Human Rights Defence

What is the Human Rights Tribunal of Ontario?

The Human Rights Tribunal of Ontario (HRTO) is the tribunal that adjudicates applications alleging violations of rights protected by the Ontario Human Rights Code.

When an employee or any other applicant brings an HRTO application against an employer, the employer may be named as a respondent. The employer must then respond to the allegations through the HRTO’s established process.

Under the HRTO’s current process, a respondent generally has 35 days to file a Response (Form 2) after receiving the application and notice. The response must address the allegations and include the relevant facts and allegations on which the respondent relies.

Missing a response deadline can create significant procedural problems. The HRTO states that where a respondent fails to respond, the tribunal may proceed with the application and, in appropriate circumstances, make an order against the respondent.

Because procedural requirements can change, employers should review the applicable HRTO rules and notices carefully and obtain legal advice promptly from a qualified employment lawyer.

What is discrimination under the Ontario Human Rights Code?

Under the Ontario Human Rights Code, discrimination generally involves unequal treatment or an adverse impact connected to a protected ground.

In the employment context, discrimination can potentially arise during:

• Recruitment and hiring
• Interviews and job applications
• Promotions
• Compensation and benefits
• Scheduling and workplace assignments
• Performance management
• Discipline
• Termination
• Accommodation
• Workplace policies and practices

The Code recognizes numerous protected grounds, including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, and disability. The applicable protected grounds depend on the part of the Code and the circumstances involved.

An employer responding to a discrimination complaint should avoid assuming that a legitimate business reason automatically resolves the issue. The decision-making process, evidence, communications, timing, policies, and treatment of comparable employees may all be relevant.

What are Protected Grounds?

Protected grounds are characteristics or circumstances identified by human rights legislation that cannot generally be used as a basis for discriminatory treatment where the Code applies.

Examples relevant to employment can include:

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

The Code also addresses discrimination because of association with a person identified by a prohibited ground.

For employers, identifying the alleged protected ground is an important part of understanding a complaint. The employer should then assess the workplace decision or conduct in its full factual context.

What is workplace harassment under the Ontario Human Rights Code?

Workplace harassment can involve conduct that violates human rights protections when it is connected to a protected ground or otherwise falls within applicable workplace legislation.

The Ontario Human Rights Code specifically protects employees from harassment in the workplace because of sex, sexual orientation, gender identity, or gender expression.

Employers may also have obligations under other Ontario workplace legislation and common-law principles depending on the circumstances. Consequently, a workplace harassment allegation may involve issues beyond the HRTO proceeding itself.

When an employer receives a harassment complaint, an appropriate response may include promptly reviewing the allegation, determining whether an investigation is required, preserving evidence, following applicable policies, and taking appropriate steps based on the findings.

What is the duty to accommodate?

Accommodation refers to adjustments made to remove or reduce barriers connected to a protected ground, where required by the human rights law.

In employment matters, accommodation frequently arises in relation to disability, family status, creed, and other protected grounds.

An employer may need to consider reasonable workplace modifications rather than simply applying a workplace rule identically to every employee. Depending on the circumstances, accommodation may involve changes to duties, scheduling, work location, procedures, equipment, or other workplace arrangements.

Accommodation is generally an individualized process. Employers should assess the employee’s needs, available options, operational requirements, and relevant evidence rather than relying on assumptions.

What is undue hardship?

Undue hardship is a legal threshold that can limit an accommodation obligation under the Ontario Human Rights Code.

The Code identifies cost, outside sources of funding, and health and safety requirements as considerations in determining undue hardship.

Importantly, an employer should not treat ordinary inconvenience, employee preference, or unsupported assumptions as automatically establishing undue hardship.

Employers should carefully document the accommodation process, including the options considered, information requested, alternatives explored, and reasons particular arrangements may or may not be workable.

Where an accommodation request becomes contentious, an employment lawyer can help an employer assess their legal obligations and develop a defensible approach.

What is reprisal?

Reprisal refers to adverse treatment connected to a person’s exercise or enforcement of rights under the Human Rights Code or their participation in proceedings covered by the Code.

For example, the HRTO’s guidance explains that reprisal can involve punishing someone for claiming or enforcing their Code rights, participating in Code proceedings, or refusing to infringe on another person’s Code rights.

Employers should therefore exercise particular care when making employment decisions after an employee raises a human rights concern or participates in a human rights proceeding.

A legitimate workplace decision can still require careful documentation and consideration of timing and circumstances where a reprisal allegation may arise.

