Wise Law Roundtable - Stop and Drop the StopSOP Slate of Bencher Candidates

Commentaries from Wise Law's lawyers on current cases of interest 

Garry J. Wise: I'll begin with a bit of background.  

Every Ontario lawyer and paralegal is required to create and abide by a Statement of Principles that acknowledges an obligation to promote equality, diversity and inclusion generally, and in behaviour towards colleagues, employees, clients and the public.

Wise Law's own Statement of Principles is here.

Elections for Law Society of Ontario Benchers will occur on April 30, 2019. Benchers, who serve as the LSO's board of directors, fulfil a central role in the governance of Ontario lawyers and paralegals. As noted at the LSO's bencher FAQ: 

A total of 40 lawyer benchers are elected - 20 from inside Toronto, and 20 from outside Toronto. A total of five paralegal benchers are elected. 

...Benchers attend monthly committee and Convocation meetings to develop policies related to the governance of individuals licensed to practise law and licensed to provide legal services in Ontario. Benchers also attend ceremonial calls to the bar and paralegal licensing receptions. Benchers may also be appointed to the Law Society Tribunal and sit on hearings to consider cases related to the competence, conduct and capacity of licensees

A group of Bencher candidates, self-identifying as the StopSop slate, has organized itself to run on the singular platform of using "best efforts to revoke the Statement of Principles upon election."  

We are a group of lawyers and paralegals in Ontario who are concerned about the directive by the Law Society of Ontario (LSO) that each legal professional must abide by a Statement of Principles (SOP) that acknowledges an obligation to promote equality, diversity and inclusion generally, in our behaviour towards colleagues, employees, clients and the public.

We believe that the LSO has no business telling legal professionals what principles they must profess, value or promote, and that this is an encroachment on fundamental freedoms under the Charter of Rights and Freedoms. It does not matter whether you agree with the spirit or intent of the values which you are asked to promote; the fact that an arm of the state can dictate your beliefs to you, on pain of the loss of your livelihood, is deeply troubling.

We are putting forward a slate of candidates for the upcoming Bencher election (for governance of the Law Society) in April 2019. Each candidate undertakes to use best efforts to revoke the Statement of Principles upon election.

In this week's Roundtable, Wise Law's lawyers comment on the StopSlop gang:

Simran Bakshi: I entered the legal profession with a sense of optimism (and if I am being completely honest, naivety) about the diversity I would find within the Ontario Bar. 

My law school class had been fairly diverse, and I assumed that this is what I would find in the workforce as well. What I discovered, however, is that while there is some degree of diversity at law firms, particularly in the junior pool of professionals, the extent of diversity tends to get watered down in climbing the ranks. 

In fact, in my nearly five years of practice, I have come across many “racialized” articling students and associates, perhaps a handful of “racialized” partners and exactly one “racialized” judge. 

While I am not suggesting that there is a rampant issue of racism in the Bar, to say that we do not have a problem with diversity in our profession would frankly be burying our heads in the sand. 

Given the lack of representation of minorities in the Bar, I am hard pressed to find a reason why an effort to promote the Law Society’s mandate is being met with such resistance.

Some of our colleagues seem to take great issue with the fact that the Law Society imposes a positive obligation to affirm a commitment to  equality, diversity and inclusion. What they fail to recognize is that an act of discrimination is not necessarily mutually exclusive from a failure to be inclusive of minority groups. 

In any case, imposing a positive obligation on lawyers to give teeth to the principles set out in our Charter and the Ontario Human Rights Code is hardly unreasonable.

The irony of decrying the Statement of Principles on the basis that it supposedly infringes on upon civil liberties to decide whether or not to encourage and promote equality, diversity and inclusion cannot be lost.

Think about the message we would be sending here - it is not okay to discriminate against racialized groups, but it is okay to exclude them? Or rather to not promote their inclusion? 

As much as I am a proponent of the mandate behind the Law Society’s Statement of Principles, I am less than optimistic that it will be effective in bringing about the change it is meant to. 

I simply do not believe that you can condition a person to believe in equality, diversity and inclusion by requiring that they affirm to do so. 

A resistance to embracing diversity is typically premised on a sense of fear and ignorance about what is different. Signing an acknowledgement to act differently hardly goes to the root of the problem, and is a band-aid solution, if anything.

