By:     Wade Poziomka, Paul Champ & David Baker

Last week, the Supreme Court of Canada issued its decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 423. Since its release, some commentary on this decision has claimed that the jurisdiction of human rights tribunals is ousted in favour of labour arbitrators with respect to unionized employees.

While this may be the case for unionized employees in Manitoba, a careful review of this decision indicates this is likely not the case in other jurisdictions, including Ontario. The Court held that the mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising out of collective agreement, but it specifically recognized that an expression of legislative intent can still confer concurrent jurisdiction. Ideally this intent should be explicitly stated, however even absent specific language, the statutory scheme may disclose that intention. This is found at paragraph 33 of the decision, wherein the Court lists some statutory provisions by way of example.  The Court said,

[T]he mere existence of a competing tribunal is insufficient to displace labour arbitration as the sole forum for disputes arising from a collective agreement. Consequently, some positive expression of the legislature’s will is necessary to achieve that effect. Ideally, where a legislature intends concurrent jurisdiction, it will specifically so state in the tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention. For example, some statutes specifically empower a decision-maker to defer consideration of a complaint if it capable of being dealt with through the grievance process (see, e.g., Human Rights Code, R.S.B.C. 1996, c. 210, s.25; Canada Labour Code, ss. 16(1.1) and 98(3), Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss 41 and 42). Such provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process.

The key difference between the Manitoba legislation and human rights statutes in other jurisdictions is the existence of an explicit ‘deferral to another proceeding’ provision. This is highlighted by Justice Karakatsanis’ dissent in Horrocks. The main point of departure for Justice Karakatsanis was her view that section 29(3) of the Manitoba Human Rights Code could and should be broadly interpreted as a “deferral” provision, signaling legislative intent to confer concurrent jurisdiction, even though it did not use same “deferral” language as other statutes.  Justice Karakatsanis found in paragraphs 118-119 of the decision that section 29(3) of the Manitoba Code may be “less explicit than the deferral clauses found in Ontario, British Columbia, and the CHRA”, but that it should be interpreted in the same way. Obviously, and unfortunately for victims of discrimination in Manitoba, the majority of the Court did not agree.

Prior to the Horrocks decision, it was widely accepted in Ontario that the Human Rights Tribunal of Ontario had concurrent jurisdiction with labour arbitrators for human rights disputes arising out of unionized workplaces. To suggest that has changed post-Horrocks, in our view, is simply wrong.

Like the statutes and sections referred to by the majority, and as expressly referenced in the dissent, the Ontario Human Rights Code has a provision which specifically contemplates the deferral of an application. Sections 45 and 45.1 state:

The Tribunal may defer an application in accordance with the Tribunal rules.

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application..

In our view, the statutory scheme for human rights in Ontario demonstrates legislative intent of concurrent jurisdiction. Most significantly, the Ontario Court of Appeal in Ontario (Human Rights Commission) v Naraine, 2001 CanLII 21234, (2001), 209 DLR (4th) 465 (ON CA) held that the Ontario legislature intended to confer concurrent jurisdiction over human rights matters on labour arbitrators and the human rights tribunal. Referring to the deferral provision in the Ontario Human Rights Code at the time as contemplating concurrency through “synchronized discretion” with labour arbitrators, the Court of Appeal observed that this was evidently the legislature’s intent.  The Court of Appeal highlighted the policy reasons behind concurrency, observing that “there may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union’s and not the employee’s.”  The Court of Appeal added that assigning exclusive jurisdiction to labour arbitrators in Ontario could “render chimerical the rights of individual unionized employees.”

We pause to note that the Ontario Court of Appeal’s judgment in Naraine was written by Abella J.A., as she then was, before she was elevated to the Supreme Court of Canada. Since Justice Abella joined in the majority decision in Horrocks written by Justice Brown, it must be assumed that Abella J was not agreeing to overturn herself in Naraine.

Human rights are quasi-constitutional rights belonging to individuals. Should the Human Rights Tribunal of Ontario interpret Horrocks to deny persons in Ontario access to the Tribunal to seek redress for alleged human rights violations, that would effectively strip the individualized nature of these rights from unionized employees.

Grievances are owned by unions, not individuals. Unions can choose whether or not to advance a grievance for a number of reasons, and even when a grievance is advanced, can decide whether to include allegations of human rights breaches or not. The individual has little control over that process, short of the ability to file a complaint against a union for unfair representation. While some unfamiliar with labour law may believe that this is a legitimate option, in practicality, very few unfair representation complaints have been successful because the case law in that area has afforded unions broad discretion in when to advance grievances with very few exceptions.

