Part 2 - The policy framework

3. Types of racial discrimination

It is not possible to slot people’s experiences of racial discrimination into clear categories. Manifestations of discrimination blur together and overlap to a large degree. However, for the purposes of this policy, it is necessary to describe the different ways in which racial discrimination can take place. Therefore, what follows is a discussion of the main ways in which racial discrimination can occur that are helpful in understanding and addressing the experience of racial discrimination.

3.1. Stereotyping and prejudice

Although racial discrimination has become more subtle and concealed, stereotyping, prejudice and bias remain a reality in a variety of areas including but not limited to workplaces, housing accommodation, stores, malls, restaurants, hospitals, schools and the justice system.

One of the most obvious ways in which people experience racial discrimination is through stereotyping. Stereotyping can be described as a process by which people use social categories such as race, colour, ethnic origin, place of origin, religion, etc. in acquiring, processing and recalling information about others.^[58] Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of their individual differences. It is often based on misconceptions, incomplete information and/or false generalizations. Practical experience and psychology both confirm that anyone can stereotype, even those who are well meaning and not overtly biased. While it may be somewhat natural for humans to engage in racial stereotyping it is nevertheless unacceptable.

In most cases, stereotypes ascribe negative characteristics to a group. It is impossible to describe all the generalizations that people may reach about others. However, they tend to include assumptions that racialized persons as a whole, or specific racialized groups, are: unintelligent, lazy, unreliable, dirty, uncivilized, promiscuous, submissive, more likely to abuse drugs or alcohol, of questionable moral character, more likely to engage in criminal activity or alien (i.e. do not fit into Canadian society).

In some cases, “positive stereotypes” may be at play, e.g. generalizations that members of a particular group are math whizzes, great athletes, or dutiful employees. It is also important not to minimize the harmful effects of these types of “positive stereotypes” in that they can also result in unequal treatment. For example, an educator who encourages African Canadian students only towards sports and discourages academics, thinking that they will only go far in school as good athletes, may be, in fact, failing to support them in their educational interests and aspirations. The students may come to believe these stereotypes, thereby giving priorities to their athletic roles at the expense of their academic performance and educational achievements.^[59]

Stereotypes are insidious because they can be acted upon in a way that results in unequal treatment, but also because they may be internalized by their subjects who, as a result, believe or accept the stereotypes.

Many racial discrimination complaints allege that a respondent has relied, usually obliquely, on stereotypes.

Example: A landlord didn’t rent an apartment to a Black woman, in part, because of a stereotype that Black people are indigent and noisy. A Tribunal held^[60] that where racial stereotyping is one of the factors in a decision not to rent a residential unit, this would constitute a violation of the Code.^[61]

Example: An Aboriginal woman was evicted from a hotel and denied service in the lounge. The tribunal found it particularly offensive that the hotel owner assumed that the woman was a prostitute because she was a single Aboriginal woman in a hotel by herself.^[62]

Racial discrimination also occurs because of overt prejudice, an antipathy or negative feelings held by someone about another person or a group.

Example: An employer rejected a Black candidate for a job position after meeting her. He was visibly shocked and turned her down flat, without any inquiry regarding her credentials. When asked what was wrong he said something about maintaining the company image.^[63]

Example: Two women of Aboriginal ancestry were seeking to rent a house. Upon learning that they were Aboriginal, the owner’s wife stated she didn’t rent to “Indians” and made further disparaging comments. She then asked what the women did and when one of the women said she was on social assistance responded, “That’s just as bad.”^[64]

Racial stereotyping and prejudice can also lead to racial harassment (discussed below).

3.2. Racial profiling

The OHRC has defined racial profiling as any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment. Its practice is not limited to any one group of people or particular institution.

The OHRC has stated that racial profiling is, at its heart, a form of stereotyping based on preconceived ideas about a person’s character. As human rights are founded on the need to ensure individualized decision-making about individuals, instead of judgments based on presumed characteristics, racial profiling is a form of racial discrimination and can result in applications to the Tribunal.

The Ontario Court of Appeal has recognized the inherent problem with evidence needed to prove a racial profiling case. The Court has noted that racial profiling can rarely be proven by direct evidence and therefore if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.^[65] Race only needs to be a factor in the conduct alleged to constitute profiling. It need not be the main or major cause of the adverse treatment and racial profiling can be found to have occurred even if race was mixed in with other legitimate factors.^[66]

In order to prove an allegation of profiling, it must be shown that the person alleged to have profiled had some opportunity to observe or presume the race of the complainant.^[67] If this is demonstrated, it is necessary to determine whether this knowledge led the person alleged to have profiled to act in a discriminatory way. The following considerations will be relevant to determining whether racial profiling was an element in a particular situation:

• Statements were made that indicate the existence of stereotyping or prejudice: racial slurs, statements suggesting that someone is viewed as “foreign” e.g. “In this country we don’t....,” “Do you speak English?,” comments that are indicative of stereotypes, e.g. “What are you doing in this neighbourhood?”^[68], “You have to pay for this cab ride upfront.”
• Actions corresponded to the phenomenon of racial profiling.^[69]
• A non-existent, contradictory or changing explanation is given for why someone was subjected to greater scrutiny or differential treatment or an explanation is offered that does not accord with common sense.^[70]
• The situation unfolded differently than if the person had been White.^[71]
• There were deviations from the normal practice.^[72]
• An unprofessional manner was used or the person was subjected to discourteous treatment.^[73]

Example: Two Black men in a Texas-registered black Ford Mustang were pursued by a Halifax Police Constable and stopped. The Constable asked for proof of insurance and vehicle registration but did not accept the validity of the documents offered or the explanations given. He ticketed the driver, and ordered the car towed. In fact, the documentation was valid under Texas law. The seizure was erroneous and the car was released the following day. In finding racial discrimination, the Board of Inquiry concluded that the Constable’s actions were influenced by a racial stereotype of Black male criminality. In addition to over $15,000 in monetary damages and costs, the Board ordered institutional remedies. The Halifax Regional Police Service was required to hire consultants to assess the effectiveness of the Service’s anti-racism and diversity training policies, to make the report public and to publicly indicate what steps the Service has taken and will take in light of the report.^[74]

Finally, it is important to note that persons who reasonably believe they are being racially profiled can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner. A citizen who honestly and reasonably believes that he or she is being treated unjustly is entitled to protest vigorously, as long as there is no resort to threatening gestures to accompany the words. A Tribunal has stated that a person’s use of abusive language in these circumstances requires reasonable tolerance and tact and cannot form the basis for further differential treatment.^[75]

3.3. Subtle racial discrimination

While racial discrimination is sometimes displayed overtly, it is recognized that in many instances racial discrimination takes on more subtle and covert forms. Tribunals have frequently noted: “Discrimination is not a practice which one would expect to see displayed overtly”^[76] and that it is “often subversive and subtle.”^[77] It has long been established in Canadian law that intent or motive to discriminate is not a necessary element for finding that a discriminatory act took place. It is sufficient if there is a discriminatory effect to the conduct.^[78] Racial discrimination need only be one of several reasons for the decision or treatment received.^[79]

Subtle forms of discrimination can often only be detected upon examining all of the circumstances.^[80] Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received.

Cases alleging subtle discrimination will therefore require an investigation and analysis that examines the total context of the behaviour, comment or conduct alleged, including the presence or absence of comparative evidence contrasting how others were treated in a comparable situation or evidence that a pattern of behaviour exists.

There are many examples of how subtle forms of racial discrimination may occur. It can be particularly difficult to determine whether racial discrimination was a factor in hiring. Where a racialized person is qualified and someone else, no better qualified, is selected, the organization will need to provide a non-discriminatory explanation for failing to hire the racialized person.^[81] Discrimination in the hiring process may be established even if the complainant would not have been the successful candidate in the absence of discrimination.^[82]

On-the-job, the following types of treatment may be indicative of racial discrimination:

• exclusion from formal or informal networks
• denial of mentoring or developmental opportunities such as secondments and training which were made available to others
• differential management practices such as excessive monitoring and documentation or deviation from written policies or standard practices when dealing with a racialized person
• disproportionate blame for an incident^[83]
• assignment to less desirable positions or job duties^[84]
• treating normal differences of opinion as confrontational or insubordinate when involved with racialized persons
• characterizing normal communication from racialized persons as rude or aggressive^[85]
• penalizing a racialized person for failing to get along with someone else (e.g. a co-worker or manager), when one of the reasons for the tension is racially discriminatory attitudes or behaviour of the co-worker or manager.^[86]

In some instances, a non-discriminatory explanation may be available for such treatment. However, subjective explanations such as “bad attitude” or undocumented “poor performance” will be received with caution. It is therefore in an organization’s best interest to engage in good human resources practices, such as documented progressive performance management of all employees. It has also been established that an individual’s behaviour may itself be a reaction to the experience of discrimination or the existence of a poisoned environment.^[87]

In housing accommodation, subtle screening methods may be used to deny racialized applicants equal access to housing:

• Racialized persons may be advised that an apartment has already been rented only to have a White friend inquire about the availability of the accommodation and be told that it is still available.
• Tenants may not be granted equal access to housing related services because of race and related grounds. This may be in the form of sub-standard living conditions or failing to carry out repairs.^[88]
• Discrimination may occur as a result of issues being made about the cultural practices of tenants.^[89]

Example: A Black man responded to an ad for an apartment and was invited to view it. After the viewing he was told that another person was coming to view the suite and that he would be advised if it would be available. On phoning the landlord he was told that the suite had been rented. However, when his girlfriend’s sister phoned back, she was told the suite was still available. The Tribunal rejected the landlord’s evidence that the man’s demeanour made her uncomfortable and the evidence of another tenant, a woman of Chinese origin, that the landlord could not have practiced racial discrimination vis-à-vis the Black man as she had rented a suite to her.^[90]

In the context of education services, subtle forms of discrimination can manifest in a number of ways including:^[91]

• how educators treat racialized students
• whether racialized students are encouraged to pursue technical versus academic streams
• low teacher expectation of racialized students
• differential disciplinary action directed toward racialized students
• deviating from written policies or standard practices when it comes to dealing with racialized students
• failing to deal with racial incidents or bullying between children or downplaying the seriousness of such conduct
• treating a racialized student’s response to racial incidents or bullying as a disciplinary problem without dealing with the underlying incident or considering the underlying incident as a mitigating factor.