Still, the Law Society is to be commended for recognizing that there is, in fact, a real issue with minorities being fairly represented in our profession, even if its proposed solution leaves much to be desired.

Paul Adam: Many employees of large companies are forced to act as ‘ambassadors’ of their employers, and spout a lot of vacuous nonsense that has made its way into the ‘mission statement’ of International Consolidated Widgets LLC, or what have you. They have no Charter protections from being required to make those statements.

And what the Law Society is asking its members to do is actually affirm that they believe that the legal profession has a duty to hire and represent minority communities, in accordance with the Ontario Human Rights Code. So never mind the posturing about rights - what is it that you do not want to have to say?

Is it that you do not, in fact, believe in hiring people in accordance with the Human Rights Code?

Or is it that you believe, in the abstract, in hiring people in accordance with the Human Rights Code, but you don’t believe you should ever have to demonstrate that you do so in action?

In the recent decision of Trinity Western University v Law Society, 2018 SCC 33, the Supreme Court had this to say about the Law Society:

[20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

[21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R. 613, at para. 47).

[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole.

Maybe these Bencher candidates disagree with this finding, which is now part of the law of the land.

But the fact is, businesses, schools, and governments have had the right to take measures to promote substantive equality, not just theoretical equality, even when that requires others to make adjustments to things they find inconvenient, or uncomfortable.

Maybe they agree with it in principle, but disagree that they themselves should be required to do anything affirmative to make it so. The Anti SOP-slate writes:

It is correct that we have a duty not to discriminate on prohibited grounds, but there is no positive legal duty to promote equality, diversity and inclusion. The LSO is effectively forcing lawyers to do something which it has no legal authority to require.

I suppose they think that equal access to the legal profession will descend like dew from heaven, and melt those inequitable barriers all by itself, without a single member of the legal profession having to put any money where his or her mouth is.

Unfortunately for them, they are wrong. The Statement of Principles is not, as StopSOP insinuates, a Maoist Cultural Revolution coming to sweep away individual rights and subject them to struggle sessions led by law students of colour who ask to be referred to by gender-non-binary pronouns.

It is perfectly in line with the law of Canada for the past 20+ years, as articulated by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General)   [1997] 3 SCR 624:

77 This Court has consistently held, then, that discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits.  Given this state of affairs, I can think of no principled reason why it should not be possible to establish a claim of discrimination based on the adverse effects of a facially neutral benefit scheme.  Section 15(1)  expressly states, after all, that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . .” (emphasis added).  The provision makes no distinction between laws that impose unequal burdens and those that deny equal benefits.  If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1)  stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.  

Even if I agreed with these candidates, I could not in good conscience vote for Benchers with such a poor understanding of our laws.

Garry Wise: The “compelled speech” arguments against the Statement of Principles strike me as both weak and grating.  Not to mention intellectually dishonest. 

The Rules of Professional Conduct represent the Law Society’s ultimate “statement of principles” applicable to the legal profession, and govern our dealings with the Courts, our clients, the general public and our professional colleagues. 

I hear nobody anywhere suggesting these Rules are offensive to any sensibilities, despite their deep regulation of what can, cannot, and at times, must be said in various circumstances we encounter each and every day. 

The Law Society also requires us to make many “compelled” declarations in our professional dealings.  As but one example, our Annual Reports naturally require us to affirm the truth of the practice-related and financial disclosures we make in these annual findings.  These compelled statements promote critical LSO objectives.  Is there anyone who would seriously raise an objection to that?

Would the anti-SOP gang also object if the Law Society required an affirmation that we promote the importance of ethics in practice and haven’t violated any Rule of Professional Conduct over the proceeding year?  

“You can’t force us to say that!”

Please. Call the proverbial whaaambulance. 

If the Law Society can “force“ us to list to the decimal the percentage of our time that we allocate to each area of practice and to state our trust account information is accurate, why shouldn’t it also be permitted to mandate that lawyers state that we affirm values of inclusion and don’t discriminate in our dealings with our employees, clients and each other?

It’s the law, after all. 

The objectors typically go to great length in pointing out that they, themselves, are nothing short of heroic in their own personal and professional diversity initiatives.  I’m sure that’s likely true, in many cases. 

