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Ontario’s Human Rights Code and the Human Rights SystemKate Sellar & Karen McNeilly

Human Rights Legal Support Centre

OCASI Week of June 20, 2011

PART 1:

OVERVIEW OF HUMAN RIGHTS SYSTEM AND DEFINING DISCRIMINATION

Ontario’s Human Rights System (Since 2008)

Ontario Human Rights CommissionPublic Education

Human Rights Legal Support CentreLegal Services

Human Rights Tribunal of OntarioHears Cases, Issues

decisions

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Ontario’s Human Rights Code

• Recognizes the “inherent dignity and the equal and inalienable rights of all members of the human family”

• Recognizes “the dignity and worth of every person and to provide for equal rights and opportunities without discrimination”

• Aims to create “a climate of understanding and mutual respect for the dignity and worth of each person”

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Human Rights Basics

• Ontario’s Human Rights Code has supremacy over other laws and protects people from discrimination in employment, services and housing

• The law is enforced by the Human Rights Tribunal of Ontario – they can award money for pain and suffering and lost wages (“damages”) and order changes to the way people practice business

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Where does the Code apply?

• Employment• Housing• Services, goods and facilities• Contracts• Membership - Associations (e.g. unions,

professional associations)

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Prohibited Grounds of Discrimination

• Race, colour• Ancestry• Place of origin• Citizenship• Ethnic origin• Creed (religion)• Receipt of social assistance

(housing only)

• Sexual orientation• Marital status • Family status• Record of offenses

(employment only, must have been pardoned)

• Age• Disability• Sex (includes being

pregnant, sexual harassment and gender identify)

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What is Discrimination?

• Differential treatment, deny a benefit, exclude, impose obligations, disadvantage, etc. because of a characteristic or perceived characteristic

• Intent is not necessary• Discriminatory factor may be one of many

factors• For more information, Ontario Human Rights

Commission website (“Human Rights 101”)

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Examples of Discrimination• Employment (83% of cases fall here)

– “You’re pregnant? You’re fired.”– “Hey honey, let’s have a hug and you can have your promotion.”– “You’ve been off sick too long, you’re fired.”– “Have a mental illness? You’re fired.”

• Housing– “You’re too young, we want mature residents.”– “No people on welfare allowed to rent here.”– “No kids”

• Services– “We don’t want people like you in this store – speak English or go back

where you came from.”– “No dogs, we don’t care if your doctor says you need it”

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The Duty to Accommodate

• What is the Duty to Accommodate? – Structures, rules, policies may have to be changed

to ensure persons protected by a prohibited ground of discrimination are to fully enjoy equality with respect to housing, employment, services, etc.

– Accommodation must be made short of undue hardship

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Defining Undue Hardship

• Responsibility of housing provider, employer, etc. to demonstrate undue hardship.

• Only factors:– Cost (taking into account outside sources of

funding)– Health and safety

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Principles of Accommodation

• Dignity

• Individualized accommodation

• Integration and full participation

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Examples of Accommodation• Susan becomes injured and is no longer able to perform

all of her tasks but is perfectly able to return to work.

• Dale has a mental illness that requires weekly medical appointments and occasional time off work

The employer must “accommodate” the employees by figuring out how to make the job work by things like changing the duties/hours/etc.

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Exceptions: Special interest organizations

• Programs designed to address disadvantage of individuals/groups protected by a prohibited ground of discrimination not in violation of the Code

• e.g. housing that is restricted to Aboriginal people, women’s shelters, etc.

• Restrictions must relate to addressing disadvantage.

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What is NOT a Human Rights Issue

• General non-Code related employment issues (wages, etc)

• General harassment that is not based on Code grounds – but could be covered by changes to OHSA - Workplace Violence and Workplace Harassment

• Person to person incidents outside of housing, employment, services and contracts

• Free speech exemption in Code

PART 2:

THE HUMAN RIGHTS LEGAL SUPPORT CENTRE:WHAT WE DO AND HOW WE DO IT

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The Human Rights Legal Support Centre• Opened its doors on June 30, 2008

• The Human Rights Legal Support Centre was created to provide legal help to people who were discriminated against and are filing a human rights application at the Tribunal

• The Centre only provides legal assistance to Applicants who have experienced discrimination. NOT employers, service providers or landlords who are accused of discriminating

• Free service, no income testing

• The Centre provides services to people across Ontario

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The Centre Provides Services at Every Stage

• Early intervention - Where resolution is possible - phone call to potential respondent or demand letter

• Before an application is filed- Advice – determination of issues- Referral where not human rights issue

• Preparing and filing application - Assistance in drafting and filing application OR

- On record to prepare and file application

• After the application is filed - Advice in preparing for mediation or hearing OR - Retained to prepare for mediation and hearing • At mediation at the Tribunal

- Advice to self-represented applicants OR - Representation at mediation

• Post-mediation- Representation in settlement negotiations

- Advice to self-represented applicants OR - Preparation for hearing as counsel of record • Representation at hearing • Enforcement – for clients and for self-representing applicants.

