Human Rights Legislation - Canada
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Unlike the United States, human rights legislation in Canada is
generally created by each Provincial legislature and is contained
within a single statute. Typically, provincial human rights legislation
is applicable to the employees who work within that province. However,
it should be noted that federal human rights legislation also exists.
Federal human rights legislation, or the Canadian Human Rights Act,
is also contained within a single statute and applies to employees
working for federally regulated employers or service providers.
The Ontario Human Rights Code
is representative of the human rights legislation enacted in each
Province and Federally and serves as an example of the prohibitions
placed on employers across Canada. However, human rights legislation
does vary by Province, and the legislation applicable to the Province
in question should be consulted in each case. A competent lawyer
familiar with the human rights legislation of the particular
jurisdiction should be consulted in any case.
Discrimination or Harassment in Employment
The Ontario Human Rights Code (the "Code") binds every employer regardless of its size, the industry in which it operates, or its public or private sector status. The Code protects employees from discrimination in the provision of services, goods, and facilities and employment.
The Code provides that every person has a right to equal treatment with respect to employment without discrimination
on the basis of his or her race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record
of offences, marital status, same-sex partnership status, family status
or disability.
The prohibition against discrimination on the basis of citizenship does
not extend to a situation where Canadian citizenship is a requirement,
qualification or consideration imposed or authorized by law.
The Code provides that every person who is an employee has a right to freedom from harassment
in the workplace by the employer or agent of the employer or by another
employee because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status,
same-sex partnership status, family status or disability. The
protection from harassment includes protection from sexual harassment.
"Harassment" is defined as engaging in a course of vexatious comment or
conduct that is known or ought reasonably to be known to be unwelcome.
The definition of "sex" does include the status of being pregnant.
Employers should note that most Canadian provinces have legislation
that provides for the right to maternity and parental leave where an
employee becomes a parent.
In Ontario, the term "age" has been defined as being 18 years old or
more, but less than 65 years old. Therefore, in Ontario, employees who
are younger than 18 years old, or 65 years old or older, are not
protected by the Code. Prior to 2007, the Code also used to specifically exclude those 65 years of age and older. This amendment to the definition of “age” has effectively put an end to mandatory retirement in Ontario in all but the rarest of circumstances (where age is deemed to be a “bona fide occupational requirement”). In fact, as of January 2013, New Brunswick is the only Canadian jurisdiction where mandatory retirement has not been abolished.
A "record of offences" is defined as a conviction for an offence in
respect of which a pardon has been granted (and has not been revoked)
or an offence in respect of any provincial enactment, such as the Highway Traffic Act or Occupational Health and Safety Act.
"Marital status" has been defined to mean the status of being married,
single, widowed, divorced or separated, and includes the status of
living with a person of the opposite sex in a conjugal relationship
outside marriage. This includes same-sex relationships.
"Family status" has been defined to mean the status of being in a parent and child relationship.
The term "disability" has been defined to include both mental and physical disabilities, as
well as an injuries or disabilities for which benefits are or were
claimed or received under the Workplace Safety and Insurance Act (formerly called the Workers' Compensation Act). Alcoholism and drug dependency are considered to be disabilities which warrant protection under the Code.
As of June 2012, the Code now provides protection against discrimination on the basis of “gender identity” and “gender expression”. While these terms are not defined in the Code, they are intended to encompass transsexual, transgender and intersex persons, cross-dressers and other people whose gender identity or expression is, or is seen to be, different from their birth-identified sex. A person’s gender identity is different from their sexual orientation, which is also protected under the Code.
Types of Discrimination
Discrimination may be intentional or unintentional, and has also been
categorized as direct or indirect. Indirect discrimination is often
referred to in Canada as "adverse effect discrimination" or "adverse
impact discrimination." It is very similar to the American concept of
"disparate impact" discrimination.
It is important to note that as a result of the decision of the Supreme Court of Canada in British Columbia (Public Service Employees Relations Commission) v. B.C.G.S.E.U.,
[1999] 3 S.C.R. 3, the distinction between direct and indirect
discrimination is now irrelevant with respect to the defences available
to an employer for breaching human rights legislation. Discrimination,
regardless of its nature or type, will now be treated in the same
manner by tribunals and the courts. Previously employers could defend
against direct and indirect discrimination differently; however, these
distinctions have now been eliminated.
Harassment Policy
Every employer should have a harassment policy in place in order to
address complaints of harassment in the workplace. A harassment policy
should also set out how any investigation into harassment will be
carried out.
A complete review of the potential contents of a harassment policy is
beyond the scope of this discussion; however, at a minimum, a
harassment policy should define what constitutes harassment and should
provide for a complaint and investigation procedure where an allegation
arises. The policy should also set out what type of discipline will be
levied against the harasser if the complaint is substantiated.