While unions may have good reason not to advance a grievance where there are legitimate human rights issues at play, we must also recognize that the quasi-constitutional nature of human rights should also afford individuals to be permitted to have those allegations determined by an expert human rights body – the Human Rights Tribunal of Ontario.

While Horrocks may appear definitive at first glance, a careful reading indicates that it has not changed the legal status quo in other provinces.  

Zero Tolerance

2018 has been a significant year so far at the Human Rights Tribunal of Ontario in terms of remedies. Over the past decade or so, damages for compensation for injury to dignity, feelings and self-respect, have traditionally been between $10,000 and $20,000. The high water mark was less than $50,000. Then on May 22, 2015, Vice-Chart Mark Hart issued decision where he awarded $150,000, raising the bar on these damages substantially (click here to read a blog I wrote shortly after O.P.T. v. Presteve Foods Ltd. was released).

After Presteve was released, lawyers, adjudicators and participants in the human rights system were left wondering whether it was an outlier decision given the serious facts, or whether this marked a significant shift in the quantum of awards more generally.

Throughout 2016 and 2017 the general damage awards remained relatively stagnant, creeping up slightly toward a $20,000 average.

Finally, we get to 2018. On January 24, 2018, Vice-Chair Dawn Kershaw (no longer an adjudicator at the HRTO) released A.B. v. Joe Singer Shoes Limited,[i]  and on February 26, 2018, Vice-Chair Maureen Doyle released G.M. v. X Tattoo Parlour.[ii] I will summarize each of these decisions briefly.

A.B. v. Joe Singer Shoes Limited

The Applicant in this case was a single mother who not only worked for Joe Singer Shoes, but also lived in an apartment located above the store. The Applicant made a number of serious allegations against Mr. Singer, including that he made fun of her language skills and her body, made inappropriate comments about her place of origin, and sexually assaulted and harassed her over several years.

Mr. Singer denied the allegations and the case turned on credibility – who did the Tribunal believe on a balance of probabilities? The Tribunal preferred the evidence of the Applicant, finding that she was sexually harassed and solicited not only at work in the store, but also in her apartment. Vice-Chair Kershaw stated at paragraph 143:

I find on a preponderance of probabilities that Mr. Singer sexually harassed and assaulted both in her apartment and in his office which as part of her place of employment. The applicant was vulnerable given she had no family here, was single, lived above the store and English was not her first language. I find that Mr. Singer told the applicant she was stuck, that he had money and would get the best lawyers if she reported him while she would have to rely on community lawyers, and that she stayed because she felt she had no option.

The Tribunal ordered $200,000 in damages for injury to dignity, feelings and self-respect, becoming the highest general damage award ever awarded by the Tribunal.

G.M. v. X Tattoo Parlour

The Applicant in this case was a fifteen year old intern who worked in a tattoo parlour. This was her first job and she aspired to be a tattoo artist in the future. The Applicant alleged that the inappropriate behaviour began as sexual conversation and after two weeks included inappropriate touching and then a solicitation to engage in sex in exchange for money and a tattoo.

The Applicant pled guilty to three criminal charges, including one for sexual assault.

The Tribunal found or the Applicant, noting at paragraph 57:

…the Applicant’s vulnerability was marked. As a minor, working at her first job, she was extremely vulnerable, and I find that this was compounded by the fact that her boss, the individual respondent, was a trusted family friend.

Vice-Chair Doyle stated:

…I am persuaded that this applicant experienced in a profound way, humiliation, hurt feelings, a loss of self-respect, a loss of dignity, a loss of self-esteem and confidence following the events at the tattoo parlour…Prior to her experience with the respondent, she had a love of drawing, and the joy she derived from it has now been taken away from her. She was previously excited about the prospect of a career using her art, in the form of tattoos, considering it to be an honour to have someone commit to wearing her art on their body. She no longer has excitement, or even interest, in a field she previously identified as desirable and one that she wished to pursue as a career…While many teenagers may be expected to change their minds, even several times, regarding their future career choices, the applicant did not have the opportunity to change her mind through a process of discernment: rather, she had her dream taken away from her by the respondent’s actions.

Vice-Chair Doyle ordered $75,000 as compensation for injury to dignity, feelings and self-respect. The award was made jointly and severally against both the tattoo parlour and the owner as an individual (meaning that if the business went bankrupt, the owner would also personally be liable for damages).

