Canada: Human Rights Tribunal Of Ontario Hints At Broadening Employer Liability

While we recently provided an update on the limits of the duty to accommodate, three recent decisions of the Human Rights Tribunal of Ontario (Tribunal) serve as a reminder of the Tribunal's broad discretion to award damages where warranted. 

The Tribunal in Morgan v Herman Miller Canada Inc1 awarded a complainant damages not because discrimination had taken place, but because the employer failed to investigate the complaint of discrimination.

In Fair v Hamilton-Wentworth District School Board2, the complainant received an award that included reinstatement and nine years of back pay after the Tribunal found a breach of the Ontario Human Rights Code (Code).

In Monrose v Double Diamond Acres Limited,3 the Tribunal awarded a migrant worker no longer living in Canada significant damages for a violation of his dignity and a breach of his right to be free from reprisal.

Morgan v Herman Miller Canada Inc. (Herman Miller)

The applicant in Herman Miller complained to the Tribunal that he had suffered discrimination and harassment because of his race. He alleged he was routinely assigned menial tasks outside of his job description, was required to work outside regular business hours, received an email with racist overtones, was unfairly put on probation, was denied an investigation of his complaints and, when he was terminated, was retaliated against.

The Tribunal did not agree that the applicant had been discriminated against. It found that the applicant's job position was new and evolving and the job advertisement for his position made clear that work may have to be performed outside regular work hours. In addition, the Tribunal found that the employer was a small company that expected all its employees to help with tasks that the applicant viewed as menial.

Although it acknowledged the applicant had been put on probation, the Tribunal found this had occurred because he disclosed confidential information to one of the company's biggest contractors. Finally, the Tribunal found that the impugned email did not contain any racist statements.

While the Tribunal found no discriminatory treatment, it nonetheless found the Code had been breached and awarded the applicant $70,799.70 as compensation for lost wages and injury to the applicant's dignity, feelings and self-respect. The Tribunal based its award on the employer's failure to investigate the applicant's complaint of discrimination and for having terminated the applicant in what the Tribunal concluded was an act of reprisal.

The Tribunal found two issues to be critically important:

  • The applicant raised his concerns about racial discrimination with the employer's human resources manager and director of sales. An email outlining his concerns was forwarded to the president of the company. Despite assurances by the human resources manager that the applicant's concerns would be investigated, no investigation was undertaken.
  • The employer's witnesses offered a number of explanations for the applicant's termination. None of the explanations would give rise to a breach of a protected ground under the Code; however, the varied explanations caused the Tribunal to question whether the termination was actually an act of reprisal against the applicant for having raised his complaint.

The Tribunal made clear it did not have to find that the applicant was discriminated against in order to award damages. It was sufficient that the applicant genuinely believed the respondents were infringing his Code rights and that he had based a complaint that was not investigated (and that ultimately led to his termination) on those beliefs.

Furthermore, the Tribunal noted a complainant does not need to have filed a complaint in writing to his or her employer in order to merit an investigation. The Tribunal was also critical of the fact the employer did not address the applicant's complaint for a month before deciding to terminate him. This caused the applicant a great deal of uncertainty in the period leading up to his termination. The employer was ordered to pay the applicant $15,000 in compensation for injury to dignity, feelings and self-respect.

The Herman Miller case teaches employers two valuable lessons. First, it is important to investigate human rights complaints in a timely manner, whether or not those complaints are deemed "believable" at first blush.

Second, even where a complaint is not well founded, an employer can be liable for terminating an employee for having made the complaint. While a termination for cause may be permissible when an employee makes a complaint that he or she knows to be unfounded, employers are well advised not to terminate an employee when a complaint in good faith is not well founded.

Fair v Hamilton-Wentworth District School Board (Hamilton-Wentworth)

The applicant in Hamilton-Wentworth had been employed as a supervisor of regulated substances, namely asbestos, in the workplace. In 2001, she developed an anxiety disorder related to her fear about the specific responsibilities of her job. Namely, she was afraid that if she made a mistake about asbestos removal in the workplace, she could be held personally liable for a breach of the Occupational Health and Safety Act.

The applicant received long-term disability benefits from 2001 until 2004, at which time she was deemed capable of returning to employment. No suitable position into which the applicant could return was identified. The applicant was terminated by the respondent in July of 2004, based on the evidence of their expert that it was unlikely the applicant would be able to return to her position or to a position with the same level of liability.