Issues can also arise in other service areas.

Example: An Aboriginal man reserved a room at an inn and was given a dirty, substandard room. There was statistical evidence drawn from the hotel’s records that certain rooms were more often assigned to Aboriginal clients and that better rooms were more often assigned to non-native clients. In addition, a local police officer who phoned the hotel on behalf of people needing accommodation was asked whether the people were native “because all the native rooms were occupied.”^[92]

It is not necessary for language or comments related to race to be present in the interactions between the parties to demonstrate that racial discrimination has occurred. However, where such comments are made, they can be further evidence that race has been a factor in an individual’s treatment. Similarly, negative comments made about an individual advocating for human rights or equitable practices will tend to support an inference that race is a factor in an individual’s or organization’s interaction with that individual.^[93]

Example: A Black Vice Principal repeatedly tried to secure a promotion to the position of Principal. In looking at the totality of the evidence, the Tribunal found that irrelevant references to the race of the complainant and a Black teacher by management staff during interviews and/or discussions about transfer opportunities as well as admonishments to Black teachers who advocated for equitable practices “not to expect things to change overnight” supported an inference that transfer and promotion decisions were influenced by considerations of race.^[94]

Where racial discrimination prohibited by the Code is alleged, “everyday racism” can form part of the context in assessing whether subtle racial discrimination is at play. Such cases will normally require an element of recurrence and repetitiveness^[95] as well as an examination of how others in comparable situations were treated.^[96]

Example: A manager frequently rolls his eyes or interrupts when a racialized employee speaks during staff meetings, even though nothing untoward is being said. The manager is not observed to do this with other employees. When the relationship between the employee and manager becomes excessively tense, the racialized person’s employment is terminated. The explanation provided is his failure to get along with his manager.

Similar fact evidence will be used to support an allegation of racial discrimination where appropriate.^[97] In addition, recognizing that most racialized persons are more likely to see discrimination that remains invisible to others, it is the OHRC’s position that a perception of discrimination by others may have some relevance in a human right claim. ^[98]

Evidence that an individual who shares the racialized characteristics of the complainant has not experienced discrimination may or may not have relevance, depending on the nature of the allegations of discrimination. General allegations of failing to promote “minorities” may call for an examination of whether an organization has promoted other “minorities.” However, with regard to a specific allegation regarding the treatment of African Canadians, evidence regarding treatment of Chinese Canadians may be of little or no use. This is due to the fact that racial discrimination can manifest very differently based on each person’s racialized characteristics. This is particularly so among racialized groups but it can also be the case within a group. For example, a person who speaks with a South Asian accent and wears South Asian cultural clothing may have a very different experience than someone who is seen to be more “assimilated,” a light skinned person may have a different experience than someone with darker skin and a person may be singled out for harsh treatment while others are not because the person refuses to fit a stereotype or asserts his or her rights.

Since anyone can engage or participate in discrimination, asserting that racial discrimination could not have occurred because a person alleged to be involved is himself or herself a racialized person is also not necessarily a defence.

3.4. Racial harassment

3.4.1. Code protections for harassment

Section 5(2) of the Code provides that all employees have a right to freedom from harassment in the workplace by the employer, employer’s agent, or by another employee because of, among other grounds, race, colour, ancestry, place of origin, ethnic origin, citizenship and creed. This right to be free from harassment includes the workplace but also the “extended workplace,” i.e. events that occur outside of the physical workplace or regular work hours but which have implications for the workplace such as business trips, company parties or other company related functions.

Section 2(2) of the Code provides that every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of among other grounds, race, colour, ancestry, place of origin, ethnic origin, citizenship and creed.

The Code contains no explicit provisions dealing with harassment in the areas of services, goods and facilities (section 1 of the Code), contracts (section 3 of the Code) or membership in trade and vocational associations (section 6 of the Code). However, it is the position of the OHRC that racial harassment in such situations would constitute a violation of sections 1, 3 and 6 of the Code, which provide for a right to equal treatment without discrimination with respect to services, goods and facilities, contracts and membership in trade and vocational associations respectively.

3.4.2. What constitutes harassment

Harassment is defined in section 10(1) of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes a subjective and objective test for harassment. The harasser’s own knowledge of how his or her behaviour is being received is the subjective part of the test. The objective component considers, from the point of view of a “reasonable” third party, how such behaviour would generally be received. The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed.^[99]

Tribunals have accepted the particular impact that racial terms have on racialized persons. When White people in positions of power insult Black or other racialized individuals in racially abusive terms, their words reflect society’s judgments about the superiority of White people and the inferiority of others. Racist language has this effect, whether or not it is intended, because these judgments are built into the meanings of the words.^[100]

In many situations it should be obvious that the racially based conduct or comments will be offensive or unwelcome. The following types of behaviours would in most instances be considered “a course of comment or conduct which ought reasonably to be known to be unwelcome”:

• racial epithets, slurs or jokes
• being subjected to racial name calling or nicknames^[101]
• racial cartoons or graffiti
• comments ridiculing individuals because of race-related characteristics, religious dress, etc.
• singling out an individual for teasing or jokes related to race, ancestry, place of origin or ethnic origin
• being subjected to inappropriate references to racist organizations such as the Ku Klux Klan
• circulating racially offensive jokes, pictures or cartoons by e-mail or having a racially offensive screensaver.

It is important to note that conduct or comments which involve a person's race may not, on their face, seem offensive. However, they may still be "unwelcome" from the perspective of a particular individual. If the individual objects and if a similar behaviour is repeated, it may constitute a violation of the Code.

In addition, the comments or conduct need not be explicitly racial in order to constitute racial harassment:

Example: In a workplace, only the Hispanic employees are made the brunt of demeaning practical jokes and teasing. An inference may be drawn from the particular circumstances that the treatment was racial harassment, even though the practical jokes and teasing contained no reference to race.

If an individual objects to behaviour, this will provide strong support for a conclusion that the behaviour was known or ought reasonably to have been known to be unwelcome. At the same time, however, it is important to recognize that persons experiencing racial harassment may not object and may even appear to be going along with or participating in the comments or conduct.

Tribunals have recognized that this type of response is understandable and does not defeat a complaint of harassment. Some persons who are experiencing harassment do not object because they are in a vulnerable situation, are afraid of the consequences of speaking out, or because they are internalizing the stress through quiet acceptance. Others can be expected to respond with outbursts, becoming angry, using strong language, including retaliating with racial comments, and becoming emotional.^[102]

It is not possible for an individual to contract out of his or her human rights. As well, employers, landlords and service providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects. Therefore, arguing that a racialized person accepted, condoned or participated in harassment or discrimination will not provide a defence.

3.4.3. Harassment based on multiple grounds

As with racial discrimination, people sometimes experience racial harassment in complex ways based on the intersection of multiple grounds. For example, the experience of racial harassment will often differ for men and women. This is because people often experience distinctive forms of stereotyping based on the combination of race and gender. Similarly, factors such as sexual orientation, disability, age, language^[103] and religion can give rise to a unique and complex experience of racial harassment.

Racial stereotypes about the sexuality of women have played a part in a number of sexual harassment complaints. Women may be targeted because of a belief that based on racialized characteristics, they are more sexually available, more likely to be submissive to male authority, more vulnerable, etc.

Example: A woman of mixed Métis and Black ancestry was subjected to a serious course of sexual comments by her employer that repeatedly referenced his preference for Black women and the physical characteristics of Black and African women. She was also subjected to physical touching and pornography. The Tribunal found that her employer sexually and racially harassed her because she is a young Black woman over whom, as her employer, he could assert economic power and control. He repeatedly diminished her because of his racist assumptions about the sexuality of Black women. Separate monetary damages were awarded for each of the racial and sexual harassment. The tribunal also found that the intersectionality of the harassment and discrimination exacerbated her mental anguish.^[104]

It is the OHRC’s position that where multiple grounds intersect to produce a unique experience of discrimination or harassment, this must be acknowledged to fully address the impact of discrimination or harassment on the person who experienced it. Where the evidence indicates that harassment occurred on the basis of multiple grounds, it is the OHRC’s position that the Tribunal should apply the concept of intersectionality with respect to the issue of liability and the remedy available to the applicant.

