Friday, March 25, 2011

Ontario Human Rights Tribunal Digest- March 3-March 18, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.


In this case, the applicant, a farm worker, alleged she had experienced discrimination in the workplace due to race, colour, place or origin, ancestry, marital status and disability, contrary to the Ontario Human Rights Code.

Specifically, the applicant alleged that she was the only visible minority and single parent worker and was being picked on as a result; that she was physically the weakest worker yet made to perform the hardest physical tasks; that she was made to do work without proper health protection; and, finally, that she was laid off while other workers were retained based on her personal characteristics. Beyond this, the applicant provided very little support for her allegations of discrimination.

The Tribunal unequivocally rejected all of the applicant's allegations of discrimination. It found as follows:

  1. The Tribunal found that the applicant was not the only minority worker, there were many other racialized employees who worked for the respondent employer.
  2. The applicant was not the only sole support parent worker; a number of sole support parents had worked for the company over the years.
  3. The applicant failed to provide evidence that the work she performed was anymore physically demanding than the work performed by other staff. In fact, the Tribunal found that the time sheets indicated that work was evenly distributed amongst the respondent workers, including the applicant.
  4. The Tribunal noted that investigations conducted by the Ministry of Labour and the Workplace and Safety and Insurance Board found that the respondent employer was maintaining a safe environment in accordance with applicable law.
  5. The lay-off of the applicant was based on seniority: the fact that the applicant had been treated differently than others and felt this was unfair did not amount to "discrimination" on the basis of any Code-protected ground.


In this case, the Tribunal requested that the Applicant provide an update within thirty days as to the status of a grievance proceeding, which had resulted in a deferral of the applicant's discrimination claim before the Tribunal. Because the applicant did not respond to the Tribunal's request, the applicant was deemed to have abandoned the Application and the Application was dismissed.

(See the case below for more discussion of the topic of deferral of applications alleging discrimination before the Tribunal.)

In this case, the Tribunal considered whether to defer an application alleging discrimination in employment on the basis of disability. The applicant had previously filed a claim with the Workplace Safety and Insurance Board that had yet to be disposed of.

In deciding whether to order a deferral of the proceeding before it, the Tribunal noted:
The Tribunal may defer consideration of an application, on such terms as it may determine and on its own initiative (Rule 14.1) The Tribunal has stated that deferral is not automatically invoked simply because the parties involved are in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
The application was deferred, since before the discrimination claim on the basis of disability could be resolved, a finding by the Workplace and Insurance Board was required on whether the exposure to mould at the respondent employer's workplace had caused the applicant to suffer an occupational illness. The Tribunal held that only after WSIB had made this finding (which was within its expertise) could it adjudicate on whether the employer had failed to accommodate this illness.

In this case, the applicant alleged discrimination on a number of grounds including gender and ¨record of sex-related offences.¨

The Tribunal ruled that the only the claim on the basis of gender could proceed. For all the other claims, the applicant had not referred to any specific incidents of discrimination but had only made bald assertions.¨

On the question of when preliminary dismissal is appropriate, the Tribunal stated:
An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This has been established by the Tribunal’s jurisprudence. See Masood v. Bruce Power, 2008 HRTO 381 (CanLII), 2008 HRTO 381 (CanLII); Morin v. Alliance de la function publique du Canada, 2008 HRTO 58 (CanLII), 2008 HRTO 58 (CanLII); Hotte v. Ontario (Finance), 2008 HRTO 63 (CanLII), 2008 HRTO 63 (CanLII).

Having reviewed the Application I am of the view that the applicant has failed to identify an act of discrimination related to the ground of “record of offences” which is defined in the Code as a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect to any provincial enactment.
- Robert Tanha, Toronto

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