Archive for the ‘Proof’ Category

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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.)

Business secret

Discrimination is rarely overt. If an employer decides to fire an employee for discriminatory reasons, it typically does not say so in termination letters or exit interviews. In fact, on the advice of legal counsel, employers typically do not provide any reason for termination at all. Increasingly however, employers are relying upon language left open to speculation. Generic statements such as “not the best fit”, “not working out”, and “under performing”, leave employees questioning the real reason for termination. Where a Code-protected ground is in play, employees who are terminated for generic reasons are often left questioning whether they have experienced discrimination. The Tribunal has cautioned employers against the use of speculative language when a Code-protected ground is in play.[i]

Sometimes employers allege “other” reasons that appear legitimate, yet the employee still believes the Code-protected ground was the real reason for termination. Because most employers do not overtly discriminate, employees often lack direct evidence to prove that they have been fired, at least in part, because of a Code-protected ground. These Employees must make their case relying upon what is called circumstantial evidence. The employee must establish, on a balance of probabilities, that a Code-protected ground was a factor in the decision to terminate employment. The Code-protected ground does not have to be the primary factor or even a significant factor, it just has to be a factor – it can be one of ten reasons for example, even where the other nine reasons are non-discriminatory.

Circumstantial Evidence: The Three-Part Test

The Tribunal has adopted a three-part test to be used in cases where Applicants try to prove discrimination on the basis of circumstantial evidence:

  1. The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was discriminated against with respect to her employment on the basis of [a prohibited ground];
  2. Upon presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration, and
  3. If the Respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.[ii]

The three steps are analyzed to determine the key question: whether the inference of discrimination is more probable from the evidence than the actual explanations offered by the Respondent? [iii]

Step # 1: Prima Facie Case

In cases of termination, a prima facie case is established by proving the following:

  1. The Applicant was qualified for the position;
  2. The Applicant’s employment was terminated, and
  3. That an employee, no better qualified for the position, subsequently obtained the position.[iv]

In cases of hiring or promoting, a prima facie case is established by proving the following:

  1. The Applicant was qualified for the particular employment;
  2. The Applicant was not hired, and
  3. That someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.[v]
Step # 2: Employer’s Alternative Explanation

Explanations put forth by the employer will be scrutinized. The Tribunal has refused to accept lack of performance where the employer failed to take steps to address the employee’s performance and could not provide reasonable explanation for the failure to take steps.[vi] It is reasonable to expect employers, who typically keep records and document occurrences within the workplace, to have corroborative evidence where corroborative evidence can reasonably be expected. The lack of reasonably expected corroborative evidence will likely be relied upon by the Tribunal to reject the employer’s explanation.

Step # 3: Discriminatory Reason More Probable Than Not?

Here the Tribunal assesses whether the Applicant is able to rebut the alternative explanation alleged by the Respondent. Credibility is often in issue in step three. In terms of assessing credibility, the Tribunal has stated:

…an assessment of credibility requires more than listening to the witnesses and deciding who appears to be telling the truth. The Tribunal has adopted an analysis of credibility…which required that the decision maker determine whether the evidence is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…[F]actors that assist in making that determination include corroborative evidence from other witnesses, the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties.[vii]

Conclusion

Employees who have a “feeling” that they have been discriminated against are sometimes correct. Employers who discriminate  cover their tracks and divert attention away from the discriminatory rationale behind their decision. The lack of direct evidence to prove discrimination should not deter an employee from proceeding with an Application before the Tribunal. A significant number of decisions from the Tribunal demonstrate that circumstantial evidence is often enough to establish discrimination.

ENDNOTES


[i] Dwivedi v. Brampton Public Library, 2010 HRTO 2471
[ii] Clennon v. Toronto East General Hospital, 2009 HRTO 1242 at para 69.
[iii] Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13
[iv] Clennon at para 78.
[v] Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R> D/1001 at para 8919.
[vi] Clennon at para 87.
[vii] Dwivedi at para 53.