3.5. Poisoned environment

The Code definition of harassment refers to more than one incident of comment or conduct. However, even a single statement or incident, if sufficiently serious or substantial, can have an impact on a racialized person by creating a poisoned environment.^[105] A consequence of creating a poisoned environment is that certain individuals are subjected to terms and conditions of employment, tenancy, services, etc. that are quite different from those experienced by individuals who are not subjected to those comments or conduct. Such instances give rise to a denial of equality under the Code.

In the employment context, tribunals have held that the atmosphere of a workplace is a condition of employment just as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace.^[106] Management personnel who know or ought to know of the existence of a poisoned atmosphere but permit it to continue thereby discriminate against affected employees even if they themselves are not involved in the production of that atmosphere.^[107]

While the notion of a poisoned environment has predominantly arisen in an employment context, it can apply equally where it results in unequal terms and conditions in occupancy of accommodation, the provision of services, contracting or membership in a vocational association.

A poisoned environment can specifically arise in the context of educational services. Schools have a duty to maintain a positive non-discriminatory learning environment.^[108] Students are entitled to be free from a poisoned educational environment created either by inappropriate behaviour of an education provider or by other students. Education providers have a responsibility to take immediate steps to intervene in situations where racial teasing, bullying or harassment may be taking place.

A poisoned environment is based on the nature of the comments or conduct and the impact of these on an individual rather than on the number of times the behaviour occurs. As mentioned earlier, even a single egregious incident can be sufficient to create a poisoned environment.^[109]

A poisoned environment can be created by the comments or actions of any person, regardless of his or her position of authority or status in a given environment. Therefore, a co-worker, a supervisor, a co-tenant, a member of the Board of Directors, a service provider, etc. can all engage in conduct that poisons the environment of a racialized person.

Behaviour need not be directed at any one individual in order to create a poisoned environment. Moreover, a person can experience a poisoned environment even if he or she is not a member of the racialized group that is the target.

Example: A Chinese Canadian woman worked in a bakery where racial slurs and stereotypical language were common in the kitchen. Although none of these remarks were directed specifically to her, but rather to her Black co-workers, a Board of Inquiry found that she had also been subjected to a racially poisoned environment.^[110]

Examples of situations which could be viewed as a violation of the Code by creating a poisoned environment include the following:

• A supervisor or landlord saying to an employee or tenant “I don’t know why you people don’t go back where you came from because you don’t belong here.”
• Comments, signs, caricatures, or cartoons displayed in a service environment such as a store or restaurant, in a work or tenancy situation which show racialized persons in a demeaning manner.
• Racial graffiti which is tolerated by an employer, a landlord or a service provider who does not act promptly to have the racial graffiti removed.
• Racial remarks, jokes or innuendo about an employee, client, customer or tenant. In addition, racial remarks, jokes or innuendo made about other racialized persons or groups may create an apprehension that similar views are held about the employee, client, customer or tenant.

Where an employee is terminated within a poisoned work environment, a proper consideration of whether the termination was discriminatory requires that it be examined in the context of the poisoned work environment.^[111]

Inappropriate comments or conduct not only poison the environment for racialized persons, they affect everyone’s environment and are disruptive. It is the responsibility of every employer, landlord or service provider to ensure that its environment is free from this sort of behaviour, even if no one objects.

3.6. Language-related discrimination

While the Code does not include “language” as a prohibited ground of discrimination, language can be an element of a complaint based on the grounds of ancestry, ethnic origin, place of origin and race. As noted in the OHRC’s Policy on Discrimination and Language, a person’s accent is related to his or her ancestry, ethnic origin or place of origin and as discussed earlier in this policy, accents or manners of speech can be racialized characteristics.

There can be situations where the issue of the fluency of language or a person’s accent can be used to mask discrimination based on race.

Example: An African Canadian woman who is involved in a disagreement with a co-worker over the phone is told by a manager that her accent can be interpreted to be “hard and rude” on the ears. The African Canadian woman is very offended by this characterization of her accent and the fact that her accent is being blamed for provoking the disagreement. When she insists on an apology from the manager, she is perceived by management to be “volatile,” “difficult” and “aggressive” and singled out for performance management.

Example: Workers from Ecuador and other Central and South American countries were treated differently and ridiculed for their use of the Spanish language, and for their inability to speak English consistent with their recent arrival in Canada.^[112]

Example: A subsidized housing provider does not add an applicant to its waiting list because she is not fluent in English and will be hard to communicate with.

At the same time, it is recognized that in some circumstances proficiency in a certain language may be a reasonable and bona fide requirement.^[113]

Example: An immigrant settlement agency that serves persons from South Asian countries requires support workers. Most of its clientele has recently arrived in Canada. Fluency in one or more South Asian languages in addition to English (or French) would likely be considered a bona fide requirement for the position.

3.7. Association

The Code provides protection to persons who experience discrimination or harassment because of their association, relationship or dealings with a racialized person or persons.^[114] This form of discrimination often arises in the context of inter-racial relationships and can manifest in several ways:

• experiencing workplace harassment or a poisoned environment because of a relationship with a racialized person, e.g. inappropriate sexual comments being made to a woman who is dating a racialized man^[115]
• unsolicited warnings being offered to a woman that her racialized boyfriend will treat her badly because of a stereotypical assumption that “men from his part of the world are sexist”
• experiencing differential treatment in services, e.g. being stopped by police when in a car with a racialized man because of an assumption that a woman with a racialized man must be a prostitute^[116]
• being subjected to discrimination or harassment in housing because a landlord doesn’t want a tenant’s racialized friend visiting.

Racial discrimination because of association in the housing context can also arise where landlords prevent tenants from subletting to racialized persons.

Example: A landlord was found to have discriminated against a tenant when he prevented him from subletting his apartment to a couple of Aboriginal ancestry. ^[117] In another case, a landlord was found liable for discrimination when he refused to allow assignment of a lease to persons of “East Indian” or Pakistani origin.^[118]

Actions taken against persons who object to racist comments aimed at another group have been found to be discrimination because of association.

Example: A woman who was a member of a club confronted other members about racist comments they made about “niggers” and “Indians.” The Tribunal found that having spoken out against racism, the woman clearly associated herself with First Nations and racialized people and that actions taken by the club, because she stood up to racist comments, amounted to a breach of the Code.^[119]

3.8. Special interest organizations

In certain circumstances, the Code permits certain types of organizations to limit participation or membership based on Code grounds including race and related grounds:

18. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

Example: A legal clinic that is primarily engaged in serving the interests of members of a specific racialized community only accepts members of that community as clients.

Similarly a religious, philanthropic, educational, fraternal or social institution that is primarily engaged in serving the interests of persons identified by their race and related grounds can give preference in employment to persons similarly identified if the qualification is reasonable and bona fide because of the nature of the employment (section 24(1)(a)).

An organization that wishes to rely on these defences must show it meets all of the requirements of the relevant section.

4. Systemic or institutional dimensions

Racial discrimination exists not just in individual behaviour but can also be systemic or institutionalized. Systemic or institutional discrimination is one of the more complex ways in which racial discrimination occurs. Organizations and institutions have a positive obligation to ensure that they are not engaging in systemic or institutional racial discrimination.

Systemic or institutional discrimination consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for racialized persons.^[120] These appear neutral on the surface but, nevertheless, have an exclusionary impact on racialized persons. However, systemic discrimination can overlap with other types of discrimination that are not neutral. For example, a discriminatory policy can be compounded by the discriminatory attitudes of the person who is administering it.

Systemic or institutional discrimination is a major barrier to racialized groups, particularly in the employment context, in education and in the criminal justice system. The impacts of systemic racial discrimination can be experienced differently based on intersection with other grounds of discrimination such as gender, disability, place of origin, etc. For example, in a workplace that relies heavily on culturally and gender specific sporting activities to build informal networks, which, in turn, lead to promotions, a racialized woman with a disability could find herself at a triple disadvantage. A man who has recently emigrated from Africa may face similar barriers in networking and ultimately advancing in this organization. Therefore, addressing systemic discrimination requires sensitivity to the interacting and cumulative effects of discrimination on multiple grounds.

As discussed in section “1.4. Historical context: the legacy of racism in Canada,” the history of racism in Canada continues to have a significant impact on affected communities. Disadvantage in many communities has accumulated as a result of past and present discrimination. For example, the economic disadvantage apparent in First Nations and African Canadian communities may be related to discriminatory practices of the past that limited economic opportunities of members from these communities.

The combined impact of current and historical disadvantage is reflected in statistics regarding unemployment, underemployment, low wage jobs, low education, poverty and inadequate housing. For example, in the 2001 census, the median income of the total Canadian population aged 15 years and over was $22,120 compared with $17,610 of the total “visible minority” population. With regard to low-income families, the incidence of low income was 12.9% for the total population compared with 26.0% of the total “visible minority” population.^[121] The situation is even more serious for Aboriginal persons.^[122] For example, in 1996 Census data showed that Aboriginal peoples in urban areas were more than twice as likely to live in poverty as non-Aboriginal people and data from the 2001 census shows that the median income of all persons indicating Aboriginal identity is $13,526, or 61% of the median income for all Canadians.^[123]

In some situations, the existence of historical disadvantage is a factor that gives rise to or contributes to systemic discrimination. It is therefore necessary to consider an individual or group’s already disadvantaged position in Canadian society as part of any analysis of whether systemic or institutional discrimination is taking place. For example, health services that are not as readily available to lower income individuals or in lower income areas may result in a systemic barrier for racialized persons who, by virtue of historical disadvantage, are more likely to be poor.