Take Away

General damage awards are rising. We are seeing a significant increase in damages for sexual harassment and sexual solicitation. It’s about time. While these are significant award relative to past awards from the Tribunal, they are still too low from a moral perspective. Anyone who believes $75,000 is a fair number to compensate a teenager working in her first job who was sexually harassed and assaulted by her boss (also a family friend), needs to re-evaluate. Most people would not agree that $200,000 is sufficient to compensate an individual who has repeatedly experienced sexual assault over a multi-year period. While these damage awards are exciting in that they signal a substantial increase in the quantum of awards coming out of the Tribunal, they are simply not sufficient in relation to the serious conduct that occurred. Having said that, in G.M., it should be noted that the Applicant was only seeking $75,000 in general damages and Vice-Chair Doyle awarded what was sought.

Another unfortunate fact is that general damage awards in cases involving discrimination on the basis of disability (the majority of cases before the Tribunal) are not markedly increasing. High outlier decisions focusing on sexual harassment and solicitation are positive, but what would be more effective for Ontarians would be an increase in general damage awards across cases involving all of the Code­-grounds to prevent exactly what the Divisional Court has previously cautioned against – that general damage awards should not be so low that they are a mere license fee for employers to discriminate.

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[i] A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (Vice-Chair Dawn Kershaw)

[ii] G.M. v. X Tattoo Parlour, 2018 HRTO 201 (Vice Chair Maureen Doyle)

Smart keyboard with personal activities symbol set. Personal responsibility, safety, questions, business and access concept.

The Ontario Human Rights Code’s preamble states its purpose, in part, is “the creation of a climate of understanding and mutual respect for the dignity and worth of each person”. The Code is not intended to “punish” a person or company that engages in discrimination. Rather it is remedial or restorative, aiming to compensate the person who has experienced discrimination. The overriding goal of the Code is ultimately the elimination of discrimination within the Province of Ontario.

When an individual who believes she or he has experienced discrimination is completing an application, it is important to carefully consider who will be named as respondents. It is important to applicants that the perpetrators of discrimination are held to account – whether they are individual or an organization. A finding of discrimination will often provide validation to an applicant and re-affirm his or her value as a person, as well as their dignity and sense of belonging. In these cases, individuals who are alleged to have engaged in discrimination should be named along with the company.

Naming Individual Respondents – Two Scenarios

 

Over the past few years, a troubling trend has emerged in the Human Rights Tribunal of Ontario’s case law relating to the naming and removal of individual respondents. To fully flush this out, it is important to distinguish between two very different scenarios:

  1. Betty files an application against her employer, a regional municipality. In addition to naming the municipality as a respondent, she also names the mayor, the deputy mayor and the COO – all of whom were not involved personally with the facts that give rise to her human rights application.
  1. John files an application against his employer, a regional municipality, and also against his immediate supervisor who regularly made inappropriate remarks and slurs toward John because of his race.

Scenario one above happens all too often and is a legitimate concern. Naming individuals who have nothing to do with the facts of an application unnecessarily adds to the complexity of a proceeding and is inappropriate.

Scenario two, however, is markedly different. John should be permitted to pursue an application against his immediate supervisor – the individual who engaged in conduct that was demeaning and derogatory toward John on the basis of his race. Of course, the employer is also responsible for John’s conduct by virtue of section 46.3 of the Code which imputes liability to a corporation for the employee’s actions and omissions done in the course of his employment.

The Tribunal Goes Too Far to Remedy Inappropriate Naming of Individual Respondents

 

In an effort to counter the inappropriate naming of individual respondents (such as in scenario 1, above), the Tribunal has gone too far. Its jurisprudence now encroaches into the territory of appropriately named individual respondents. Consider the following:

In Delargie v. St. Joseph’s Healthcare Hamilton (2015),[i] Vice-Chair Alison Renton considered a request from the respondents to remove an individual respondent who was named along with the organizational respondent. The Tribunal specifically noted that the individual respondent’s conduct was “central to this case”; however, it removed the individual respondent nonetheless, stating at paragraph 8:

In the circumstances of this case, the individual conduct of the personal respondent is central to this case. While the organizational respondent has not explicitly stated that it would assume liability for the personal respondent in the event that Code violations were found, a joint Response was filed on behalf of both respondents, and the respondents submit both that the personal respondent was not acting outside the scope of her authority and that the factors set out in Persaud, above, support their request to remove the personal respondent. Implicitly the organizational respondent has represented that it will assume liability for the personal respondent’s actions. [bolding added]

The reasoning of the Tribunal in Delargie appears to be – the individual respondent is alleged to have engaged in actions that on their own may be a violation of the Code; however there is an organization  with the financial capacity to assume liability for the employee’s actions, such that we should remove the individual who may have engaged in discriminatory conduct. What happened to accountability? What message does it send when the Tribunal will simply release individuals accused of discrimination because they work for a company that has money? Is the overarching aim of the Code being furthered by this practice? When did section 46.3 of the Code (which imputes liability on the employer for the employee’s actions) become sufficient to release the individual employee?

