The Ontario Human Rights Code is an important piece of legislation which protects Ontarians from discrimination in the provision of services, contracts, employment and housing, based on their gender identity, sexual orientation, age, disability, race, ancestry, place of origin, colour, ethnic origin, citizenship or the receipt of public assistance. The Human Rights Code is essential to ensuring that members of these potentially vulnerable populations enjoy the same rights and privileges as everyone living in the province. If you do face discrimination based on one of the above characteristics, the Human Rights Tribunal of Ontario is there to receive and resolve complaints of discrimination contrary to the Ontario Human Rights Code. I’ll describe potential complaints and the complaints process below.
Discrimination isn’t always obvious. It is often the case that an organization will enact a policy with another purpose in mind that has unintended discriminatory consequences. This is known as Constructive Discrimination under the Ontario Human Rights Code. Section 11(1) of The Code defines Constructive Discrimination as:
The presence a qualification or factor that is not discrimination on a prohibited ground but that results in the exclusion restriction or preference of a group of persons who are identified by a prohibited ground of discrimination.
A discriminatory policy is only justified if the discriminatory factor is bona fide in the circumstances which will only be found if an individual or group cannot be accommodated without undue hardship on the party providing the accommodation.
These qualifying factors attempt to balance the rights of individuals to be free from discrimination with the practical reality that differential treatment is occasionally the only option. When considering whether a potentially discriminatory policy is bona fide the Human Rights Tribunal of Ontario must consider health and safety requirements, costs and outside sources of funding, if applicable. If you believe you’re facing discrimination getting the advice of a trusted legal professional is key. The Tribunal Members have a lot to consider so it’s important to present all the relevant facts necessary to establish your claim.
The first step in making a complaint under the Code is to fill out the application available on the Human Rights Tribunal of Ontario website. The form requires that applicants provide contact information, a description of the incident, the ground of discrimination being alleged, and the area of discrimination: employment, housing, contracts, goods and services etc. The form asks applicants to provide a description of the discrimination and the affect it has had on them. Remedies available include monetary and non-monetary compensation as well as a “Remedy for Future Compliance”. The final remedy is available in the interest of the public to ensure that other individuals don’t experience the same discrimination in the future.
After a complaint has been submitted, the organization being accused of discrimination is advised of the application and provided with a chance to respond. Both parties have the option of consenting to mediation. If mediation is selected a mediator will receive documents and information from both sides with the goal of finding a resolution that is agreeable to all parties. The mediator will not decide your application, and mediation discussions are confidential. Mediation is a constructive step in many proceedings and can help both parties reach an agreement without the need for a more stressful and time-consuming hearing.
If either side declines to mediate, or mediation is unsuccessful, the application will proceed to a hearing. Documents and a witness list need to be provided to the other party in advance of the hearing. At the hearing, both parties will have a chance to present documents and question witnesses in front of a tribunal member called the adjudicator. The adjudicator is a neutral party who can ask questions of witnesses and parties to clarify issues. The adjudicator cannot provide legal advice. After hearing all evidence the adjudicator will draft a written decision explaining the reasons for their ruling. If you disagree with the adjudicators ruling, there is a potential that you may be able to request that the Tribunal review the decision. Under certain circumstances, decisions of the Tribunal can come under judicial review in the courts.
No one in Ontario should have to face discrimination. The complaints process can be complex and challenging. An experienced lawyer can assist you with filing a complaint and offer valuable legal advice. If you believe you’re a victim of discrimination, call the Jasmine Daya & Co. team at (416) 967-9100 or contact us online to schedule a free consultation.
 Human Rights Code, R.S.O. 1990, c. H.19.
 Supra at s.11(1)(a), (11)(2).
 Supra at s.24(2).