They just don’t want to be forced to say it out loud, except in their self-serving bencher-election pamphleteering, where they’re arguing all-against the Statement of Principles.

That is a bit confusing.  

The legal profession continues to have significant and virtually unmovable diversity-related concerns. 

Why certain lawyers would devote even a moment of time to arguing against the Statement of Principles, let alone run entire political campaigns around their specious anti-SOP arguments, remains an unsolvable mystery to me. 

This so-called "debate" is not happening in a vacuum. We live in a time of escalating, record hate crime, incendiary political rhetoric and open racial intolerance in certain quarters.

Given this context, perhaps the anti-SOPPERS could better benefit society by devoting some of their misdirected energy toward real efforts to promote racial tolerance and inclusion - throughout the profession and throughout the planet.

StopSlop deserves to flop.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday September 19, 2017.

Today we are talking about Employment Law.

Ontario employees are prohibited from discrimination and harassment against any employee.

Employers may not discriminate on the basis of race, religion, colour, citizenship, creed, gender, disability, sexual orientation, gender identity or expression, age, record of offences, marital status or family status

For more information on Employment Law, Family Law, Wills, Estates, and Estates Litigation, visit our website at http://www.wiselaw.net.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday January 24, 2017. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jan 24, 2017 at 6:44am PST

Under Ontario’s Human Rights Code, where discrimination or harassment has been proven the Tribunal can award significant remedies to employees.

A Human Rights Tribunal has power to order reinstatement of employment, restitution, monetary compensation for wage loss, and damages for injury to dignity, feelings and self-respect.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday January 17, 2017. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jan 17, 2017 at 7:03am PST

Ontario employees are prohibited from discrimination and harassment against any employee.

Employers may not discriminate on the basis of race, religion, colour, citizenship, creed, gender, disability, sexual orientation, gender identity or expression, age, record of offences, marital status or family status.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday August 30, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Aug 30, 2016 at 7:05am PDT

Ontario employers are prohibited from discrimination and harassment against any employee.

Employers may not discriminate on the basis of race, religion, colour, citizenship, creed, gender, disability, sexual orientation, gender identity or expression, age, record of offences, marital status or family status. 

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is you daily LawFact from Wise Law for Tuesday April 12, 2016. Today we are talking about Employment Law.

A video posted by @wiselaw on Apr 12, 2016 at 6:14am PDT

Ontario employees are prohibited from discrimination and harassment against any employee.

Employers may not discriminate on the basis of race, religion, colour, citizenship, creed, gender, disability, sexual orientation, gender identity or expression, age, record of offences, martial status or family status.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Section 46.1 of the Ontario Human Rights Code: Civil Remedies for Human Rights Claims

BY SIMRAN BAKSHI, STUDENT-AT-LAW, WISE LAW OFFICE

The enactment of section 46.1 of the Ontario Human Rights Code in June of 2008 provided for a much-awaited civil remedy for human rights claims. The expectation was that a number of human rights cases, particularly those closely related to a civil cause of action would be diverted to the courts, thereby preventing multiplicity of proceedings.

However, though the provision has now been in force for more than five years, damages have been awarded for discrimination in only one, rather recent case. Far from opening the floodgates of human rights litigation in civil proceedings, plaintiffs appear to be resorting to s.46.1 of the Code rather cautiously. A review of Ontario’s human rights system revealed that as of 2012 there had been only 19 reported cases in total which addressed human rights within a civil action, of which 14 cases specifically relied upon s.46.1 of the Code. None of these cases rendered a finding of discrimination.

Some questions…

The focus of the Court thus far appears to be on setting the parameters of civil proceedings for human rights claims. As a result of the dearth of substantive s.46.1 jurisprudence, there remain a number of questions that will require the Court’s direction going forward. This includes:

•  The status of a human rights claim if the accompanying civil cause of action is dismissed;
•  Whether the Court will award damages for discrimination if s.46.1 has not been expressly pleaded;
• How the Court will exercise its jurisdiction to award non-monetary restitution (i.e. reinstatement; systemic remedies etc.)?
• The range  and quantum of damages the Court may award for discrimination;
• Whether the limitation period for bringing human rights claims pursuant to s.46.1 will extend to two years, given that it accompanies a civil cause of action?

Some possible answers…

Civil Cause of Action as a Condition Precedent – Section 46.1(2):

Pursuant to section 46.1(2), in order to commence an action seeking compensation for discrimination, a human rights claim must be accompanied by a civil cause of action. 

While this requirement is straightforward in itself, questions emerge as to what the status of a human rights claim becomes if the underlying civil cause of action is dismissed.  Case law suggests that where a civil cause of action is struck down prior to trial, the accompanying human rights claim cannot survive on its own. 

What is interesting however is that if a human rights application is commenced at the Tribunal prior to any decisions being rendered on a motion to dismiss a civil claim (recall that this may often occur as the limitation period for bringing an application pursuant to the Code is only one year), the application may be barred pursuant to s. 34(11) of the Code. 

As a result, an individual may be left with no remedy for an alleged human rights violation purely on procedural grounds. In the case of Aba-Alkhail v University of Ottawa, 2012 HRTO 656, which presented with similar circumstances, the Tribunal held as follows:

[29] With respect to the applicant’s argument that he would be left with no human rights redress if both the civil suit and the Application are dismissed, I note that the Divisional Court recently emphasized that even in those circumstances section 34(11) is not discretionary and bars an application from proceeding: Grogan v. Toronto District School Board, 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. “In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action”: see para. 48…

There has yet to be a case in which damages have been awarded for a human rights claim, notwithstanding that the accompanying civil cause of action has been dismissed at trial. Presumably, given the framing of s.46.1, a human rights claim can still succeed as a separate cause of action. The Court affirms this position (although somewhat in obiter) in the case of Mykki Cavic v Costco WholesaleCanada Limited, 2012 ONSC 5307:

[47] The defendant has argued that in the event that I dismiss the plaintiff's claim for wrongful dismissal, I need not determine the issue of breach of the Human Rights Code. It is the position of the plaintiff that this is part of the claim and must be determined. I treat this claim as separate from the wrongful dismissal claim and will deal with the issue below.

Pleading the Code:

In Beaver v. Dr. Hans Epp Dentistry Profes sional Corporation, the Tribunal affirmed that a human rights application will be barred pursuant to s.34 (11) of the Code where “the facts andissues in a court action are the same as those in the application." What this means in practice is that an application can be barred even if a Code violation has not been expressly plead in the Statement of Claim. While the Tribunal’s position is well established, it remains to be seen if the Court will award damages for discrimination if section 46.1 of the Code has not been expressly plead. Presumably, given the Tribunal’s position, it would follow that a Plaintiff should similarly be entitled to compensation for discrimination so long as the pleading makes reference to human rights obligations and/or the Code.

 

Some Guidance – Wilson v Solis Mexican Foods

Human rights damages were awarded by the Ontario Superior Court for the very first time in the recent case of Wilson v Solis Mexican Foods Inc, 2013 ONSC 5799.

The Plaintiff in this case was a Certified General Accountant employed by the Defendant for almost a year and a half. Within a year of commencing her employment, she suffered a back ailment which eventually led to her taking leave from her position. Shortly thereafter, she was informed by the Defendant that her employment was being terminated as a result of the business being restructured.

The Plaintiff brought a claim for wrongful dismissal and further alleged the termination of her employment to have been discriminatory. Given her rather short-lived employment with the Defendant, she was awarded 3 months’ reasonable notice. The Court went on to find that the Plaintiff’s disability had been a factor leading to the decision to terminate her employment. In deciding the quantum of damages to be awarded for said discrimination, the following factors:

[90] First in this case, the plaintiff lost “the right to be free from discrimination” and experienced “victimization”. Second, the defendant’s breach of the statute is serious. The defendant orchestrated the dismissal and was disingenuous at various times both before and during termination.

As a result, the Court held the appropriate award to be $20,000 pursuant to s.46.1 (1) of the Code.

- Simran Bakshi, Student-at-Law, Toronto

Ontario Human Rights Tribunal Digest - May 1 - May 30, 2011

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

SUBSTANTIVE RULINGS

Heather Knibbs v. Brant Artillery Gunners Club In. et al. and Stephanie Long v. Brant Artillery Gunners Club Inc. et al.