Human Rights Complaint Defence for Ontario Employers

A human rights complaint can present legal, operational, and reputational concerns for an employer. A thoughtful defence begins with understanding exactly what has been alleged.

Depending on the circumstances, an employer’s HRTO defence may involve:

• Reviewing the HRTO application and identifying each allegation.
• Determining which protected grounds and Code provisions are relied upon.
• Gathering relevant employment records and communications.
• Reviewing workplace policies and procedures.
• Identifying witnesses and relevant decision-makers.
• Assessing the employer’s reasons for the challenged decision.
• Reviewing accommodation efforts and communications.
• Assessing whether reprisal or harassment allegations have been raised.
• Preparing a complete and factually supported Response.
• Developing an appropriate litigation and resolution strategy.

The HRTO requires a respondent’s Form 2 Response to address each allegation and provide the additional facts and allegations on which the respondent relies.

Responding to an HRTO Application

If your business receives an HRTO application, avoid treating the document as an ordinary employee complaint.

The application may contain allegations concerning events that occurred months or years earlier. It may also identify multiple incidents, workplace decisions, managers, or alleged protected grounds.

An employer should preserve potentially relevant documents immediately. These may include:

• Employment agreements
• Workplace policies
• Employee handbooks
• Emails and messages
• Performance records
• Attendance records
• Accommodation correspondence
• Medical information handled in accordance with applicable privacy and employment obligations
• Investigation records
• Disciplinary documentation
• Termination documentation
• Meeting notes
• Relevant HR records

The employer should then assess the allegations individually rather than responding with broad or unsupported denials.

The HRTO’s current guidance indicates that respondents should consider matters such as whether the applicant raised the concern with the employer, whether the employer investigated, whether the employer had relevant human rights policies, and how the employer responds to the allegations and requested remedy.

Building a Workplace Discrimination Defence

A discrimination complaint defence should be based on evidence, not on assumptions.

An employer may need to establish the factual circumstances surrounding the workplace decision and explain the legitimate reasons for it. Relevant evidence can include contemporaneous records, communications, workplace policies, performance documentation, and testimony from people involved in the decision.

The defence may also require an assessment of whether the alleged conduct actually relates to a protected ground under the Code and whether the evidence supports the allegations.

Because each human rights application is different, the appropriate defence strategy depends on the specific allegations, evidence, applicable laws, and procedural history.

Workplace Harassment Defence

Employers should take workplace harassment allegations seriously, particularly where the allegations involve discrimination or protected grounds.

A workplace harassment defence may involve reviewing:

• What was allegedly said or done
• When and where the conduct occurred
• Who was involved
• Whether the conduct was reported
• Whether the employer investigated
• What policies were in place
• What steps the employer took after receiving the complaint
• Whether disciplinary or corrective action was taken
• Whether the allegation is connected to a protected ground

An employer should avoid destroying, altering, or selectively preserving potentially relevant records. Proper documentation can become important if the matter proceeds through the HRTO or any other legal process.

How Can Our Employment Lawyer Help You?

Our employment lawyers can assist Ontario employers with a range of human rights matters.

Human Rights Compliance

We can advise employers on workplace policies, practices, and their obligations under the Ontario Human Rights Code.

HRTO Applications and Responses

We can review an HRTO application, identify the allegations and legal issues, assist with evidence gathering, and help prepare a response addressing the allegations.

Discrimination Complaints

We can advise employers on responding to allegations of workplace discrimination involving protected grounds under the Ontario Human Rights Code.

Accommodation Matters

We can assist employers in assessing accommodation requests, communicating with employees, reviewing possible workplace arrangements, and evaluating whether proposed solutions are legally and operationally appropriate.

Workplace Harassment

We can provide legal guidance concerning workplace harassment allegations, investigations, policies, documentation, and potential HRTO proceedings.

Reprisal Allegations

We can help employers assess allegations that an employee experienced adverse treatment after exercising or asserting human rights.

Legal Strategy:

We review evidence, identify legal issues, and help employers determine appropriate next steps.

Human Rights Litigation

Where a dispute proceeds before the HRTO, legal counsel can assist with procedural requirements, evidence, submissions, settlement discussions, hearings, and other stages of the proceeding.

Key Takeaways

• Human rights defence helps Ontario employers address discrimination, harassment, reprisal, and accommodation claims.
• HRTO defence includes reviewing complaints, gathering evidence, and preparing responses.
• Employers must meet their duty to accommodate up to the point of undue hardship.
• Strong defences rely on relevant workplace records, policies, and evidence.
• In such cases, our Ontario employment lawyer can guide employers through complaints and HRTO proceedings.