figur gleichberechtigung

Vanderputten was hired by Seydaco Packaging Corp. as a general labourer in 2003. After working for Seydaco for a number of years, Vanderputten was accepted into the gender identity clinic at CAMH and began her transition from living as a man to living as a woman. Vanderputten later changed her first name to Maria, underwent hormone treatment followed by genital reconstruction surgery.

As Maria was transitioning, her coworkers took notice, and she was subjected to harassment in the workplace. Employees at Seydaco changed into work uniforms prior to the start of their shift. Maria asked management to modify her shift hours so she could change privately, without her male colleagues present, who would often make inappropriate comments to her. Seydaco refused her request. The Tribunal stated at paragraph 70:

Seydaco failed to consider, explore, or implement any solutions that would have allowed the applicant privacy while changing, despite the fact that she told them about the problems she was experiencing…

At the very least this amounts to a violation of the procedural component of the duty to accommodate. In a 47,000 square foot plant, it’s highly unlikely Seydaco could not have arranged for Maria to change, away from her male colleagues. Seydaco failed to understand Maria’s reality. It insisted that Maria would be treated as male until her transition was completed and she was able to provide medical verification that she was female. Associate Chair David A. Wright, as he then was, found that Seydaco had discriminated against Maria, stating at paragraph 66:

Insisting that the applicant be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the applicant’s needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity. For non-transferred people, their identity will reflect the sex assigned at birth based on their genitals. However, for transferred people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.

The Tribunal ordered that Seydaco pay $22,000.00 in general damages to Maria, lost wages for a period of 8 months, and further ordered that Seydaco obtain an expert, at its own expense, to develop and implement a human rights policy, as well as train all management employees on how to administer the policy. In determining the appropriate length to award lost wages for, the Tribunal stated at paragraph 93:

In deciding how long lost wages should in order to put the applicant in the position she would have been had the discrimination not occurred, I take into account the fact that she had a discipline record that may have led to further discipline unconnected with prohibited grounds, the applicant’s seven years of services (with a brief gap), the notorious fact that in 2010 the economy was experiencing a downturn, and the fact that at the time she was dismissed she was undergoing the process of sex reassignment, which would have made finding a job harder, given general prejudice in society against transgendered persons.

Associate Chair Wright recognized, quite correctly, that discriminatory attitudes at large impact Trans persons’ ability to obtain alternative employment. The length of time that Maria would be provided lost wages for was increased due to this troubling reality. As Trans issues gain popularity and more cases make their way before courts and tribunals, we can only hope that employers will deal with issues that may arise respectfully and sensitively, ensuring that all employees in Ontario are able to work safely and with dignity, regardless of gender identity. In the meantime, until discriminatory attitudes are eliminated, the HRTO should continue to deal harshly with ignorant and insensitive employers.

CASE CITE: Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977

See No Evil

It is very common for Applicants to settle their Application prior to a Hearing before an adjudicator. Applicants choose to settle for a number of different reasons. Very rarely however do applicants believe the settlement adequately compensates them for their losses (economic losses and pain, humiliation, and loss of dignity). Rather they settle for a variety of other reasons, including:

  • Inability or unwillingness to “re-live” the events giving rise to the Application;
  • The length of time it takes to get to the Hearing can deter Applicants who want to “move on” in their life and put the events behind them;
  • Health issues;
  • Applicants often have concerns with the fact that Tribunal decisions are made public and published on the internet at CanLII. Potential employers in the future may search the internet and discover that Applicants have commenced a human rights proceeding in the past against a previous employer and decide  not to hire them (this is a legitimate concern because such decisions by prospective employers are often very difficult to prove, even though a decision not to hire an employee on the basis of a previous human rights application however would constitute reprisal contrary to section 8 of the Code), and
  • Risk-benefit analysis (Applicants are often in a poor financial situation following discrimination and if they are unable to prove their case before the Tribunal they will not receive any monetary award – A bird in the hand is worth two in the bush or so the old saying goes).

Applicants make significant sacrifices, both economically and emotionally, when deciding to settle. There is frequently an economic power imbalance between Applicants and Respondents. For many Applicants, they cannot afford to wait for or go through a hearing. The same cannot often be said for Respondents. Recognizing the particular vulnerability of those who have alleged discrimination, it is very important that Applicants have confidence that the settlement entered into will be honoured by the Respondent or the Tribunal will intervene appropriately.

There have been a line of cases recently, where Respondents have breached the terms of settlement. Most often, the Respondent has refused to pay or has delayed payment. While many may believe delayed payment is not a “big deal”, to an Applicant who is in dire need of money, it is a “very big deal”. A contravention of settlement also forces the Applicant to turn his or her mind to the issues once again, worry about whether or not they will receive the monetary amount, and have to deal with legal counsel if they are represented, likely incurring additional legal fees. Given the gravity of a breach of settlement, the Human Rights Tribunal should respond aggressively to discourage such acts. To date however, the Tribunal’s response has been lacking.

The Tribunal’s Response to Settlement Contraventions

The Ontario Human Rights Code gives the Tribunal the authority to make any order it considers appropriate to remedy a breach of a settlement agreement.[i] Here is an overview of some of the Tribunal’s recent contravention of settlement decisions:

In Xitimul v. Marriott Hotels[ii] the Respondent was 11 days late in making payment. The Respondent explained that the delay occurred as it had to reissue payment due to a tax deduction error with the initial payment. The Tribunal ordered $150.00 as monetary compensation for the contravention of settlement.

In Weitzmann v. Burns[iii] the Respondent failed to pay the settlement amount of $1,500.00 to the Applicant, explaining that the failure to pay was due to “minor health issues” which “led to serious health issues which he attributed to the applicant’s conduct towards him”. The Tribunal ordered the original $1,500.00 amount be paid. In addition the Tribunal ordered an additional $500.00 as a remedy for the contravention of settlement.

In Schenk v. Nixon[iv] the Respondent failed to pay $25,000.00 to the Applicant pursuant to the Minutes of Settlement. The Respondent explained the failure to pay, claiming to be in dire financial circumstances and “impecunious”. The Tribunal ordered the amount to be paid forthwith, however in the event that they are not paid the Respondent was required to deliver an irrevocable direction to his lawyer to pay the amount from the proceeds of another civil action where the Respondent was a Plaintiff. As a remedy for the contravention of settlement, the Tribunal ordered an additional $1,000.00.

In Medeiros v. Cambridge Canvas Centre[v] the Respondent failed to pay the settlement amount sum of $5,000.00. The Respondent argued that the Applicant breached the confidentiality provision in the terms of settlement and relied upon this alleged breach as an explanation for its failure to pay. The Tribunal ordered the Respondent to pay an additional $1,500.00 to remedy the contravention of settlement.

In Bailey v. Rock With Us Marble & Granite[vi], the most recent contravention of settlement decision (released by the Tribunal in September, 2013), the Respondent agreed to pay the Applicant $7,000.00 in seven installments. The Respondent was delayed in paying the settlement funds. After the Applicant filed an Application for contravention of settlement, the Respondent provided the remainder of the cheques owing. When the Applicant cashed the cheques however, they were rejected for “insufficient funds”. The Tribunal ordered the remainder of the amount owing to be paid and an additional $1,000.00 for monetary compensation arising out of the breach of settlement.

Conclusion

By the time Applicants get to mediation, they very rarely trust the Respondent. If Applicants feel they cannot count on the Tribunal to respond appropriately to contraventions of settlement, we may experience a “chilling effect” and significant decrease in the number of cases that settle.

Damages in the range of $150.00 to $1,500.00 may be insufficient to compensate Applicants for additional harm suffered and discourage future contraventions of settlement.  These damages seemingly do not reflect the fact that Applicants in these situations are typically “re-victimized” and put to greater expense and emotional turmoil with yet another Application to the Tribunal to recover what they are already entitled to.

END NOTES


[i] Section 45.9(8) of the Ontario Human Rights Code states that the Tribunal can “make any order that it considers appropriate to remedy the contravention”.

[ii] Xitimul v. Marriott Hotels, 2011 HRTO 1867

[iii] Weitzmann v. Burns, 2011 HRTO 818

[iv] Shenk v. Nixon, 2011 HRTO 1312

[v] Medeiros v. Cambridge Canvas Centre, 2011 HRTO 1519

[vi] Bailey v. Rock With Us Marble & Granite, 2013 HRTO 1510

Logo Barrierefrei (Bildungseinrichtung)

In August, 2013 the Tribunal released a key decision setting out the appropriate test for discrimination in education.[i] R.B., a 9 year old child, was provisionally diagnosed with an intellectual disability, Pervasive Developmental Delay, and Attention Deficit Hyperactivity Disorder. R.B. had a history of aggression and behavioural problems in the classroom. At issue in this case was a decision taken by the School Board to reduce R.B.’s educational assistant support from full-time to half-time, and significant and prolonged tension and conflict between R.B.’s mother, S.F., and the School Board, which resulted in the School Board banning S.F. from attending or communicating directly with the School.

Jurisdiction: Education is a Service under the Code

The Tribunal has jurisdiction to assess discrimination in education cases as education has been found to be a service under the Code. Section 1 of the Code prohibits discrimination in services. Schools are required to accommodate students with disabilities. Communication between the School and parents is integral as a part of an education for a student with high-needs. Schools should implement measures, short of undue hardship, to ensure that students with disabilities are permitted access to educational services which mirror, as closely as possible, educational services provided to all students in Ontario.

Discrimination in Education: The Two-Part Test

This decision was the Tribunal’s first to apply the test recently set out by the Supreme Court of Canada for discrimination in education cases.[ii] The Tribunal applied the following two-part test:

  1. The Applicant must establish that he or she was denied meaningful access to the educational service provided to all students in Ontario because of a disability. If the Applicant succeeds in this first step the Applicant has established a prima facie case of discrimination.                                                                                                                                                                                                                  .
  2. Once the Applicant has established a prima facie case, the burden then shifts to the Respondent to establish that it was incapable of fulfilling the right, or that the rule that adversely affected the Applicant was reasonable and bona fide (in this step the Respondent must demonstrate that it was unable to accommodate the student’s needs to the point of undue hardship).

Inappropriate Parental Conduct

There was a significant history of tension and conflict between the student’s mother, S.F., and the School Board. There was police involvement, an audio recording device that was sent to school on R.B., direct involvement of the Director of Education, and ultimately the implementation by the School Board of a communication ban and trespass notice banning S.F. from attending or communicating with the School.

The School Board argued that S.F.’s aggressive and inappropriate conduct interfered with the Board’s ability to accommodate R.B. The Tribunal found that S.F. acted “inappropriately at times” and was a “difficult parent to communicate with”, however the School Board failed to establish that her conduct prevented it from accommodating R.B.’s needs and providing him with meaningful access to education. The Tribunal stated:

…the Respondent could have dealt with S.F.’s behaviours directly by meeting with her to inform her that [her behaviour] made it difficult for the Respondent to work with her in his interests. Instead, the Respondent punished R.B. because of the conduct of his mother.

While the Tribunal did not find that S.F. interfered with the School’s ability to accommodate R.B. in this decision, it recognized that parental conduct can interfere in other scenarios, stating:

There may well be examples of parental conduct that prevents the accommodation process from occurring. For example, if a parent refuses to provide relevant information concerning a child’s disability, refuses to acknowledge the child needs accommodation, and refuses to consent to an assessment of the child, that conduct may interfere with the accommodation process and prevent a school from meeting that child’s needs.

Remedy: Significant General Damage Award ($35,000.00)

In determining that the School Board had discriminated against R.B., Vice-Chair Jennifer Scott ordered the School Board to pay $35,000.00 in general damages in compensation for “injury to R.B.’s dignity, feelings and self-respect”. Vice-Chair Scott further ordered that R.B. return to school with a full-time educational assistant, speech and language support for 30 minutes per week and an appropriate behaviour management plan that S.F. has agreed to. The Tribunal also lifted the trespass notice preventing S.F. from attending the school and ordered that she be entitled to fully participate in the development of R.B.’s Individualized Education Plan. Recognizing that the relationship between S.F. and he School Board had been “severely compromised”, Vice-Chair Scott wisely ordered the School Board to retain a third-party mediator to deal with any issues or difficulties going forward.

Conclusion

Schools have an obligation to accommodate students with disabilities. This is a landmark decision that is first by the Tribunal to apply the recently articulated test for discrimination in education. The goal is to provide students with disabilities with the same access to educational services as those offered to all students in Ontario. Parental conduct will not justify a failure to accommodate a student where parental conduct does not interfere with the School’s ability to accommodate. Schools should take care not to refuse to accommodate a student because of a difficult parent. Aside from being inadequate to justify a failure to accommodate, it may also constitute an independent violation of the Code on the basis of family status.


[i] R.B. by his next friend S.F. v. Keewatin-Patricia District School Board, 2013 HRTO 1436

[ii] Moore v. British Columbia (Education), 2012 SCC 61