In this epic Application, Heather Knibbs and Barbara Long, two bartenders working for a gun club, alleged that they had been discriminated against by the Respondent employer, contrary to the Ontario Human Rights Code.

Heather Knibbs alleged that she had been discriminated against on the basis of disability and that the Respondents had reprised against her for asserting her rights under the Code, and for commencing a human rights proceeding.

More specifically, Ms. Knibbs identified the following specific acts, which she alleged constituted discrimination on the basis of disability or reprisal:

1. While she was on a medical leave recommended by her doctor (because of problems with depression, diabetes, and cholesterol, partly brought on because of her father's death), she was demoted from full-time to part-time;
2. During her medical leave, the Respondents published confidential medical information (revealing her health problems) about her in the workplace, exacerbating her depression;
3. The Respondents sent her a letter stating that she could not return to work until she was fully recovered and symptom-free;
4. After she sent a letter from her legal counsel advising the Respondents that they were in breach of the Code, the Respondents retaliated by falsely accusing her of misconduct, including theft of money and misbehaviour pre-leave that had resulted in five complaints being launched against her apparently by fellow staff members;
5. The Respondents sent a letter to the police in connection with the missing money, falsely suggesting that the Applicant was involved, and maligning her character; and
6. She was laid off while on a bona fide medical leave.

Barbara Long alleged that she had been discriminated against on the basis of sex and on the basis of her association with Ms. Heather Knibbs, a person who she alleged could be identified by a prohibited ground of discrimination, namely disability (or perceived disability).

More specifically, Ms. Long alleged:

1. After she took a medical leave for an injury she sustained at her other job and became pregnant, the Respondents prevented her from performing her regular duties and reduced her work hours;
2. The Respondents continued to prevent her from performing her regular duties and working her regular hours even after she provided the Respondent with a doctor's note stating that she was capable of working her pre-pregnancy hours; and
3. Because of her relationship with Ms. Knibbs, the Respondents falsely accused her of stealing money and suspended her, delivered a letter to the police making unfounded allegations against her in addition to Ms. Knibbs.

The Respondent, in its submissions denied that any discrimination or reprisals had taken place, stating that all of its decisions with respect to Ms. Knibbs and Ms. Long had been properly taken, based on operational needs or were appropriate in the circumstances, and, in any event, always in accordance with the Code.

Heather Knibbs' Application

Issue #1: Did the Respondents discriminate against Ms. Knibbs because of her disability?

The Tribunal found that Ms. Knibbs' diabetes and depression easily fell within the Code's definition of disability. With that aside, the Tribunal turned to consider each one of the alleged acts of discrimination.

Firstly, since Ms. Knibbs' contract of employment guaranteed her at least 40 hours per week, coupled with the fact that she had a priority in scheduling, the Respondent's demotion of Ms. Knibbs' status from full-time to part time, was discriminatory. The Respondent's claim that its financial situation required a significant reduction of Ms. Knibbs' hours, did not square with the fact that total staff hours had not been reduced dramatically.

Further, Mr. Bourne, a supervisor of Ms. Knibbs, had testified that the Applicant had lost priority in scheduling because she was not working. According to the Tribunal, this was an admission by the Respondent that the Applicant's status had changed merely because she was on a disability-related leave. This was clearly discriminatory.

Second, the Respondent's requirement that Ms. Knibbs provide a letter from a doctor stating that she no longer has any symptoms of depression, and her diabetes fully under control was discriminatory. The Tribunal flatly rejected the Respondent's bald assertion that their insurance company had required that such a letter be sent to the Applicant.

The employer has a duty to permit an employee with disability-related needs to return to the workplace to attempt to accommodate him or her to the point of undue hardship. An employer must give thought or consideration to the issue of accommodation, which the Respondent had not done, in violation of the Code.

Third, the Respondent's publication of Ms. Knibbs personal medical information in the workplace, including the the fact she had depression , stigmatized her and irreparably poisoned the work environment. This clearly constituted discrimination.

In so holding, the Tribunal underlined the following :

1. The Respondents had put up the posting in a public area of the workplace without Ms. Knibbs' consent;
2. The posting was up for at least four days;
3. A significant number of Ms. Knibbs' fellow employees saw and read the posting;
4. While some of Ms. Knibbs' co-workers knew she had diabetes, few knew she suffered from depression;
5. When the Respondent finally pulled the posting down at the request of Ms. Knibbs (who had become aware of it), it took no other steps to repair or remedy the situation.