The Tribunal found that the board should have investigated possible forms of accommodation with regard to the applicant's disability as early as 2002, responded to the applicant's efforts to obtain information about the essential duties of her position for the purpose of obtaining further medical information, attended a meeting to discuss a return-to-work program that had been arranged by the employer's disability benefits provider, and requested clarification where there was ambiguity in the medical information provided by the applicant.

Its failure to do so and its decision to terminate the applicant was a breach of the Code. Especially problematic for the employer was that the applicant had made it clear there were some positions she was qualified to return to—a fact bolstered by the Tribunal's finding that the board had even interviewed her for one such position.

On the date the Tribunal issued its damages award, the applicant had been absent from the workplace for nine years. To compensate the applicant for her losses, the Tribunal reinstated the applicant and awarded her approximately nine years' back pay in the amount of $419,283.89.

The Hamilton-Wentworth decision is an important reminder to employers to take all steps to the point of undue hardship to ensure that employees receive appropriate workplace accommodations. A failure or refusal to do so may result in a significant damages award.

Furthermore, employers may be required to reinstate a former employee even where there are significant delays between the date of a termination and the date the Tribunal hears a complaint of harassment or discrimination. In Hamilton-Wentworth, the Tribunal acknowledged the delay was largely a result of its own processes. Despite this, it awarded the applicant a significant quantum of damages and a return to her former employment. The Tribunal found that no prejudice had arisen in the employer's ability to present its case to the Tribunal and was unwilling to penalize the applicant for delays that were in no way her fault.

Monrose v Double Diamond Acres Limited (Monrose)

In Monrose, the applicant was a migrant worker employed by the respondent under the Seasonal Agricultural Workers Program who was contracted to work from January to September of 2009. He was terminated on June 8, 2009, and sent back to his home country. The applicant alleged he had been terminated as a reprisal for voicing human rights complaints about allegedly discriminatory comments made by both a supervisor and the owner. He also claimed the manner in which he was terminated was discriminatory.

While the Tribunal did not agree that the matter of dismissal was discriminatory, it found that the applicant had been subject to discriminatory comments on the basis of his racial background that gave rise to discrimination against him. In addition, the Tribunal held that his termination occurred as a reprisal for applicant having voiced a human rights complaint to his employers about the discriminatory comment.

Two findings made by the Tribunal are of special interest:

  • The Tribunal found only one instance of a racially discriminatory comment. However, the comment (calling the workers, all Black men, "monkeys") was found by the Tribunal to be so egregious that the single incident triggered a violation of the Code.
  • The evidence of the applicant alleging derogatory comments was not corroborated by other witnesses. However, the Tribunal placed a certain amount of weight on the evidence of an expert in the field of migrant workers who stated that such persons are in a position of great vulnerability. The Tribunal held that this vulnerability could explain the lack of corroboration by other workers.

Consequently, even though there was no evidence to corroborate the allegations of discriminatory comments, the Tribunal awarded the applicant damages of $5,500 for lost wages, general damages of $3,000 for damage to his feelings, dignity and self-respect in relation to the monkey comments, and $15,000 in damages for losses associated with the violation of the applicant's right to be free from reprisal. The Tribunal noted, "The respondents' response to this complaint was not to investigate his concerns but to terminate his employment."

Non-monetary remedies were also awarded. The employer was required to implement a human rights policy with a complaints process approved by the Ontario Human Rights Commission (Commission) and to require supervisory employees to participate in the Commission's online human rights training within 120 days of the Tribunal's decision.

Employers reading the Monrose decision should be mindful of the need to investigate any human rights complaints raised by an employee, and certainly not to penalize an employee making a complaint. The Monrose decision also provides a valuable reminder that even a single act of uncorroborated discrimination can give rise to a violation of the Code. The decision also signals the Tribunal's desire to protect vulnerable workers.

The author wishes to thank summer student Dina Peat for her help in preparing this legal update.


1 Morgan v Herman Miller Canada Inc, 2013 HRTO 650.

2 Fair v Hamilton-Wentworth District School Board, 2013 HRTO 440.

3 Monrose v Double Diamond Acres Limited, 2013 HRTO 1273.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions