Archive for the ‘Reprisal’ Category

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

It has been argued in the past that a reprisal application cannot be commenced outside of one of the five social areas listed in the Code (employment, housing, services, contract or membership). This situation may arise when a relative of a respondent approaches an applicant in a crowded mall for example, and berates the applicant for filing an application against the respondent.

It has also been argued that a reprisal application cannot be brought against an individual who is not a Respondent in the initial Application. This would arise where the Applicant in the aforementioned scenario then commence an application against the relative, who is not a party to the initial application.

While the Tribunal has not conclusively dealt with these issues specifically, it seems apparent that the a reprisal application can be commenced against a party who is not an existing respondent, and does not require a social area.

If the Tribunal were to find that a social area is required for a reprisal application, the Tribunal would be reading a restrictive element into the Code that would expose applicants to intimidation and threats without recourse. I will illustrate this by example:

Assume that Joe and Bob work together. Bob is African American. Joe makes several clear and damaging racist remarks to Bob in the workplace. Bob files an Application with the Tribunal in the social area of employment on the enumerated ground of race. The employer investigates and discharges Joe from his employment because of the severity of the discrimination. Joe’s wife repeatedly calls Bob and Bob’s family, swearing at him for bringing the Application that resulted in her husband’s termination.

To allow intimidation and threats for claiming human rights, even if outside of a social area, would defeat the purpose of section 8, which as the Tribunal has stated in Noble is to “ensure that individuals may claim and enforce the fundamental rights embodied in the Code without fear or intimidation”.

The necessity of an existing Respondent or social area is also not provided for statutorily. Section 8 does not refer to social area. It simply states that the Applicant has a right to claim his or her rights, free from reprisal. It does not say free from reprisal in a social area and it does not say free from reprisal from a Respondent. Moreover, the restrictive elements are not found anywhere within the three-part test of the Tribunal.

Conclusion

It is unlikely that the Tribunal would accept either argument:

  1. That a reprisal application must be commenced in one of the five social areas, or
  2. That a reprisal application cannot be commenced against an individual who is not a respondent in an initial human rights application.

The Supreme Court of Canada has stated on a number of occasions that the Code ought to be interpreted in a broad and expansive manner to provide meaning to human rights in Canada. It is highly unlikely that the Tribunal would restrict reprisal applications without guidance from the Legislature.