4.1. Identifying systemic discrimination

The following three considerations can be employed for identifying and addressing systemic discrimination:^[124]

1. Numerical data
2. Policies, practices and decision-making processes
3. Organizational culture

The OHRC expects organizations and institutions to use these three considerations as a basis for proactively monitoring for and, if found to exist, addressing systemic discrimination internally, i.e. with regard to human resources and employment or externally, for example in their service delivery. In addition, if an application is filed with the Tribunal, the Commission’s position is that these considerations should guide the Tribunal in its assessment of whether systemic discrimination exists within an organization or institution.

1. Numerical data
Numerical data that demonstrates that members of racialized groups are disproportionately represented may be an indicator of systemic or institutional racism. Numerical data can be evidence of the consequences of a discriminatory system in the following ways:

• Under-representation in an organization relative to the availability of qualified individuals in the population or in the applicant pool suggests systemic discrimination in hiring practices or may be indicative of on-the-job discrimination resulting in a failure to retain racialized persons.
• Unequal distribution of racialized persons in an organization (for example, high concentration in entry-level positions and low representation in managerial positions) may demonstrate inequitable training and promotion practices.
• Over-representation of racialized persons in police stops, jails and in other areas of the justice system may be indicative of the practice of racial profiling or other forms of racial discrimination. Similarly, evidence of racialized children and youth being disproportionately disciplined, suspended or expelled under “zero tolerance” school safety policies may be suggestive of discriminatory effects of these policies.

Except in the most obvious circumstances (for example, where the data shows gross disparities in treatment that are unlikely to be the result of random selection), numerical data alone will not be proof of systemic discrimination.^[125] However, it will constitute strong circumstantial evidence of the existence of inequitable practices. An organization can challenge the statistics and their validity or can demonstrate a non-discriminatory reason for disproportional representation.

It is important to note that numerical data can be evidence of both systemic discrimination and more overt forms of discrimination. For example, numerical data showing an under-representation of qualified racialized persons in management may be evidence of employment systems that have the effect of discriminating and/or of decision-makers having an overt bias toward promoting White candidates into supervisory roles.

As discussed in detail in section “6. Collection and analysis of numerical data,” it is the OHRC’s position that 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. In addition, whether or not data collection has taken place, an organization or institution must be conscious of issues of representation and cannot choose to remain unaware of disparities that exist.

2. Policies, practices and decision-making processes
In addition to or apart from numerical data, evidence of systemic discrimination may be found in the policies, practices and decision-making processes. These may be either formal or informal in nature.

The Supreme Court of Canada has made it clear that systems must be designed to be inclusive of all persons.^[126] It is no longer acceptable to structure systems in a way that assumes that everyone is a member of the dominant group and then try to accommodate those who do not fit this assumption. Rather, the racial diversity that exists in Ontario should be reflected in the design stages of programs so that barriers are not created.

As a corollary to the notion that inclusive design should be used from the outset, where barriers already exist within systems and structures, they should be actively identified and removed.

Therefore, an organization has a responsibility to ensure its practices create inclusiveness, and not merely to make exceptions to allow individuals to fit into an existing system. Barriers should be prevented at the design stage and where systems already exist, organizations should be aware of the possibility of systemic barriers and actively seek to identify and remove them.

Example: Employment systems reviews to identify barriers to recruitment, retention and advancement are a core requirement of federal employment equity legislation. These reviews involve looking at written policies and also informal practices that are in use in recruitment, selection and hiring of employees, the development and training of employees, the promotion of employees and the retention and termination of employees. The process of an employer self-monitoring its own practices and addressing any barriers identified is a best practice for any organization, whether or not it is governed by employment equity legislation in addition to human rights legislation.

Example: The language and content of questions on a standardized test are based on mainstream White culture and have the effect of screening out racialized persons and recent immigrants. Recognizing this, an organization modifies the content of the test to reduce racial bias or adopts alternative means of academic assessment.

Several major types of barriers can lead to disadvantage for racialized persons. One of the most obvious ones is the use of informal or highly discretionary processes for decision-making. The less formal the process, the more likely that subjective considerations or differing standards will be applied and the more opportunity there is for unconscious or conscious biases to come into play.^[127] In some situations, formal policies exist but are not always applied or are applied unevenly, thus leading to barriers for some. Another pitfall is failing to account for difference in standardized procedures and evaluating people using the dominant culture as the norm. For example, testing or evaluation that fails to account for cultural difference can be a barrier to racialized persons or immigrants. Historical disadvantage poses a major barrier in many contexts.

For guidance on workplace policies, practices and decision-making processes that can lead to systemic discrimination, see the Appendix.

3. Organizational culture
Organizational culture can be described as shared patterns of informal social behaviour, such as communication, decision-making and interpersonal relationships, that are the evidence of deeply held and largely unconscious values, assumptions and behavioural norms. An organizational culture that is not inclusive can marginalize or exclude racialized persons.

Specific aspects of an organizational culture that tend to be socially constructed by dominant groups include communication styles, interpersonal skills and leadership abilities. These are highly subjective qualities that are influenced by cultural differences as well as the process of racialization. As such, racialized persons can run into difficulties when assessed against these dominant norms.

Example: A White woman’s straightforward communication style leads co-workers to appreciate her as a “straight talker.” An African Canadian woman’s similar style results in her being characterized as “abrupt.”

Example: A Pakistani Canadian man was not given a teaching job for which he was the most qualified candidate because a White woman was perceived to be more enthusiastic and to have greater potential to motivate students. In fact, the Pakistani Canadian man was extremely enthusiastic about teaching and had great potential to motivate students but demonstrated this in a different manner. The Tribunal found discrimination because of the employer’s failure to take into account cultural differences.^[128]

Example: A senior manager in an organization noted in a memo that cultural differences were minimized in technical positions but that “soft skills” such as communicating, influencing and negotiating were affected by cultural differences. The Tribunal found that “visible minorities” were viewed by senior management as culturally different and not considered suitable for managerial positions.^[129]

A related issue can be an organization’s tendency to undervalue the strengths and contributions of racialized employees.

Example: A Chinese Canadian teacher was placed on a surplus list because the school principal took a narrow view of what types of activities qualified as “extra-curricular.” Activities that for cultural reasons Chinese immigrants would be unlikely to undertake were included while legitimate activities that they would be more disposed to engage in were excluded.^[130]

Social relationships and networks are also an important part of organizational culture. These networks can allow some people to know what is required for success in an organization, with others being excluded from this critical knowledge. In addition, social relationships can result in perceptions about whether a person “fits” within an organization or is seen as an outsider.

Example: A company emphasizes evening social events outside of the workplace as an important part of team building. Racialized employees who do not participate for cultural or religious reasons are seen as not being team players and miss out on significant networking opportunities.^[131]

4.1.1. Establishing a Link between the system and the individual

One of the challenges in addressing systemic discrimination is that there may be little or no evidence of individual discrimination. In other words, it is a system, which may on its face appear completely neutral, that is conveying certain privileges for some groups and having an adverse impact on others. There may be nothing to suggest that the individual was singled out for adverse treatment. In fact, it may seem as though the individual was treated in a fair manner and failed due to his or her own shortcomings.^[132]

Example: A racialized person is not awarded a promotion due to poor performance during the interview. Nothing is said or done to suggest that her race was a factor in the assessment. However, on closer examination, it becomes apparent that a significant component of the interview process involved assessing “presence” and “confidence.” Moreover, the successful candidate had been coached on what to expect during the interview by a manager who really wanted to see her get the job, while the racialized person was not offered the same opportunity.

It can be very difficult for an individual to demonstrate that a discriminatory system had a discriminatory adverse effect on him or herself. This is particularly so as the individual will not likely have access to all of the information regarding how the system operates.

Example: An independent school whose student population is predominantly White selects prospective students based, in part, on a “trial day” which involves a child attending the school for a day to see if the child “fits in.” Parents of a racialized child who doesn’t get offered a spot are simply told that there is a long waiting list and they choose the students who are “most suitable.” There is no way for the parents to know why their child was not “suitable.”

Accordingly, it is the OHRC’s position that if evidence of systemic discrimination is found to exist, the organization or entity responsible for the system is required to produce information to show that this system did not contribute to an individual’s experience of discrimination.

4.2. Reasonable and bona fide requirements

There may be some instances where a policy, practice or decision-making process is neutral on its face but leads to systemic discrimination against racialized persons or groups. The organization or institution may nevertheless seek to justify or maintain the policy, practice or decision-making process by demonstrating that it is reasonable and bona fide in the circumstances.

In the context of claims of racial discrimination, it is the OHRC’s position that it will be rare that a policy, practice or decision-making process will be found to be bona fide. To date, this defence has been arisen primarily in three situations: (1) income requirements in housing accommodation, (2) language requirements (see section “3.6. Language-Related Discrimination”), and (3) access to professions and trades.

With respect to income requirements, there have been several decisions in Ontario, beginning with the landmark decision in Kearney v. Bramalea Ltd. (No. 2),^[133] that have confirmed that the use of minimum income requirements and rent-to-income ratios result in discrimination on the basis of a number of grounds in the Code including race.

Statistical evidence showed that the landlords’ use of such criteria had a disparate impact on individuals based on their sex, race, marital status, family status, citizenship, place of origin, age and the receipt of public assistance. The landlords could not establish a defence, as they could not demonstrate that the use of the criteria was reasonable and bona fide or that stopping the use of the criteria would cause undue hardship.^[134]

The significance of these decisions from a racial discrimination perspective lies mainly in their recognition of the link between socio-economic status and race. They represent a successful challenge of a policy that affected low-income individuals because of the relationship between poverty and historical disadvantage experienced by racialized groups.

The issue of access to professions and trades is of significant concern to foreign-educated and trained persons who seek to practice their profession or trade after their arrival in Ontario.^[135] While it is an issue that is based primarily on the ground of “place of origin” it also has intersectional implications for racialized persons. The intersection of “place of origin" with race, colour or ethnic origin appears to compound the barriers to employment integration and intensify economic and social vulnerability for foreign educated and trained persons.^[136]

4.2.1. The three-step test

The Supreme Court of Canada has set out a three-step test for determining whether a standard, factor, requirement or rule can be justified as a bona fide one. The organization or institution must establish on a balance of probabilities that the standard, factor, requirement or rule:

1. was adopted for a purpose or goal that is rationally connected to the function being performed
2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal
3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.^[137]

The ultimate issue is whether the person who seeks to justify the discriminatory standard, factor, requirement or rule has shown that accommodation has been incorporated into the standard up to the point of undue hardship.

In this analysis, the procedure used to assess and achieve accommodation is as important as the substantive content of accommodation. The following non-exhaustive factors should be considered in the course of the analysis:

• whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect
• reasons why viable alternatives were not implemented
• ability to have differing standards that reflect group or individual differences and capabilities
• whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner
• whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies

• whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.^[138]

5. Organizational responsibility

The ultimate responsibility for a healthy and inclusive environment rests with employers, landlords, unions, service providers and other organizations and institutions covered by the Code. There is an obligation to ensure that environments are free from discrimination and harassment.

As discussed earlier in this policy, organizations and institutions have an obligation to be aware of whether their practices, policies and programs are having an adverse impact or resulting in systemic discrimination vis-à-vis racialized persons or groups. It is not acceptable from a human rights perspective to choose to remain unaware of the potential existence of discrimination or harassment, to ignore or to fail to act to address human rights matters, whether or not a complaint has been made.

An organization violates the Code where it directly or indirectly, intentionally or unintentionally infringes the Code or does not directly infringe the Code but rather authorizes, condones, adopts or ratifies behaviour that is contrary to the Code.

In addition, there is a human rights duty not to condone or further a discriminatory act that has already occurred. To do so would extend or continue the life of the initial discriminatory act. The obligation extends to those who become involved in a situation that involves a discriminatory act, who, while not the main actors, are drawn into the matter nevertheless, through contractual relations or otherwise.^[139]

Example: A pharmaceutical company refused a Black woman employment in an exhibit booth at an International Congress of Ophthalmology. The woman informed the company that was organizing the Congress and which had nominated her for the job. This company was found to have a relationship with the woman with respect to employment. As such, it had a duty to investigate the refusal of employment and arrive at a reasonable conclusion, although not necessarily a correct one, as to whether discrimination occurred. However, the Tribunal found that the investigation was “barebones” and the conclusion that there was a “misunderstanding” unreasonable. The company’s assistance to the pharmaceutical company in finding other candidates for the booth condoned or furthered the pharmaceutical company’s discriminatory act.^[140]

Unions, vocational and professional organizations are responsible for ensuring that they are not engaging in discrimination or harassment vis-à-vis their membership. They are also responsible for ensuring that they are not causing or contributing to discriminatory actions in a workplace. A union can be held liable for policies or actions that are discriminatory to the same extent as an employer. This will include negotiating a term in a collective agreement that results in racial discrimination or failing to take reasonable measures to address workplace harassment or a poisoned environment.^[141]

Failing to fulfill the duty to ensure that an organization is not engaging in or condoning discrimination or harassment has serious repercussions. Human rights decisions are full of findings of liability and assessments of damages that are based on, or aggravated by, an organization’s failure to appropriately address discrimination and harassment.^[142]

A few examples include:

• A company was found to have discriminated against an “East Indian” Canadian by permitting a racially poisoned environment to develop and persist at the facility where he worked and by disciplining and eventually discharging him without taking into account the racially hostile environment in which he worked. The company should have undertaken systemic efforts to develop and advocate company policies against racist language, to root out offenders and to implement serious and effective measures of deterrence.^[143]
• The owner of a company threatened to dismiss an African Canadian employee because of his strained relationship with his manager. The triggering event for this threat was the manager’s report to the owner of the employee’s reaction to being called “Kunta Kinte” (a slave name). The Court did not accept the company’s argument that the owner was oblivious to the racial poison in the workplace. The company, through its directing mind, was at least reckless in failing to do anything. Based on the poisoned environment, race was found to be a factor in the African Canadian man’s dismissal.^[144]
• An organization that disciplined an employee for reacting to racial harassment by a customer was found liable for how it responded to the customer’s discriminatory conduct. The employer had no control over the customer’s conduct, but by disciplining the employee in such circumstances an employer is condoning the discriminatory conduct and allowing such conduct to invade the workplace.^[145]

The following factors have been suggested as considerations for determining whether an organization met its responsibilities to respond to a human rights claim:

• procedures in place at the time to deal with discrimination and harassment
• the promptness of the institutional response to the claim
• the seriousness with which the claim was treated
• resources made available to deal with the claim
• whether the organization provided a healthy work environment for the person who complained
• the degree to which the action taken was communicated to the person who complained.^[146]

5.1. Vicarious liability

Section 46.3(1) of the Code provides for vicarious liability for breaches of the sections of the Code dealing with discrimination. This means that a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for any act or omission done in the course of his or her employment by an officer, official, employee or agent. This applies not only to human rights violations in the workplace but also in housing accommodation, goods, services and facilities, contracting and membership in unions and vocational associations.

Simply put, it is the OHRC’s position that vicarious liability automatically attributes responsibility for discrimination to an organization for the acts of its employees or agents, done in the normal course, whether or not it had any knowledge of, participation in or control over these actions.

Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, in these cases the “organic theory of corporate liability” may apply. In addition, since the existence of a poisoned environment is a form of discrimination, it is the OHRC’s position that when harassment amounts to or results in a poisoned environment, vicarious liability under section 46.3(1) of the Code is restored.

5.2. “Organic theory” of corporate liability

While section 46.3(1) of the Code exempts an organization from liability for harassment, courts and tribunals have recognized that there are additional circumstances in which an organization will be held liable for the acts or omissions of its employees. The acts or omissions of an employee who is part of the “directing mind” of an organization will engage the liability of the organization where:

1. the employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that is contrary to the Code; or
2. the employee who is part of the “directing mind” doesn’t respond adequately to harassment or inappropriate behaviour of which the employee is aware, or ought reasonably to be aware.

Generally speaking, an employee who performs management duties is part of the “directing mind” of an organization. Employees with only supervisory authority may be viewed as part of an organization’s “directing mind” if they function or are seen to function as representatives of the organization. Even non-supervisors may be considered part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for the guidance of employees. 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.

Finally, persons who are central decision-makers in an organization, such as members of the Board of Directors, may be seen as part of the “directing mind.”

5.3. Accounting for historical disadvantage

We all have a shared responsibility for addressing historical disadvantage. Therefore, it is the OHRC’s position that all organizations, institutions and levels of government should take steps to address historical disadvantage. This expectation is even higher for public bodies as they are more likely to have contributed to the causes of historical disadvantage in the first place^[147] and because government has an enhanced responsibility to ensure that everyone can benefit equally from its services. This was discussed by the Supreme Court of Canada in a disability accommodation case:

...to promote the objective of a more equal society, s. 15(1) acts as a bar to the executive enacting provisions without taking into account their possible impact on already disadvantaged classes of persons.^[148]

There are several approaches to addressing historical disadvantage which can be implemented, alone or in combination. These are discussed in section “7. Preventing and responding to racism and racial discrimination.”

5.4. Public interest remedies

In addition to the ability to award monetary remedies, human rights tribunals are granted broad remedial powers to direct a party found responsible for discrimination to do anything that, in the opinion of the tribunal, the party ought to do to achieve compliance with human rights codes, both in respect of the complaint and in respect of future practices (section 45.2(1)3 of the Code). Public interest remedies that have been ordered by tribunals are wide-ranging and have included requiring an organization to cease or change practices that have resulted in discrimination, to conduct internal or third-party monitoring, to implement comprehensive anti-discrimination and anti-harassment policies and to engage in widespread training of staff and management, to name a few.

In addition, there are several decisions in which human rights tribunals have sought to use their remedial authority to require measures that will account for historical disadvantage. In such cases, the decision-maker has ordered corrective measures designed to remove barriers to full participation and redress the effects of past discrimination.