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The Centre Provides Service in over 140 Languages

• Centre has in-house language abilities in thirteen languages, and the assistance of community-based interpreter services

across the province.

• Centre has immediate access to telephone interpreting

services in over 140 languages

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Where do the calls to the Centre originate?

Geographic Location of ApplicantsEast13%

GTA48%North

13%

Southwest26%

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What sector are people calling the Centre about?

Social Area of Discrimination

Goods, Services or Facilities

12%

Housing4%

Employment84%

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How many people call the Centre and what are they looking for?

• The Centre responded to 24,905 telephone and in-person inquiries from the public in 2009/10.

• In response to 10,700 of these inquiries, Centre paralegal staff provided summary legal assistance in respect of a possible human rights claim.

• An additional 8,200 inquiries were requests for general information about rights and responsibilities under the Code.

• Most of the remaining 5000 calls were unrelated to human rights.

• Less than half of telephone inquiries are requests for legal or support services about a possible claim of discrimination.

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What does the Centre’s Legal Department Do?

• The Centre’s lawyers provided legal services (including legal opinions, drafting and settlement negotiations and representation) in respect of a Tribunal application (or potential application) to 995 new clients who contacted the Centre for the first time in 2009/10.

• The grounds of discrimination in these claims can be broken down as follows:• Race, Colour, Ethnic Origin, Place of Origin, Ancestry and Race-related Creed – 30%• Disability – 28%• Sex, Sexual Harassment, Gender – 11%• Pregnancy – 10%• Sexual Orientation and Gender Identity – 10%• Family, Marital Status – 4%• Age – 3%• Reprisal – 2.5%• Receipt of Public Assistance – 0.5%• Record of Offenses – 0%.

• The Centre provided representation in approximately 500 Applications proceeding before the Tribunal in 2009/10.

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Who Is Eligible for Legal Representation from the Centre?

• The Centre cannot provide a lawyer to every person requesting representation at mediation or a hearing.

• The Centre’s legal services are offered on an “unbundled” basis. Most retainers are for a limited stage of the proceeding: filing, settlement negotiations, mediation, adjudication.

• Thousands of individuals each year self-represent at the HRTO with Centre assistance at each stage.

• Full representation is provided to those individuals who would be the most disadvantaged if unrepresented.

• Eligibility policy is on website. Factors include: merit, barriers to self-representation, complexity of case, precedent value or broad impact (including on other Centre applications).

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What we do:Early intervention - housing

Intake staff try to assist callers who are seeking immediate solutions. • A superintendent discouraged an African Canadian woman from applying for the apartment

that she had just viewed. She called back the next day, identified herself and was told that the unit was no longer available.

• After talking to our intake staff, the woman arranged for a friend with a British accent to phone about the unit. She was told it was still available. The next day, the white friend visited the building and spoke to the superintendent who confirmed that the unit was available.

• Immediately after, the African Canadian woman walked in and tried to rent the apartment. The Superintendent contacted the property manager who said the unit was rented.

• The woman got back in touch with the Centre. We contacted the owner immediately and negotiated acceptance of the client’s rental application.

• Result: Two days after the client first called the Centre, the situation was resolved and the client was able to rent the apartment.

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What we do: Pre-application settlements

HRLSC often attempts settlement before filing an application

• The CEO of a company sexually harassed an employee by making inappropriate comments and physical contact.

• Prior to filing an application, HRLSC staff attempted to negotiate a settlement.

• Result was a payment of $26,000 for the person harassed, plus $1,000 donation to a women’s shelter. Additional training for employees was to be completed in the fall of 2008.

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What we do:Mediated Settlements at the Tribunal

The Centre settles approximately 75% of applications at mediation

Settlements have included

• Damages (money for injury to dignity, feelings, and self-respect)

• Lost Wages• Public Interest Remedies (changes to workplace policies,

addition of workplace training)• Specific Remedies (return to accommodated work, etc.)

