Posts Tagged ‘Ontario Human Rights Code’

Human Rights Tribunal Fails to Sufficiently Address Harm Caused by Contraventions of Settlement

Posted: November 6, 2013 in Contravention of Settlement, Human Rights Tribunal of Ontario, Reprisal
Tags: , , ,
0

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

Employer Held Responsible for Racial Stereotypes – Even Without Specific Knowledge Of or Intention to Act Upon Stereotype

Posted: July 21, 2013 in Race
Tags: , , ,
2

Racism

The Ontario Human Rights Code protects employees from adverse treatment on the basis of their race. This includes racial stereotypes that may subtly influence decisions, even where the employer is unaware of their influence.

Adams v. Knoll North America Corp.

In Adams v. Knoll North America Corp.[i], a 2009 decision of the Tribunal, an Applicant a self-identified black Applicant became upset at his supervisor and raised his voice and yelled in the workplace. The Applicant’s supervisor felt that the Applicant had lost control and as a result the supervisor felt threatened.

The Applicant was suspended for three-days, and a pre-condition for the Applicant’s return to the workplace was that he undergo anger management counselling through the employer’s assistance plan. The Applicant refused to partake in anger management counselling and his employment was terminated.

The Applicant brought an Application to the Tribunal alleging that he had been discriminated against on the basis of his race. The Tribunal considered whether the Applicant’s race was a factor in the decision to require anger management counselling and found that on a balance of probabilities the employer’s conclusion that he could become violent in the workplace based on one incident of raising his voice and yelling was influenced by the discriminatory stereotype that black men have a propensity to turn to violence.

The Tribunal noted that racial stereotypes can subtly influence decisions, without knowledge or intention. The Tribunal stated:

We have come to understand that the application of racial stereotypes that Black men are prone to violence and criminal behaviour can lead to a greater monitoring and scrutiny of their behaviour. This heightened scrutiny may involve an overreaction to their behaviour when involved in situations that pose challenges for those in authority and this too, can form part of the differential treatment they experience…

The scrutiny itself may be unintentional. The impact of being more highly scrutinized must be examined from the perspective of the racialized person and not from the perspective of those who do not experience it.

CONCLUSION

Employers, landlords, and service providers (including police officers) can be found to have discriminated for decisions that are based, at least in part, on racial stereotypes – even if unintentional. It is important that decision-makers remain aware of the influence of stereotypes and take action to ensure they do not form a part of their decisions.

END NOTES

[i] 2009 HRTO 1381

Reprisal – Employers Cannot Reprise Against Employees for Raising Human Rights

Posted: July 20, 2013 in Reprisal
Tags: , , , ,
0

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

Older Entries
Newer Entries