Fourth, the Tribunal found that the layoff that the Applicant had been subjected to during her medical leave, was also discriminatory. In so deciding, the Tribunal applied a but-for test; but-for the disability-related leave, the Applicant would not have been laid-off.

Issue #2: Did the respondents subject Ms. Knibbs to reprisal for asserting her Code-protected rights and starting a human rights proceeding?

The Tribunal found that the Respondent's demand that the Applicant meet with the Respondents to discuss her purported misconduct, including the improper taking of money from the Respondent Company and a number of complaints that had apparently been launched against her by fellow staff members pre-leave, was a reprisal for the Applicant asserting her Code-protected rights.

The Tribunal found:

• The Applicant's honesty was beyond reproach. There was no evidence whatsoever implicating Ms. Knibbs in any wrongdoing pre-leave, aside from the fact she was an employee at the time the money was taken.
• With respect to the "alleged employee complaints" against Ms. Knibbs and none of the employees who had apparently made the complaints, gave testimony in support of them.
• The timing of the demand defied coincidence. It had followed within two weeks of the letter sent by Ms. Knibbs' legal counsel asserting that the Respondents were in breach of the Code's prohibition against discrimination on the ground of disability.

Further, the Respondent's letter to the police, which had referenced Ms. Knibbs' human rights Application, was a direct and intentional reprisal for the making of such an application, especially in light of its timing and the fact that the allegations contain therein against Ms. Knibbs were patently false.

Issue #3: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, Ms. Knibbs was awarded $20,000.00 by the Tribunal. In justifying its decision as to quantum, the Tribunal stated:

I find that the respondents' discriminatory treatment of Ms. Knibbs was serious. The respondents, despite being aware of Ms. Knibbs' vulnerability because of the death of her father and her associated health problems, subjected her to a series of acts of discrimination based on her disability, a threat of reprisal, and an act of reprisal.

Lost Income

Worthy of specific note, the Tribunal found that Ms. Knibbs' job search efforts, applying for eight jobs and attending at one interview over 3 months in a depressed economy (while in a frail state of health), was sufficient to discharge her duty to mitigate her losses.

Barbara Long's Application

Issue #1: Did the Respondents discriminate against Ms. Long because of disability?

Yes, because the Respondents had denied Ms. Long light duties after she suffered a workplace injury at another job. In fact, the Tribunal found that the Respondent had not even attempted to accommodate Ms. Long's medical needs to the point of undue hardship, a blatant violation of the Code. The Respondents' taking of the position that Ms. Long had to do the whole of the job, or nothing at all, was discriminatory on its face, as was their position that Ms. Long did not have to be accommodated because she was only a part-time, as opposed to full-time, employee.

The Respondents presented no evidence that arranging for someone to assist Ms. Long with her heavy duties until she had recovered from her injury, would have caused them undue hardship.

Issue #2: Did the Respondents discriminate against Ms. Long because of sex?

The Tribunal found that the Respondents had discriminated against Ms. Long by denying her overnight shifts and her usual hours based on their view that pregnant women can not safely do such work given their physical state. This was direct discrimination based on stereotypes, and was inexcusable. The Tribunal pointed out that the discrimination based on sex continued even after Ms. Long had provided a letter to the Respondents which stated unequivocally that she was fit to perform work at night; and resume her pre-pregnancy hours.

Issue #3: Did the Respondents discriminate against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination?

Yes, Ms. Long had faced reprisals for associating with Ms. Knibbs through employment and family, which the Respondents were aware of. The Tribunal found that:

• Ms. Long was directed not to speak with Ms. Knibbs following her commencement of a human rights proceeding against the Respondents;
• She was directed not to live with Ms. Knibbs, and not long thereafter, Ms. Long was suspended for an alleged act of misconduct and a letter was sent by the Respondents to the police making allegations against her (which were totally unsubstantiated).
• The letter made explicit reference to the Human Rights Application, to Ms. Long and Ms. Knibbs familial relationship and to the fact they were living together. It was clearly a retaliation.

As Ms. Knibbs was a person identified (or perceived to be identified) by a prohibited ground of discrimination, namely disability, this constituted discrimination within the meaning of the Code.

The Tribunal concluded that the cumulative effect of the Respondents' discriminatory actions, in particular its failure to take any steps to resolve Ms. Long's suspension, had effectively severed the employment relationship.

Issue #4: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, the Tribunal awarded Ms. Long $13,000.00. In justifying its decision as to quantum, the Tribunal noted:

. . . I find that the respondents' offensive treatment of Ms. Long was also serious. The respondents failed to accommodate her disability-related needs, which resulted in a loss of work hours. More seriously, knowing that Ms. Long was vulnerable as a soon-to-be single mother, the respondents cut her hours because she was pregnant. To make matter worse, the respondents then suspended Ms. Long from her job and an Officer of the Club intentionally tried to harm her by trumping up allegations to incite the police to investigate and charge her with criminal offences. The further loss of work hours obviously caused her significant stress because of the impending birth of her baby and her future financial needs.

Lost Income

With respect to this head of damages, the Tribunal awarded Ms. Long $6,084.00 to put her back into the position she would have been in had the discriminatory acts not occurred. This was the amount she would have earned, had she been permitted light duties; had she been permitted to work her usual hours while pregnant; and had she had not been improperly suspended.

Interestingly, the Tribunal also accepted Ms. Long's request that she be awarded an additional amount for loss EI maternity/parental benefits as a result of having less insurable hours.

PROCEDURAL RULINGS

Sarah Rogers v. Holcim (Canada) Inc.

In this case, the Applicant alleged discrimination in employment on the grounds of sex and pregnancy. The respondent had requested that the Application be deferred pending the outcome of a reconsideration of an Ontario Ministry of Labour order made pursuant to the Ontario Employment Standards Act.

Since the decision dealt with the same subject matter as the proposed proceeding before the Tribunal, namely whether the employer had acted improperly in contravening the pregnancy leave provisions of the Employment Standards Act, for which reinstatement could be ordered, the Respondent's request was granted.

Davis v. Sarnia Golf Club

In this case, the Applicant filed an application alleging discrimination, but the last incident of discrimination described in the application had occurred more than one year before the filing of the application.

Section 34 of the Code provides that:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

As a result, the Tribunal sent a notice advising the Applicant that the application appeared to fall outside of its jurisdiction and requesting written submissions addressing the issue within five weeks. The Applicant did not respond to the Tribunal's Notice so his application was dismissed as abandoned.

- Robert Tanha , Toronto

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Wise Law Blog: Ontario Human Rights Tribunal Digest - March 18-31, 2011

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

SUBSTANTIVE RULINGS

Bianca v. Maritime Travel and Karn Nichols

In this case, the applicant alleged discrimination on the basis of disability in employment, contrary to the Ontario Human Rights Code. More specifically, the applicant alleged that she took a medically approved sick leave due to a disability, and that the respondents were aware of her medical condition. When she advised her respondent employer she was ready to return to her job, she was refused, even after offering to come back part-time or as a floater. She subsequently learned that someone new had been hired by her company to fill her role.

The respondent, in its evidence, alleged that the applicant's termination was due to a slowdown in business and had nothing whatsoever to do with her disability. What is more, it stated that the applicant was a temporary employee, not a permanent employee, and that its decision to hire a new staff member was made after the decision to terminate the applicant had already been taken. Furthermore, this new staff member was hired to work very minimal hours and the applicant in the past had indicated to the respondent that these hours would not be enough to sustain her.

The Tribunal preferred the evidence of the respondent to that of the applicant:

I prefer the evidence of Ms. Buchanan and Ms. Nichols that they hired an individual in December 2008, on a vary casual or temporary basis, after the applicant's employment was terminated. I find that their evidence was consistent with each other. . .

The Tribunal found that market conditions, not the applicant's disability, had caused the employer to decide to terminate the applicant's employment; it just happened to coincide with the time she was suppose to return to work. As well, the Tribunal found that the applicant's employment was of a temporary nature. It stated:

I find that the decision to terminate the applicant's employment was related to market conditions and a lack of business at the Hazelton Lanes branch, and the applicant's disability was not a factor in the decision to terminate her employment. The applicant did not dispute that her workplace was not busy. In addition, the applicant agreed in cross examination that, when she went on leave, the respondents did not have any work for her beyond September 22, 2008.