One of the most significant corrective programs ordered by a tribunal was in a gender discrimination case. A major Canadian employer that was found to have systemically discriminated against women was ordered to hire one woman for every four new hires into unskilled and blue-collar jobs until the representation of women reached the national percentage for women working in equivalent jobs.^[149]

This type of program was more recently ordered in a racial discrimination case. The tribunal imposed a “special corrective measures program” to prevent future systemic discrimination and to eliminate past barriers arising out of the discriminatory practices that were identified. The program entailed seven permanent corrective measures targeted at changing aspects of the systems and organizational culture that were found to pose barriers to racialized persons. As well, 18 temporary corrective measures were identified including hiring “visible minorities” into various levels of the organization at a particular rate (e.g. 18% per year) for a certain number of years, outreach measures, mentoring programs and setting aside a percentage of positions in training programs for “visible minorities.”^[150]

In the past, tribunal decisions have ordered an organization to provide the OHRC with sufficient information on employment practices and statistics to permit the OHRC to monitor the employment practices of the organization for a period of time.^[151] Under section 29 of the amended Code, the OHRC no longer performs this role, but other forms of monitoring may be ordered by the Tribunal, pursuant to its powers under s. 45.2(1) 3.

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^[58] Paying the Price: The Human Cost of Racial Profiling, supra, note 8 at 6.
^[59] C. James, “Stereotyping and its consequence for racial minority youth” (2004) 3:3 Canadian Diversity 40 at 42.
^[60] Richards v. Waisglass (1994), 24 C.H.R.R. D/51 (Ont. Bd. Inq.).
^[61] See also Fuller v. Daoud (2001), 40 C.H.R.R. D/306 (Ont. Bd. Inq.) where the Tribunal found that the respondent, a White woman, falsely accused her Black male tenant of threatening to rape her. The Commission argued that this allegation had particularly serious consequences for the complainant because it “mobilized a history of racist views about white fear of Black men to white womanhood” at para. 78.
^[62] Frank v. A.J.R. Enterprises Ltd. (1993), 23 C.H.R.R. D/228 (B.C.C.H.R.).
^[63] In Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203 (Ont. Bd. Inq), a pharmaceutical company did not allow the complainant, after meeting her, to act as their receptionist at an exhibit booth during a conference for Canadian ophthalmologists. The Tribunal concluded the complainant was rejected because she was Black and accordingly held the company liable. The Tribunal, however, also held the conference organizers liable for assisting the pharmaceutical company in locating other individuals to act as the pharmaceutical company’s receptionist without properly investigating Ms Payne’s allegations of racial discrimination.
^[64] DesRosiers v. Kaur (2000), 37 C.H.R.R. D/204 (B.C.H.R.T.).
^[65] R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.). See also, R. v. Richards (1999), 120 O.A.C. 344 (C.A.), Peart v. Peel (Regional Municipality) Police Services Board, [2003] O.J. No. 2669 (Sup. Ct.) and R. v.Khan (2004), 244 D.L.R. (4th) 443 (Ont. Sup. Ct.).
^[66] Johnson v. Halifax (Regional Municipality) Police Service, supra, note 51 at para. 8.
^[67] Ibid. at para. 10.
^[68] For a discussion of stereotypes that have triggered heightened scrutiny of Black men, see D.M. Tanovich, “E-Racing Racial Profiling” (2004) 41 Alta. L. Rev. 905-933.
^[69] R. v. Brown, supra, note 66 at 174 (C.A.).
^[70] In R. v. Khan, supra, note 66 the police officers’ explanation for why they stopped Mr. Khan and searched his car was found to be inconsistent with the documentary evidence and to defy common sense. Accordingly, the Court concluded that the reasonable inference was that Mr. Khan was stopped because of racial profiling, because he was a young Black male driving an expensive Mercedes.
^[71] “In order to consider if differential treatment has occurred, the board must necessarily hypothesize about how events would have unfolded if the driver and passenger of the vehicle had been white rather than black. ... I find it difficult to imagine that these events would have unfolded the same way if a white driver from Texas had been involved in this stop.” Johnson v. Halifax (Regional Municipality) Police Service, supra, note 51 at para. 51 and 57. See also Hum v. Royal Canadian Mounted Police (1986), 8 C.H.R.R. D/3748 (C.H.R.T.): “Although Mr. Hum was quite legitimately pulled over and asked for his license, registration and insurance slip, there was no warrant for asking him questions about his citizenship and place of birth in circumstances in which a Caucasian exhibiting the same conduct and speaking and dressed in the same way would not have been so challenged.” [at para. 29697].
^[72] In Johnson v. Halifax Regional Police Service, ibid. at para. 57, the Nova Scotia Board of Inquiry held that in deciding whether there has been a prima facie case of differential treatment, a board of inquiry must try to establish how events normally unfold in a given situation. Deviations from normal practice and evidence of discourtesy or intransigence are grounds for finding differential treatment.
^[73] Ibid. The Board of Inquiry found that the unprofessional manner in which the complainant was treated during a traffic stop was based on the complainant’s race and that it would be hard to imagine similar treatment of a White driver.
^[74] Ibid.
^[75] See Johnson v. Halifax (Regional Municipality) Police Service, ibid. at para. 41 and 60. Also, in Hum,supra, note 72 at para. 29696 and 29697, the Tribunal recognized the broader social and historical context that informed the complainant’s feelings of concern, hurt and resentment when he was pulled over and asked questions about his citizenship and place of birth.
^[76] From Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481.
^[77] Raheja v. Newfoundland (Human Rights Commission) (1997), 155 Nfld. & P.E.I.R. 38 at para. 32.
^[78] Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536. This was again confirmed in Smith v. Mardana Ltd. (2005), CHRR Doc. 05-094 (Ont. Div. Ct.), rev’g in part (2002), 44 C.H.R.R. D/142 (Ont. Bd. Inq.).
^[79] Gray v. A & W Food Service of Canada Ltd. (1994), CHRR Doc. 94-146 (Ont. Bd. Inq.), Dominion Management v. Velenosi (1997), 148 D.L.R. (4th) 575 at 576 (Ont. C.A.), Smith v. Mardana Ltd. (Div. Ct.),ibid. at para. 22.
^[80] In Grover v. National Research Council of Canada (No. 1) (1992), 18 C.H.R.R. D/1 (C.H.R.T.), the Tribunal recognized that in weighing the evidence, one often has to assess circumstantial evidence in order to identify “the subtle scent of discrimination” [at para. 158].
^[81] The precise test is set out in Lasani v. Ontario (Ministry of Community and Social Services) (No. 2) (1993), 21 C.H.R.R. D/415 (Ont. Bd. Inq.) at para. 50. The Tribunal also stated:
I entirely accept the view urged upon me by the Commission that where ethnic prejudice is a reality, but a secret, unadmitted reality, a board of inquiry should look very carefully at the proffered explanations for failure to hire or failure to promote members of ethnic communities who are otherwise qualified for a position, but are not hired or promoted. [at para. 54]
^[82] Abdolalipour v. Allied Chemical Canada Ltd. (1996), C.H.R.R. Doc. 96-153 at para.188 (Ont. Bd. Inq.).
^[83] See Smith v. Mardana Ltd. (Div. Ct.), supra, note 79 at paras. 15-16. Also, in McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 32 C.H.R.R. D/1 (Ont. Bd. Inq.), the complainant was moved to a less desirable posting for making a mistake that was quite common. No one else had been reassigned after making the same type of mistake.
^[84] In Nelson v. Durham Board of Education (No. 3) (1998), 33 C.H.R.R. D/504 (Ont. Bd. Inq.), the Tribunal found that taking away the complainant’s “release time,” time away from teaching to allow administrators to focus on administrative skills to prepare for non-classroom roles within the school board,
constituted direct discrimination: The unfavourable proposals of release time appeared to have been an effective tool to stifle the ambitions of a dedicated qualified teacher who, because of his race, was unwelcome in the upper echelons of the Durham School Board. [at para. 136]
^[85] In Nelson, ibid. at para. 131, the Tribunal found that an interviewer’s conduct during an interview was “egregious and created a climate of racial hostility, that was tolerated by other Durham Board officials.” The interviewer had turned his back to the complainant throughout the interview except to admonish the complainant for being “aggressive” in response to an interviewer’s oversight of his Masters degree.
^[86] In Smith v. Mardana Ltd., supra, note 79, the owner of the company had threatened to dismiss the complainant because of his strained relationship with an acting-manager. However, this relationship was tainted by the acting manager’s racist attitudes.
^[87] Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 (No. 4) (Ont. Bd. Inq.) aff’d (1999), 34 C.H.R.R. D/405 (Ont. Ct. (Gen. Div.)), Board of Inquiry’s order upheld except with respect to the issue of reinstatement (2001), 41 C.H.R.R. D/349 (Ont. C.A.), leave to appeal denied [2002] S.C.C.A. No. 69.
