Friday, April 01, 2011

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.


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.


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

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.

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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