Reprisal – Employers Cannot Reprise Against Employees for Raising Human Rights

Posted: July 20, 2013 in Reprisal
Tags: , , , ,

Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

Section 8 of the Ontario Human Rights Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute or participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

Employers cannot reprise against an employee for asserting their human rights in the workplace, refusing to infringe another employee’s human rights or filing an application with the Tribunal alleging discrimination.

The prohibition against reprisal is very important; otherwise employers could simply terminate employees who claim their right leading to a “chilling effect” on human rights across the province. The Tribunal recognized this in Noble v. York University[i], where it stated:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation.

An employee who alleges discrimination in the workplace is still protected by section 8 of the Code even if the initial allegation of discrimination is not substantiated. Section 8 is engaged when the treatment of an employee is at least in part for contacting the human rights commission, legal support centre or a lawyer, or threatening to do so.[ii] Employers must tread with caution when an employee raises human rights issues in the workplace.

The Test

In order to successfully argue a violation of section 8 of the Code an Applicant must satisfy the following three-part test:

  1. There was an action taken, or threat made, to the Applicant;
  2. The alleged action or threat is related to the Applicant having claimed or attempted to enforce a right under the Code, and
  3. There was an intention on the part of the Respondent to retaliate for the claim or attempt to enforce said rights.[iii]

In order for an Applicant to successfully argue reprisal, he or she must demonstrate that “a factor in the respondent’s behaviour was an intention to retaliate against the applicant for having asserted [his or] her Code rights”.[iv]

Proving the Respondent’s intention is often difficult for Applicants. In Jones v. Amway of Canada Ltd.[v] the Board of Inquiry stated that an inference of intention to retaliate can be established, on a balance of probabilities. Prove beyond a reasonable doubt is unnecessary. A negative action taken against an Applicant, who has raised his or her rights, in the absence of another valid explanation, will likely be sufficient to establish the inference of intent.

END NOTES


[i] [2010] O.H.R.T.D. No. 841

[ii] Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 at paragraph 176.

[iii] The test is set out and discussed further in Noble, Supra note 1.

[iv] Zavarella v. Antonucci, 2013 HRTO 647

[v] [2001] O.H.R.B.I.D. No. 9

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