^[88] A landlord may discriminate by failing to carry out repairs for a single tenant or for failing to carry out repairs throughout a building that is predominantly rented to a racialized group:In my opinion, the utterances and conduct of Mr. Elieff as reported by Mr. Van Moorsel in the London Free Press created a poisoned environment. By implying that Cambodians did not deserve decent living conditions, he infringed the rights of Cambodians under s. 2(1) of the Code...because of race or place of origin, even though all other tenants who were not Cambodian were subject to the same deplorable conditions. [Ontario (Human Rights Commission) v. Elieff (1996), 37 C.H.R.R. D/248 at para. 16 (Ont. Gen. Div.)
^[89] For example, cooking odours have been the subject of two Tribunal decisions. In one case, the Tribunal found that South Asian tenants were denied an apartment because of stereotypes regarding cooking odours; Fancy v. J & M Apartments Ltd. (1991), 14 C.H.R.R. D/389 (B.C.C.H.R.). In another, the complainant was found to have cooked foods in her home that were an expression of her ethnicity and ancestry which produced odours. She experienced differential treatment when she was ordered to cease producing these odours or face eviction. The right to express and enjoy one’s ethnicity and ancestry was found to be central to one’s dignity. Moreover, the landlord was not found to have a reasonable and bona fide justification for its conduct; see Chauhan v. Norkam Seniors Housing Cooperative Association, 2004 B.C.H.R.T. 262.
^[90] Wattley v. Quail (1988), 9 C.H.R.R. D/5386 (B.C.C.H.R.); see also Grant v. Wilcock (1990), 13 C.H.R.R. D/22 (Ont. Bd. Inq.). In that case Mrs. Grant who was White went to view a cottage she and her husband were interested in purchasing. When Mr. Grant, who was Black, attended to view the cottage, the respondent said he was probably going to sell the cottage to his brother and that he would let the Grants know. Mrs. Grant phoned several times but did not receive a satisfactory answer regarding the cottage. Her mother phoned and was told that the cottage was still up for sale. The respondent told the mother that a man had been interested in purchasing it but he was Black and the respondent would not
sell to him.
^[91] For a discussion of racism in education see Racism in our Schools: What to Know About It; How to Fight It, Report prepared for the Canadian Race Relations Foundation (June 2000), online: www.crr.ca/en/Publications/ePubHome.htm. Also, with regard to educational issues for Aboriginal students, see Report of the Special Rapporteur on Indigenous People, supra, note 17.
^[92] Angeconeb v. 517152 Ontario Ltd. (1993), 19 C.H.R.R. D/452 (Ont. Bd. Inq.).
^[93] Refusing to hire someone because they are perceived as a “troublemaker” as a result of having made a previous human rights complaint against the respondent or other organizations, has also been found tobe discriminatory; see Abouchar v. Toronto (Metro) School Board (No. 3) (1998), 31 C.H.R.R. D/411 (Ont. Bd. Inq.). It could also constitute a reprisal under s. 8 of the Code.
^[94] Nelson, supra, note 85.
^[95] See P. Essed, “Everyday Racism: A New Approach to the Study of Racism” in P. Essed & D.T. Goldberg, eds., Race Critical Theories (Malden: Blackwell Publishers Ltd., 2002) 176 at 177 and 190. “The fact that it concerns repetitive practices indicates that everyday racism consists of practices that can be generalized.” at 177
^[96] It is important to note that it is very difficult to determine “objectively” the nature of everyday interactions between non-racialized and racialized persons. A variety of studies show that the perspectives of those who experience everyday racism are very different than that of White persons who have not themselves experienced these daily slights; see Henry, Tator, Mattis & Rees, supra, note 18 at 55 and 61. While the case law in this area is still in a state of development, it generally adopts an approach to discrimination that looks at the action or conduct from both a subjective and objective perspective. This analysis takes into account the claimants' or the groups' traits, history, and circumstances to determine whether a reasonable person or people comparably situated would find the treatment demeaning; see Pringle v. Alberta (Human Rights, Multiculturalism and Citizenship Commission) (2004), CHRR Doc. 04-430, 2004 ABQB 821 at para. 46; Gwinner v. Alberta (Minister of Human Resources and Employment) (2002), 44 C.H.R.R. D/52, 2002 ABQB 685 at para. 112, affirmed (2004), CHRR Doc. 04-151, 2004 ABCA 210, leave to appeal denied [2004] S.C.C.A. No. 342. However, only in rare cases is differential treatment based on a Code ground not discriminatory; see Pringle at para. 49. This may be particularly so where the differential treatment is based on “race” and related grounds.
^[97] Similar fact evidence has been used in a number of race cases. For example, in Nelson, supra, note 85, similar fact evidence concerning the treatment of a Black teacher was found to be supportive of the complainant’s testimony as the details of his experiences mirrored those of the complainant. In Dhillon v. F.W. Woolworth Ltd. (1982), 3 C.H.R.R. D/743 (Ont. Bd. Inq.), a complainant of “East Indian” ancestry alleged racial name calling by White co-workers and racial discrimination in the allotment of holidays, the distribution of workload and rates of dismissal. He was permitted to introduce evidence of co-workers of “East Indian” background who had also experienced racial name-calling and of the demotion of another worker of “East Indian” ancestry.
^[98] In finding that a co-worker’s perception of racism provided some evidence of discrimination, a Tribunal noted: It is widely accepted that discrimination has an invisible face. Those who discriminate usually fail to see that they are discriminating. This does not mean that it is invisible to others...It would be a mistake to reduce the process of adjudication to a contest between the perceptions on either side of the case. I nevertheless think that impressions, even mere impressions, may have some probative value. [Brooks v. Canada (Dept. of Fisheries and Oceans) (No. 2) (2004), CHRR Doc. 04-384, 2004 CHRT 36 at paras. 109 to 111.]
^[99] Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 (C.H.R.T.).
^[100] Fuller v. Daoud (2001), 40 C.H.R.R. D/306 at para. 84 (Ont. Bd. Inq.).
^[101] McKinnon v. Ontario (Minister of Correctional Services), supra, note 84, Naraine v. Ford Motor Company, supra, note 88, Smith v. Mardana, supra, note 79.
^[102] Naraine v. Ford Motor Company (1996), ibid.
^[103] Etienne v. Westinghouse of Canada Ltd. (1997), 34 C.H.R.R. D/45 (Ont. Bd. Inq.). The Board found that the complainant was repeatedly harassed by his co-workers because he is a Francophone and a Black person of Haitian origin.
^[104] Baylis-Flannery v. Walter DeWilde c.o.b as Tri Community Physiotherapy (No. 2) (2003), C.H.R.R.Doc. 03-296 (H.R.T.O.).
^[105] Dhanjal v. Air Canada, supra, note 100.
^[106] Dhillon v. F.W. Woolworth (1982), supra, note 98; Naraine v. Ford Motor Company of Canada (Ont.Bd. Inq.), supra note 88 at paras. 50 & 54.
^[107] Ghosh v. Domglas Inc. (No.2) (1992), 17 C.H.R.R. D/216 at para. 76 (Ont. Bd. Inq.).
^[108] See Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, 25 C.H.R.R. D/175; Quebec (Comm. Des droits de la personne) c. Deux-Montagnes, Comm. Scolaire, (1993), 19 C.H.R.R. D/1 (T.D.P.Q.); Jubran v. North Vancouver School District No. 44, (2002), 42 C.H.R.R. D/273, 2002 BCHRT 10. In Jubran, the Tribunal held that the School Board (i) had a duty to provide an educational environment that did not expose students to discriminatory harassment, (ii) knew that students were harassing another student, and (iii) was liable for failing to take adequate measures to stop that harassment. The B.C. Supreme Court quashed the Tribunal's decision on the basis that the harassment was not linked to a protected ground under the legislation, as the complainant did not identify as gay and his harassers did not perceive him to be gay. However, the B.C. Court of Appeal reversed the Divisional Court decision finding that the complainant was protected by B.C.'s human rights legislation regardless of whether he was gay, and regardless of whether his harassers perceived him to be gay. The Court stated that the focus of the inquiry ought to be on the effect of the harassment, rather than on the intent of the harassers. The Court of Appeal also held that the school board was liable for the discriminatory conduct of students and that the school board had failed to provide an educational environment free from discrimination: see North Vancouver School District No. 44 v. Jubran, [2005] B.C.J. No. 733 (C.A.).
^[109] In Dhanjal v. Air Canada, supra, note 100 at para. 209, the Tribunal noted that the more serious the conduct, the less need there is for it to be repeated and, conversely, the less serious it is, the greater the need to demonstrate its persistence.
^[110] Lee v. T.J. Applebee’s Food Conglomeration (1987), 9 C.H.R.R. D/4781 (Ont. Bd. Inq.).
^[111] Smith v. Mardana Ltd. (Ont. Div. Ct.), supra, note 79 at para. 24 and Naraine v. Ford Motor Company of Canada (Ont. Bd. Inq.), supra, note 88 at paras. 98 and 99.
^[112] See Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 29 C.H.R.R. D/35 (Ont. Bd. Inq.).
^[113] For a more detailed discussion please see the Commission’s Policy on Discrimination and Language (June 1996), online: www.ohrc.on.ca.
^[114] Section 12 of the Code states:
A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
^[115] Sexuality is sometimes intertwined with racism. Stereotypical and racist views may be held about
people’s sexuality based on their ethno-racial identity. See Baylis-Flannery v. DeWilde, supra, note 105. As mentioned in the section dealing with The History of Racism in Canada, this form of discrimination was promoted by laws which prohibited Chinese and Japanese men from employing White women. For a detailed discussion, see C. Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press, 1999) at 132-172.
^[116] This experience was described to the Commission during its Racial Profiling Inquiry.
