Posts Tagged ‘Human Rights Tribunal of Ontario’

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

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.

3d man with dollar symbol.George Berger, an executive assistant to a Toronto City Councillor, brought an application to the Tribunal against the City of Toronto alleging that Councillor Frances Nunziata discriminated against him on the basis of his disability.[i] Berger suffered from adjustment mood disorder and multiple osteochondromatosis (a condition that involves arthritis in the fingers).

Berger commenced a leave of absence for medical reasons relating to his mental disability, which he claimed was related to a poisonous work environment caused by the alleged harassment. Berger requested the opportunity to work for another City Councillor when he returned to work. The City of Toronto argued that it was difficult to transfer executive assistants because City Councillors typically choose their own assistant. The City decided to pay Berger the remainder of his two year contract – approximately 6 months wages.

The Tribunal found that the allegations against Nunziata were not connected to a Code ground and therefore not within the Tribunal’s jurisdiction, however the City failed in its duty to accommodate Berger when presented with a request to be moved to a different City Councillor. The City decided not to explore whether it could accommodate the Applicant’s request, but rather decided to ‘buy out’ his employment. Vice-Chair Kaye Joachim stated:

[The City] failed to take adequate steps to canvass its organization for alternative comparable vacant positions in which to accommodate the applicant. Rather, it chose to resolve the situation by paying out the applicant’s contract.

The corporate respondent argued that the payment of wages on the remaining contract was a form of accommodation. I disagree. The applicant was denied the right to engage in meaningful work for the remainder of his contract. He was also denied the opportunity to seek renewal of the contract in whatever position he was in in November 2006.

In these circumstances, the applicant was essentially “forced” to seek a settlement.

Some will see six months’ pay for a one and a half year employee as reasonable – even generous. The duty to accommodate however required that the City explore accommodating Berger in an alternative position. The procedural component of the duty to accommodate requires employers to undergo a process – the City of Toronto failed to do so in this case. Forced settlements, even with generous sums of money, are not a substitute to the duty to accommodate.

Does this mean that the City of Toronto automatically had to explore placing Berger in an alternative position simply because he provided a medical note?

Not necessarily. The City could have questioned the medical evidence and insisted upon clarification. Medical doctors are not able to dictate accommodation, but rather their role is to provide evidence concerning their patient’s functional abilities and limitations. The City could have challenged the doctor’s conclusions,  but as Vice-Chair Joachim stated – “it was not open to it to do nothing”.


[i] Berger v. Toronto (City), 2011 HRTO 625