Section 8 of the Code protects people from reprisal or threats of reprisal.[146] A reprisal is an action, or threat, that is intended as retaliation for claiming or enforcing a right under the Code.
People with psychosocial disabilities may try to enforce their Code rights by filing a grievance against an employer, making an application at the HRTO, or making an internal discrimination complaint to a service provider, housing provider, or to their employer. However, there is no strict requirement that someone who alleges reprisal must have already made an official complaint or application under the Code.[147] Also, to claim reprisal, a person does not have to show that their rights were actually infringed.[148]
The following will establish that someone experienced reprisal based on a Code ground:
- an action was taken against, or a threat was made to, the claimant
- the alleged action or threat was related to the claimant having claimed, or trying to enforce a Code right, and
- there was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right.[149]
Example: A bartender, who had depression and had experienced various allegedly discriminatory acts at her workplace, complained to her employer that she had been discriminated against. Shortly thereafter, the bartender received notice that her employer wanted to talk to her about complaints made against her (most of which could not be substantiated) and concerns about missing money (which she had never been suspected of being responsible for before). The HRTO found that the “respondents’ demand for a meeting was an intentional threat of retaliation because [the applicant] had claimed and enforced her rights under the Code.”[150]
People associated with persons who have complained about discrimination are also protected from discrimination and reprisal.[151]
[146] Section 7(3)(b) of the Code also prohibits reprisal for rejecting a sexual solicitation or advance, where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
[147] Noble v. York University, 2010 HRTO 878 at paras. 30-31, 33-34 (CanLII).
[148] Ibid. See also Bertrand v. Primary Response, 2010 HRTO 186 (CanLII).
[149] Noble v. York University, supra, note 147 at paras. 30-31.
[150] Knibbs v. Brant Artillery Gunners Club, supra, note 65 at para. 156.
[151] Ibid.