In Breau v. Halton (Regional Municipality) (2016),[ii] the Applicant raised these principles when opposing a request to remove the individual respondents. Specifically, in opposition to the request, the Applicant stated:

The Code is remedial and restorative – it is not punitive. The Applicant is not requesting that the personal respondents remain a part of the Application for punitive reasons, but rather because the Applicant, and society at large, have an interest in ensuring that remedies are ordered against perpetrators of discrimination in order to achieve one of the primary purposes of the Code, the elimination of discrimination…

There is a troubling trend appearing recently in Tribunal jurisprudence that appears to simply release personal respondents should the corporate respondent accept liability on their behalf and agree to cover any remedy ordered. In the Tribunal’s search for efficiency, it seemingly, in some cases, fails to give credence to the remedial nature of the Code and something is lost in that process. Individuals should be held to account for their independent, discriminatory actions. In this case, the personal respondents should not be removed.

Again, the Tribunal removed the individual respondents, stating at paragraph 14:

…There is an organization respondent (the Regional Municipality of Halton) in the proceeding that is alleged to be liable for the same alleged conduct as them, no issue has been raised to the organization respondent’s deemed or vicarious liability for their alleged conduct, there is no issue as to the ability of the organization respondent to respond to or remedy any infringements of the Code, and no real prejudice would be caused to the applicant or any other party as a result of removing them as respondents to the Application. The reasons that the applicant raised to continue the proceeding against the [individual respondents] have some merit, but I do not agree that they are sufficiently compelling to continue the proceeding against them…

If we hope to reduce discrimination in Ontario, holding individual perpetrators of discrimination accountable for their actions is important. If we hope to provide redress to those who have experienced discrimination, allowing them to advance their claim against each party who perpetrated the discrimination is important. If the perpetrator simply becomes a witness to the process, something meaningful for an applicant is lost.

I recognize the Tribunal wishes to eliminate the number of respondents to ensure the hearing does not become unnecessarily complex. Proceeding against the individuals who are alleged to have individually perpetrated the discrimination, alongside the organizational respondent if there is one, is necessary if we hope to prevent discrimination and provide meaningful redress.

Another practical consideration is that organizational respondents may go bankrupt. Without an individual respondent, some applicants may find themselves without any potential for compensation.

Steps in the Right Direction?

 

The same arguments put forward in Delargie were raised before the Tribunal recently in Nakazi v. Bowland Dental Laboratories (2017).[iii] In an interim decision, Vice-Chair Laurie Letheren refused to remove the individual respondent, stating:

Although there are two corporate respondents to this Application, there remains a possibility that the Tribunal could find that [the individual respondent] was personally liable for his own conduct which amounted to a breach of the Code…it remains potentially open to the Tribunal to make findings of liability and require monetary remedies specifically from the personal respondents for their actions if it was to find that these actions were discriminatory.[iv]

This ruling may seem narrow, in that the Tribunal would only retain an individual respondent where there is a possibility that liability may fall outside of the vicarious liability provision in section 46.3 of the Code. I do not believe this is what the adjudicator in this decision meant to imply because she then went out to cite the Divisional Court in  Human Rights Commission v. Farris (2012),[v] where that Court, stated:

The fact that a corporate respondent may also be jointly and severally liable for the conduct of employees is not a basis to insulate the employees from personal liability…The purpose of s. 46.3 of the Code is to confirm the parallel statutory liability of corporations for the actions of their employees, not to replace it.

The Divisional Court goes on to explicitly state in Farris that one of the “fundamental principles of human rights law” is:

…a finding of corporate liability is not meant to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code.

Unfortunately, to date, the Divisional Court’s guidance on this issue has not been consistently followed by the Tribunal.

Conclusion

 
Hopefully, we are seeing a reversal of the Tribunal’s trend to remove individual respondents where an organization is also named as a respondent.

Future applicants to the Tribunal should give thought to whether individuals have personally engaged in behaviour which could be a violation of the Code – if they have, they should be named as respondents. The inappropriate naming of chief executive officers, mayors, chiefs of police, etc, who do not have personal involvement in the facts giving rise to the application, should be avoided. It is time to bring a principled approach back to who will be held to account for discrimination.


[i] Delargie v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1329

[ii] Breau v. Halton (Regional Municipality), 2016 HRTO 1055

[iii] Nakazi v. Bowland Dental Laboratories, 2017 HRTO 1204

[iv] It should be noted that there were also concerns about the ability of one of the organizational respondents to satisfy a remedy that may be ordered.

[v] Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.)