Seema Saadi was terminated by her employer, a government-funded
provider of settlement services for immigrants, just 6 weeks after
she had been hired. The employee filed a human rights complaint
with the Human Rights Tribunal of Ontario (Tribunal), alleging
discrimination on the basis of her race, colour, ancestry, place of
origin, disability (subsequently abandoned), ethnic origin, creed
and sex. Most of these claims were dismissed by the adjudicator,
but he did find that the employer's policies on workplace dress
(which required 'business attire') and its ban on heating
smelly food in the microwave in the lunch room were discriminatory.
As a result, her termination was also deemed discriminatory.
On judicial review to the Divisional Court1, Molloy J
found many deficiencies in the reasons of the Tribunal, all of them
stemming from the lack of factual evidence to support the findings
of discrimination. A new hearing at the Tribunal was ordered,
before a different adjudicator.
As a preliminary matter, the Divisional Court was prepared to
admit fresh evidence – or rather evidence that the
adjudicator had refused to consider at the hearing. The first of
these pieces of evidence was a letter from a key witness for the
employer, in which he explained why he could not attend the
Tribunal hearing. Because the employer was self-represented, it was
incumbent on the adjudicator to explain that it would be possible
to seek an adjournment in order to permit the witness to testify,
especially in light of the importance of the witness's
testimony about matters in issue. The adjudicator had drawn an
adverse inference from the witness's failure to testify. All of
this was a breach of procedural fairness. The second piece of fresh
evidence submitted by the employer was a photograph of someone
wearing the kind of clothing which Saadi had worn to work which was
simply a visual aid and there was no reason in principle to exclude
As for the microwave policy, the Divisional Court just
didn't buy the contention that it discriminated against any
person or group of persons on one of the enumerated grounds.
Speaking of the policy's enforcement by the employer, the court
'I do not see how the ethnicity and ancestral rights of a
Bengali-Canadian Muslim [Saadi] are adversely affected by being
prevented from reheating somebody else's Tunisian food'.
The adjudicator's findings on this simply had no rational
basis. The same result was reached in relation to the dress code.
There was no evidence to support the allegation that the dress code
was applied so as to discriminate against Saadi, and nothing in the
dress code that prevented her from wearing clothing appropriate to
her religious beliefs. Wearing an old sweatshirt and baggy
trackpants might satisfy Saadi's religious requirement to wear
'modest' dress, but could validly be objected to by the
employer as unprofessional in the workplace. By refusing to hear
the testimony of the key witness or to accept what he did hear
about suspicious behaviour on Saadi's part, the adjudicator
unreasonably concluded that discrimination was the real cause for
her termination. The employer was awarded its costs, payable by
Saadi – something the Tribunal could not have ordered
even if it originally made the correct decision.
This is the first case since the amendments to the Human Rights
Code in which the Divisional Court has struck down a decision of
the Tribunal and ordered a new hearing, reconvened by a differently
constituted panel. Accordingly, it demonstrates a willingness by
the Divisional Court to question the Tribunal's decision-making
with respect to evidentiary standards, procedure and outcome. This
is especially significant considering the high degree of deference
usually afforded to the Tribunal.
1 Audmax Inc. v Ontario Human Rights Commission, 2011
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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