Harassment policies often provide that an employer will investigate an
allegation of harassment even where the complainant expressly states
that they wish no investigation to occur. An employer will conduct an
investigation against the wishes of a complainant in order to establish
that it has been duly diligent in correcting the conditions leading to
harassment in the workplace.
The existence of a harassment policy and a timely investigation of a
complaint of harassment may result in an employer avoiding liability
where an employee complains he or she has been harassed. Furthermore,
an established (and enforced) harassment policy may assist an employer
to defend a claim by an employee that they are employed in a hostile
work environment.
Complaints Procedure
Canadian courts have held that they are without jurisdiction to hear an action based solely on an allegation of a breach of the Code. A breach of the Code on its own does not create a civil cause of action; there is no independent tort of discrimination in Canada.
In most jurisdictions, complaints proceed through provincially-operated Human Rights Commissions or, alternatively, are made directly to a provincially-regulated Human Rights Tribunal.
In jurisdictions where a Human Rights Commission is involved in the complaints process, investigators are typically first assigned by the Commission to investigate and report on the complaint. If the Commission decides to proceed with a claim, it is put before a Board of Inquiry, which has jurisdiction to finally determine the matter and make orders. This process is quite different than the EEOC, which may refer a human rights type claim to a trial court. There is no such process in Canada.
In Ontario, the human rights system recently converted to a “direct access” model where complaints are made directly to the Human Rights Tribunal. Whereas under the predecessor system, complaints would be vetted through the Human Rights Commission before proceeding to a hearing before the Human Rights Tribunal, the Commission’s role in this regard has now been abolished.
Now, in Ontario, the parties to a hearing before the Human Rights Tribunal are the the complainant (sometimes represented by a provincially-funded legal representative from the Human Rights Legal Support Centre), the employer, any individual alleged to have infringed a right, anyone whom the Tribunal believes should be a proper party, and, where it wishes to intervene or bring a case in the public interest, the Human Rights Commission. The Tribunal is given a broad remedial jurisdiction to order the employer to do what it considers necessary to remedy any breach of the Code and can make prospective orders over which it may retain jurisdiction to ensure compliance. It once was the case in Ontario that, given the backlog of cases, it would take an average of almost five (5) l years for a case to proceed from the filing of a complaint to a decision from the Tribunal. With the recent changes to the human rights regime in Ontario, however, this timeframe has been reduced to just under two (2) years on average.
If one of the parties is dissatisfied with the Tribunal’s decision, it may appeal to the Divisional Court of Ontario. Appeals from the Divisional Court of Ontario are made to the Court of Appeal and ultimately to the Supreme Court of Canada, if leave is granted to do so.
Duty to Accommodate
Where an employee has a disability, an employer is required, to the
point of undue hardship, to accommodate that employee so that they can
perform the essential duties of their position. In fact, not only the
employer, but the employee and the trade union (if any) must
participate in the accommodation process.
The legal limits on the duty to accommodate continue to develop on a case by case basis.
Remedies
The Code contains a very broad remedial jurisdiction, including the right to issue an award of damages. It is fair to say that damage awards in Canada will not approach the levels seen in the United States, however. While, in Ontario, there is a no longer a legislated limit on the dollar amount that can be awarded for damages for mental anguish and while the Tribunal has now been specifically empowered to award monetary damages for “injury to dignity, feelings and self-respect”, all indications suggest that damages awards have nonetheless not approached levels seen in the United States. Damages may be, and routinely are, awarded for any losses arising out of the infringement, including lost wages.
The Code also permits the Human Rights Tribunal to order a party to do anything that the party ought to do to achieve compliance with the Code. Examples of non-monetary awards that have been made include orders to post notices in the workplace, to require affirmation action programs to be instituted, and to create harassment policies.
While a party is not permitted to commence an action in court when his or her claim is based solely on an infringement of the Code (in which case the party must bring the application before the Human Rights Tribunal), the Code specifically allows a party to obtain damages for a breach of the Code in a civil action when the action is based on other grounds, for example, wrongful dismissal. This includes compensation for “injury to dignity, feelings, and self-respect”.
Legislative Provisions
The provisions of the Code referred to above, include:
5. (1) Employment -- Every person has a right to equal treatment
with respect to employment without discrimination because of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
5. (2) Harassment in employment -- Every person has a right to
equal treatment with respect to employment without discrimination
because of race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences,
marital status, family status or
disability.
7. (2) Harassment because of sex in the workplace -- Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
7. (3) Sexual solicitation by a person in position to confer benefit, etc. --Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to
confer, grant, or deny a benefit or advancement to the person where the
person making the solicitation or advance knows or ought reasonably to
know that it is unwelcome; or
(b) a reprisal or threat of reprisal for the rejection of 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.
[ Canadian Legal Guide Table of Contents ]
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