^[117] Québec (Comm. des droits de la personne) v. Thibodeau (1993), 19 C.H.R.R. D/225 (Que. H.R.T.).
^[118] Tabar, Lee and Lee v. Scott and West End Construction Ltd. (1984), 6 C.H.R.R. D/2471 (Ont. Bd.Inq.).
^[119] Barclay v. Royal Canadian Legion, Branch 12 (1997), 31 C.H.R.R. D/486 (Ont. Bd. Inq.).
^[120] From C. Agocs, “Surfacing Racism in the Workplace: Qualitative and Quantitative Evidence of
Systemic Discrimination” ” (2004) 3:3 Canadian Diversity 25 at 25. Other definitions have been offered,
for example: ...practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics.... [from Action Travail des Femmes v. Canadian National (1984), 5 C.H.R.R. D/2327 (C.H.R.T.), aff’d (1987), 8 C.H.R.R. D/4210 (S.C.C.) [hereinafter Action Travail] at para. 33248] ...systemic discrimination...results from the unintended consequences of established employment systems and practices. Its effect is to block employment opportunities and benefits for members of certain groups. Since the discrimination is not motivated by a conscious act, it is more subtle to detect and it is necessary to look at the consequences or the results of the particular employment system. [from National Capital Alliance on Race Relations v. Canada (Health and Welfare) (1997), 28 C.H.R.R. D/179 (C.H.R.T.) [hereinafter NCARR] at para. 164.]
^[121] See Statistics Canada, Selected Income Characteristics online: www.statcan.ca.
^[122] See also the Report of the Special Rapporteur on Indigenous People, supra, note 17 for a more detailed discussion of the many indicators of historical and contemporary disadvantage among Aboriginal people in Canada: Economic, social and human indicators of well-being, quality of life and development are
consistently lower among Aboriginal people than other Canadians. ... Ever since early colonial settlement, Canada’s indigenous peoples were progressively dispossessed of their lands, resources and culture, a process that led them into destitution, deprivation and dependency... [at 2].
^[123] See Statistics Canada, Selected Income Characteristics, supra, note 122, and the Canadian Council on Social Development, Aboriginal Children in Poverty in Urban Communities: Social exclusion and the growing racialization of poverty in Canada (June 2003), online: www.ccsd.ca/pr/2003/aboriginal.htm>.
^[124] Adapted from C. Agocs, supra, note 121. Also, for a decision which considered numerical data, employment practices and organizational culture in finding systemic discrimination, see NCARR, supra, note 121.
^[125] Blake v. Mimico Correctional Institute (1984), 5 C.H.R.R. D/2417 (Ont. Bd. Inq.) at para. 20100. The Tribunal went on to say that the less there is of other evidence of discrimination, the greater the statistical disparity must be in order to make out a prima facie case (at. paras. 20129-20130). For a very helpful summary of general propositions from the Blake case, see Angeconeb, supra, note 93 at para. 28-29.
^[126] See British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 at 38 (in the context of gender) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at 880 (in the context of disability).
^[127] NCARR, supra, note 121 at para. 142.
^[128] Quereshi v. Central High School of Commerce (No. 3) (1989), 12 C.H.R.R. D/394 (Ont. Bd. Inq.).
^[129] NCARR, supra, note 121 at paras. 153-158 and 162.
^[130] Wong v. Ottawa Board of Education (No. 3) (1994), 23 C.H.R.R. D/37 (Ont. Bd. Inq.).
^[131] See for example, Wong v. Ottawa Board of Education, ibid. at para. 103-104.
^[132] In Action Travail, supra, note 121 the Supreme Court of Canada noted that systemic discrimination fosters the belief that the exclusion is the result of “natural forces,” for example, that women “just can’t do the job” (at para. 33249).
^[133] Kearney v. Bramalea Ltd. (No. 2) (1998), 34 C.H.R.R. D/1 (Ont. Bd. Inq.); Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 39 C.H.R.R. D/111 (Ont. Sup. Ct.).
^[134] Subsequent to the initial decision in Kearney, ibid., the Ontario government added section 21(3) and Regulation 290/98 to the Code which permit the use of income information in some circumstances. In subsequent decisions, Tribunals have grappled with the effect of these regulations. While income information can be used along with other considerations such as rental history and credit, the Regulation does not allow the use of rent-to-income ratios as the sole basis for refusing a tenant; See Vander Schaaf
v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 (Ont. Bd. Inq.) and Sinclair v. Morris A. Hunter Investments Ltd. (2001), 41 C.H.R.R. D/98 (Ont. Bd. Inq.).
^[135] There have been legal challenges to qualification rules for foreign trained doctors. In Jamorski v. Ontario (Attorney General) (1988), 64 O.R. (2d) 161 (C.A.), different internship requirements for graduates of unaccredited medical schools were found not to be an infringement of s. 15 of the Canadian Charter of Rights and Freedoms. However, in Bitonti v. British Columbia (Ministry of Health) (No. 3) (1999), 36 C.H.R.R. D/263 (B.C.C.H.R.) a Tribunal found that foreign-trained doctors were discriminated against on the basis of place of origin by a requirement of the College of Physicians and Surgeons of British Columbia that they have an additional year of post-graduate training in order to be eligible for registration.
^[136] A report by the Canadian Race Relations Foundation indicates that barriers are especially persistent for racialized people who are foreign-born. They face extensive inequities in income, employment and education within Canada. See Jean Lock Kuntz for Canadian Council on Social Development, Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income, Toronto: Canadian Race Relations Foundation, 2000 p. 13, 17, 19, 22, 24-26.
^[137] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, supra, note 127.
^[138] Ibid.
^[139] Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203 (Ont. Bd. Inq.). 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 complainant 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; at para. 63.
^[140] Ibid.
^[141] Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, Mayo v. Iron Ore Co. of Canada (2002), 43 C.H.R.R. D/65 (Nfld. Bd. Inq.).
^[142] Tribunals have also dealt with failures to implement remedial orders from prior human rights complaints. In Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No. 7) (2002), 45 C.H.R.R. D/61 (Ont. Bd. Inq.), the Tribunal found that the poisoned environment, which the remedial orders in its prior decision were intended to address, persisted. The respondent, at the highest levels, failed to stop the harassment of Michael McKinnon, an Aboriginal man, both before the prior decision and after it. When he complained about continuing harassment, he was met with refusals, delays, bias and unjustified findings against him. The Board of Inquiry found the handling of his
complaints to have been in itself retaliatory and a further infringement of the complainant's rights under
the Code. The Board issued new, or extensively rewritten, orders, including systemic remedies.
^[143] Naraine v. Ford Motor Co. of Canada (Ont. Bd. Inq.), supra, note 88.
^[144] Smith v. Mardana Ltd.(Ont. Div. Ct.), supra, note 79.
^[145] Mohammed v. Mariposa Stores Ltd. (1990), 14 C.H.R.R. D/215 (B.C.C.H.R.). See also Labour Arbitration decisions which have concluded that an employer must have procedures in place to deal with racial harassment of its staff by patrons. These procedures should indicate how staff are expected to respond to the harassment, ensure that serious and/or ongoing problems are brought to the attention of management and also that management takes appropriate steps to assess the situation and take remedial action; C.U.P.E., Local 79 v. Toronto (City) (1995), 1995 Carswell Ont 1840 (Ont. Arb. Bd.); Clarendon Foundation v. O.P.S.E.U., Local 593, [2000] L.V.I. 3104-6, 2000 Carswell Ont 1906, 91 L.A.C. (4th) 105 (Ont. Arb. Bd.).
^[146] Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 (Ont. Bd. Inq.). These factors assist in assessing the reasonableness of an organization’s response to harassment. A reasonable response by the organization will not affect its liability but will be considered in determining the appropriate remedy. In other words, an employer that has reasonably responded to harassment is not absolved of liability but may face a reduction in the damages that flow from the harassment.
^[147] For example, recognizing the significant disadvantage that was created by wartime measures targeting Japanese Canadians, on September 22, 1988 the Japanese Canadian Redress Agreement was signed. In the House of Commons, Prime Minister Brian Mulroney acknowledged the government’s wrongful actions, pledged to ensure that the events would never recur and recognized the loyalty of the Japanese Canadians to Canada. As a symbolic redress for those injustices, the government offered individual and community monetary compensation to Japanese Canadians. The government also committed to create a national organization that would foster racial harmony and help to eliminate racism, the Canadian Race Relations Foundation. However, efforts by other communities to obtain redress for government laws and policies that have created historical disadvantage have not been successful, see Mack v. Canada (Attorney General), supra, note 29.
^[148] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 64.
^[149] Action Travail, supra, note 121.
^[150] NCARR, supra, note 121.
^[151] See for example the remedial decisions in McKinnon v. Ontario (Ministry of Correctional Services (No.3) (1998), 32 C.H.R.R. D/1 (Ont. Bd. Inq.) and Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No. 7) (2002), 45 C.H.R.R. D/61 (Ont. Bd. Inq.), NCARR, supra, note 121 and Hendry v. Ontario (Liquor Control Board) (1980), 1 C.H.R.R. D/160 (Ont. Bd. Inq.).