Monday, December 13, 2010

Ontario Employment Law: "Discrimination" Under The Ontario Human Rights Code

In a very recent case, Syed v. Khetia Pharmacy Inc., the Ontario Human Rights Tribunal decisively rejected an applicant’s claim that he had been discriminated against by his employer on the basis of four grounds, namely ancestry, ethnic origin, place of origin and disability.

While the Applicant was ultimately unsuccessful, the case is extremely noteworthy for what it says about each of the grounds of discrimination alleged by the Applicant in the case, and in particular, for what it says about the factual circumstances that will need to be present for "discrimination" as defined by the Ontario Human Rights Code to be found.

For example, in assessing the Applicant’s disability claim, the Tribunal states:

There is no evidence that the applicant is or was at any material time a person with a disability. He alleges that his treatment in the workplace caused him stress and that he was having trouble sleeping at night. I note that neither of these things are necessarily disabilities within the meaning of the Code. There is also no contemporaneous medical evidence that he was experiencing any difficulties medical or otherwise. More importantly there is no evidence that he ever raised the issue with his employer.

As this passage makes clear, in the absence of contemporaneous medical evidence supporting a finding that an employee was afflicted with a “disability” at the material time, it is unlikely that an employee will be able to succeed under this ground. Further, an employer must be aware of the disability; otherwise it will not have a duty to accommodate that individual employee.

Where the disability alleged is "workplace stress" and there are no outward manifestations of the problem, the employee will almost certainly need to communicate it to the employer to stand any chance of success under this ground of discrimination.

With respect to ancestry, ethnic origin and place of origin, the Tribunal in the case held that the Applicant’s bald belief that he was denied payment for a statutory holiday based on the aforementioned grounds is not enough:

Beyond the fact that the applicant believed he was entitled to be paid holiday pay for the holiday in question, and there is a dispute about that issue, there is no evidence to support the applicant’s contention.
In other words, an applicant’s subjective belief alone is not going to be enough; to succeed an employee will need to be able to point to statements or particular episodes in which such “discrimination” presents itself in some tangible way. This standard applies equally, regardless of the ground of discrimination being alleged by the Applicant.

Of note, the Tribunal throughout its reasons underlines that “differential treatment” without more is not “discrimination”. The treatment must be linked to a specific ground in the Code.

If you feel that you have been discriminated against by your employer, please to not hesitate to contact a lawyer who can advise as to you rights and entitlements under the Ontario Human Rights Code.
- Robert Tanha, Toronto
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