Discrimination Claims under the Human Rights Code

**Written by Adele Zhang, Summer Student at Lee Workplace Law

Every person in Canada is entitled to equal treatment without discrimination in the workplace. In Ontario, the right to equal treatment is protected by the Ontario Human Rights Code (the "Code"). If an employee believes they have experienced discrimination in the workplace contrary to the Code, they may be able to file a claim with the Human Rights Tribunal of Ontario ("HRTO").

In this blog post, we outline the general process involved with bringing a claim before the HRTO. It is important to keep in mind that every case is different, and that there may be additional steps for any given claim.

Step 1 - Determine if There are Grounds to bring a Claim

In order to bring a claim before the HRTO, the alleged discrimination must relate to a protected ground under the Code. These grounds are:

  • Race
  • Ancestry
  • Place of origin
  • Colour
  • Ethnic origin
  • Citizenship
  • Creed
  • Sex
  • Sexual orientation
  • Gender identity
  • Gender expression
  • Age
  • Record of offences
  • Marital status
  • Family status
  • Disability

The HRTO must also have legal authority to deal with the claim. Claims against federally regulated companies fall outside the HRTO's jurisdiction. Additionally, the subject matter of the claim cannot have been previously brought before a court or been the subject of a court decision.

Step 2 - File an Application
If there appears to be a Code violation, an employee can file a completed application form with the HRTO. This must be done within 1 year of the alleged discriminatory incident.

The application outlines the essence of the complaint including who the employee believes is responsible for the alleged violation, and the remedy they seek. The relief sought is usually monetary, but the employee can also suggest changes to the employer's policies or practices as a result of the claim.

The application form can be accessed and filed online: HRTO: Forms & Filing | Tribunals Ontario.

Step 3 - Response to the Application
After the employee files the application, the employer will receive a notice from the HRTO and a copy of the application. The employer then has thirty-five days to file a response.

In the response, the employer will describe its position on the matter, and outline information such as whether it previously knew about the human rights concern, whether it investigated the allegation, and if it has a human rights workplace policy.

Step 4 - Voluntary Mediation
After the parties have filed their application and response, they will have an opportunity to attend mediation. If both parties agree to the mediation, they will meet with an HRTO appointed mediator whose role is to help facilitate a settlement agreement. Mediation is confidential; anything which is said during mediation will not be considered by the adjudicator who ultimately decides the claim.

If a settlement is reached, the parties will complete and file a settlement form with the HRTO. Once received, the HRTO will issue a letter to acknowledge the settlement and close the file.

If the parties do not attend at mediation, or if no settlement is reached at mediation, the application will then proceed to a hearing.

Step 5 - Before the Hearing

Prior to the hearing, both parties will receive a Notice of Hearing from the HRTO which outlines the date, time and format for the hearing.

Within twenty-one days of receiving the Notice of Hearing both parties must:

  • Provide the other side with any documents that are relevant to the application; and
  • File a Statement of Delivery confirming that the requirement has been met with the HRTO.

Following which, at least forty-five days before the hearing, both parties must deliver to the other party and the HRTO:

  • A list of all witnesses and a statement of the witnesses' intended evidence; and
  • A list of all documents that the party plans to rely on at the hearing and a copy of each document or confirmation that it has been provided.

Step 6 - The Hearing
During the hearing, each party will present their arguments and evidence before an adjudicator who will make a binding decision.
Following the hearing, the adjudicator will issue a written decision explaining the results. If the hearing lasts less than 3 days, this decision will be issued within 3 months. If the hearing lasts longer than 3 days, it will be issued within 6 months.

Concluding Remarks:
From determining the violation to collecting evidence, human rights claims can be complex. Employers and employees alike are encouraged to seek legal assistance in such cases. If you have any further questions about the HRTO process, please feel free to contact us. Lee Workplace Law would be happy to assist.