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Examples of Decisions in Centre cases:

Khan v Lynx Trucking race/employment

• Decision found that a female employee was subjected to “deliberately cruel” and constant racist comments and harassment

• Award of $25,000 in general damages

• The respondent was ordered to hire a human rights expert and develop a human rights and anti-harassment policy within 6 months which would then be distributed to current and all future employees.

• The personal respondent was ordered to take human rights training

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Examples of Decisions in HRLSC cases:Maciel v. Fashion Coiffures pregnancy/employment

• Young woman was terminated 15 minutes after telling her employer she was pregnant on her first shift for a new employer

• Tribunal awarded general damages of $15,000 and $20,000 in lost wages and benefits

• Tribunal required the employer to implement an accommodation policy for pregnant employees

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Examples of Decisions in HRLSC cases:Dhamrait v. JVI Canada place of origin/employment

• Punjabi speaking employees told to speak English during lunch break. Two employees file applications after termination

• Tribunal finds termination linked to discrimination in one case and not the other

• Both applicants are awarded damages for discrimination associated with the instruction to not speak Punjabi

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Examples of Decisions in HRLSC cases:Vetricek v. 642518 Canada disability/employment

• Vetricek was employed on contract as an admissions representative for Algonquin Careers Academy

• Employer knew he had a shoulder injury that required some medical absence from work

• Vetricek’s contract was changed several times and ultimately he was laid off • Company admitted that one of the reasons for the layoff was the absences from

work, which the company thought had an impact on his “reliability” • The Tribunal found the layoff to be discriminatory and awarded $15,000 for

experience of discrimination and $52,000 in lost wages

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Examples of Decisions in HRLSC cases:Harriott v. Money Mart sex harassment/employment

• Marjorie Harriott told her district manager at Money Mart about the “relentless” sexual harassment from her boss

• Tribunal found that the company “completely failed” to investigate Harriott’s complaints.

• Harriott was personally awarded $30,000 for the harm she experienced as a result of the sexual harassment

• Order required Money Mart to inform employees of their Code rights

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Examples of Decisions in HRLSC cases:CD v. Walmart family status/employment

• CD worked weekdays so that she could be free to take care of her disabled grandson evenings and weekends

• Wal-Mart changed her hours of work, requiring her to work evenings and weekends. Walmart reduced her hours when she refused (bringing her under the benefits threshold)

• Tribunal issued an interim order requiring Walmart:– to allow her to retain her previous hours of work– To continue to treat her as full-time employee for the purpose of

entitlement to benefits.

• On the first day of hearing the case settled. The consent order limits CD’s schedule to specific times on weekdays when she is not required to attend to the special needs of her family member

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Public interest remediesThe Centre seeks public interest remedies at mediation and at hearings Example of negotiated settlement with nation-wide scope:

• An African Canadian client, originally from Jamaica, was employed at a national retail chain on a part time basis

• Her manager made comments to her several times blaming shoplifting in the store on Jamaicans. When the client took issue with the manager’s comment, the manager became angry and refused to continue to deal with her directly. She was eventually terminated

• At mediation, the Centre negotiated financial compensation for the client and an undertaking to develop and train staff on a new human rights policy and complaints process for all of the employer’s stores nationwide

PART 3:

REFERRING YOUR CLIENTS TO THE HUMAN RIGHTS LEGAL SUPPORT CENTRE

How to Refer Clients to the Human Rights Legal Support Centre

• STEP 1:Complete An Initial Screen of the Situation

Ground + Area = DiscriminationLeave additional questions like this to us: • Does the a union assisting already? • How long ago did the discrimination take place?• Should this actually go the Canadian Human

Rights Commission? (i.e. federal jurisdiction)

How to Refer Clients to the Human Rights Legal Support Centre

• STEP 2:Advise your Client of the Centre’s resources for clients:• Phone intake, no “walk-ins” unless required

as an accommodation• translation services• Accommodation• time-sensitive services where urgent

How to Refer Clients to the Human Rights Legal Support Centre

• STEP 3Provide your Client with Practical Tips and Information to Call the Centre• Wait times on intake• Toll free and local numbers for intake

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Publications

See www.hrlsc.on.ca for materials on everything from general information about pregnancy to specific self-help materials on remedies and time limits at the Tribunal.

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HRLSC Contact Information

Human Rights Legal Support CentreTel: (416) 314-6266Toll Free: 1-866—625-5179TTY: (416) 314-6651TTY Toll Free: 1-866 612-8627

www.hrlsc.on.ca