people’s private medical information.
Under the Occupational Health and Safety Act, all workplaces in Ontario are expected to develop harassment policies and review these at least annually. Harassment policies should explicitly include harassment based on a disability. The AODA requires that obligated organizations develop, implement and maintain accommodation policies that govern how the organization will achieve accessibility.
Lack of knowledge about one’s rights and fear of reprisal are factors that may contribute to people not knowing how to complain or avoiding making a complaint, even if they feel their human rights are being violated. Organizations should make sure they provide adequate information and training about complaint procedures, and clearly outline that people will not experience reprisal for making a complaint.[296]
Example: A college develops a pamphlet outlining its human rights complaint procedure. In addition to putting the pamphlet online, it consults with disability groups to explore other ways to achieve maximum accessibility. It distributes the pamphlet in its application and acceptance packages and makes it available at its office for students with disabilities.
11.4 Education and training
Education and training on disability issues and human rights is essential to developing a “human rights culture” within an organization that supports the values and principles of the Code. Without an understanding of human rights issues relating to people with disabilities, and support for human rights principles, human rights policies and procedures will be less likely to succeed.
Under the AODA’s “Integrated Accessibility Standard,” organizations also have a duty to train their employees and others on human rights and accessibility. Every obligated organization[297] must make sure that training is given to employees, volunteers, people who help develop the organization’s policies, and others who provide goods, services and facilities on behalf of the organization. The training must be provided on the requirements of the accessibility standard and on the Ontario Human Rights Code as
it pertains to people with disabilities.[298]
Education on human rights works best when accompanied by a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise.
Programs that focus on education, raising awareness and changing attitudes should also include evaluating whether behavioural change has resulted in the short and long term and if discriminatory barriers in the organization or system have changed as a result.
In addition to training that is required by the AODA, the following items could be integrated into a human rights training program on disability issues:
- the types of barriers that people with disabilities face in housing, employment
and services (e.g. structural impediments, stereotypes) - the rights of people with disabilities under the Code
- the human rights system in Ontario, including how to file a human rights claim
- the specific obligations that an organization has to uphold people’s Code rights and ways it can do this
- the organization’s human rights strategy and human rights policies and procedures, such as complaint procedures and anti-discrimination and anti-harassment policies, and how these relate to people with disabilities
- how the organization accommodates people with disabilities
- how the organization or its employees, customers, tenants and others can be part of a broader cultural shift to be more inclusive of people with disabilities.
Human rights education should not be a one-time event. Ongoing training should be provided to address developing issues, and regular refreshers provided to all staff. The best defence against human rights claims is for organizations to be fully informed and aware of the responsibilities and protections included in the Code. By complying with their responsibilities under the Code, organizations will reduce the chances of human rights claims being filed against them, and save the time and expense needed to defend against them. All of society benefits when people with disabilities are encouraged and empowered to take part at all levels.
For more information on the human rights system in Ontario, visit:
The human rights system can also be accessed by telephone at:
Local: 416-326-9511
Toll Free: 1-800-387-9080
TTY (Local): 416-326 0603
TTY (Toll Free) 1-800-308-5561
To file a human rights claim (called an application), contact the Human Rights Tribunal of Ontario at:
Toll Free: 1-866-598-0322
TTY: 416-326-2027 or Toll Free: 1-866-607-1240
Website: www.hrto.ca
To talk about your rights or if you need legal help with a human rights claim, contact the Human Rights Legal Support Centre at:
Telephone: 416-597-4900
Toll Free: 1-866-625-5179
TTY: 416-597-4903 or Toll Free: 1-866-612-8627
Website: www.hrlsc.on.ca
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Twitter: @OntHumanRights
[286] See Strudwick , supra note 95 at para. 67.
[287] Olarte v. DeFilippis and Commodore Business Machines Ltd. (No. 2) (1983), 4 C.H.R.R. D/1705 (Ont. Bd. Of Inq.), aff’d (1984), 14 D.L.R. [4th] 118 (Div. Ct.). See also Strudwick, ibid. at paras. 67-70.
[288] See Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203 (Ont. Bd. Inq.) at para. 63:
The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the claimant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate the conditions.
[289] See, for example, Wamsley, supra note 89.
[290] Renaud, supra note 208.
[291] See, for example, Selinger v. McFarland, 2008 HRTO 49 (CanLII).
[292] Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 at paras. 162-67 (Ont. Bd. Inq.). These factors help to assess the reasonableness of an organization’s response to harassment, which can affect the legal consequences that flow from the harassment. See also Laskowska v. Marineland of Canada Inc., 2005 HRTO 30.
[293] Available online at: www.ohrc.on.ca/en/policy-primer-guide-developing-human-rights-policies-and-procedures.
[294] For more information on data collection, see the OHRC’s guide: Count me in! Collecting human rights-based data, (2010), available online at www.ohrc.on.ca/en/count-me-collecting-human-rights-based-data, and the OHRC’s Racism Policy, supra note 113.
[295] In addition to what the Code requires, organizations should also be aware of the requirements under the AODA, supra note 6. For example, section 3 of Regulation 191/11, Integrated Accessibility Standards [IASR], requires organizations to develop accessibility policies; section 28 of the IASR requires organizations to create a written process to develop individual accommodation plans for employees with disabilities; and section 4 of the IASR requires all organizations (except for small private/not-for-profit organizations with fewer than 50 employees) to develop multi-year accessibility plans that outline the organization’s strategy to prevent and remove barriers and meet their accessibility requirements. These plans must be reviewed and updated every five years.
[296] See section 8 of the Code, supra note 7.