Of note, the Tribunal stated that disability, as is the case with any of the prohibited grounds contained in the Code, only has to a factor in the decision to terminate; it does not have to be the sole reason.

PROCEDURAL RULINGS

Leong v. Dufferin and Lawrence Dental Office

In this case, the applicant alleged discrimination in services against a dentist on the basis of race, colour, ancestry, place of origin, ethnic origin, disability, creed, sex, marital status and reprisal or threat of reprisal. The dentist had refused to provide an extraction at the applicant's scheduled appointment for no apparent reason, which she alleged had been done due to her personal characteristics. Beyond this, the applicant provide no further information beyond stating that she felt this treatment was grossly unfair.

The Tribunal issued a Notice of Intent to Dismiss on the basis that the applicant had failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent, requesting information on the aforementioned. The applicant failed to reply.

In dismissing the application, the Tribunal aptly noted:

The Tribunal's jurisdiction is based on the Code, which prohibits discrimination in the areas of accommodation, services, goods and facilities, employment, contracts and membership in vocational associations, on the basis of grounds listed in the Code. Neither the Application nor the applicant's submissions suggest a connection between the applicant's allegations and any of the grounds identified in the Code. The Tribunal does not have a general power to inquire into claims of unfairness or wrongdoing outside those areas or grounds

Mitchell v. Associate Tube Inc.

In this case, the applicant alleged discrimination with respect to employment on the basis of record of offences and reprisal. The applicant stated that he had been mistreated by his employer, but did not connect this alleged mistreatment to a Code-protected ground or to an attempt on his part to claim and enforce his Code rights.

In its reasons, the Tribunal fleshed out the extent to which it may inquire into claims of unfairness:

The Tribunal does not have a general power to inquire into claims of unfairness outside the grounds listed in the Code. The applicant has not identified any ground of discrimination or basis upon which he alleges that the Code was violated. I find that the Application does not raise matters which the Tribunal has the power to decide.

Unfairness, in other words, may be cognizable by the Ontario Human Rights Code but only where it relates to a Code-protected ground.

Madore v. Sears Canada

In this case, the applicant alleged discrimination in employment because of sexual solicitation or advances, relying on bald assertions of such treatment at the hands of his employer. Section 7(3)(a) of the Ontario Human Rights Code provides:

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome

Because the applicant had not responded to the Notice of Intent to Dismiss, which had been sent to the applicant requesting information about how he experienced unwelcome sexual solicitation or advance within the meaning of the Code provision, the Tribunal dismissed the application as abandoned.

- Robert Tanha, Toronto

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

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

SUBSTANTIVE RULINGS

Liu v. Country Herbs and Garry Proven

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.

PROCEDURAL RULINGS

Cray v. Rouge Valley Health System

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.)

Kiss v. ED Industries Ltd.

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.

Thompson v. Gemma Communications

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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Ontario Employment Law: Parallel Jurisdiction of the Ontario Human Rights Tribunal and Courts in Dismissal and Discrimination Claims

In a recent case, Salvador v. Genpak LP, an applicant made an application to the Ontario Human Rights Tribunal alleging discrimination in employment on the ground of disability. The respondent employer opposed this application on procedural grounds, aruing that the application should be dismissed since the applicant had already had a parallel civil claim in that he had already filed a Statement of Claim against it in Small Claims Court alleging that he had been wrongfully dismissed.

Section 34(11) of the Ontario Human Rights Code, upon which the employer relied, states:

34 (11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c. 30, s. 5.

The respondent employer essentially argued that because the Small Claims action dealt with the same set of facts as the application before the Tribunal, section 34(11) required dismissal of the Code application.

The Tribunal found that this factual overlap alone was not enough to oust its jurisdiction in this case:

Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because he has not raised the Code in his civil action. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application: see Baker v. Sears Canada, 2009 HRTO 1014 (CanLII), 2009 HRTO 1014 (CanLII), at para. 12:

The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’sjurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.

If you have been wrongfully dismissed or discriminated against, contact a lawyer to be advised as to your legal rights and entitlements.

- Robert Tanha, Toronto

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