A number of our Firm's recent
blogs have painted a picture of what consequences arise when an
employer is found to have violated the Human Rights Code
with respect to its employees. Hopefully by now you have a
better understanding of how to ensure your company and its
employees do not engage in discriminatory conduct in the workplace,
but you might not know what to do if you are named in an
Application to the Human Rights Tribunal. The following is a
brief primer for responding to a Human Rights Application in
Timeline for Filing a Response
If an Application is filed against
you or your company, the Tribunal will deliver you a copy of the
Application and a notice directing you to file a Response within 35
days. The Response is completed on the Tribunal's Form 2,
and can be submitted online or by conventional paper
delivery. Your Response is delivered to the Tribunal only,
and the Tribunal will forward a copy to the Applicant. Upon
receiving the Response, the Applicant will then have 20 days to
file a Reply to the Response.
Substance of Response
Completing the Response to an
Application is your opportunity to tell the Tribunal your side of
the story. You will be prompted to answer such questions as:
whether the Applicant told you about their human rights concern;
whether you investigated a complaint; whether you have a human
rights policy in effect; and how you respond to the particular
allegations made against you or your company by the
Applicant. If your organization has a relevant policy in
place, as it is supposed to, you will be required to submit it
along with your Response. Likewise, any documents concerning
an internal complaint, investigation, or resolution must be
submitted with your Response.
The Response is also your chance to
raise any preliminary issues to the Application and ask the
Tribunal to dispose of it without proceeding to hearing.
Common preliminary objections include: the complaint has already
been determined by a different Tribunal or Court, or that the
parties have agreed to a settlement and the Applicant has signed a
release. Other preliminary issues may require the Tribunal to
defer hearing the complaint if its substance is already before a
different Tribunal or Court, such as a grievance arbitrator, the
Labour Board, or Small Claims Court. If the substance of the
complaint has been, or is currently, in front of another Tribunal
or Court, you are required to produce the relevant documents to the
Failure to file a Full Response
It is important to file your
Response fully and in a timely manner. If the Tribunal is not
satisfied that you have completed Form 2 adequately, they may send
your Response back to you and give you 20 days to address any
missing information and re-file the Response.
If your Response remains
insufficient or incomplete, the Tribunal will accept it at face
value, and if you have not properly responded to the allegations
made against you, the Tribunal may assume that you are admitting to
Preparing the Expected Evidence
You will not have to provide all of
your relevant documents at the time that you file a Response, but
you will have to make a list of what documents exist, why they are
relevant, and who has the documents (whether you or your company,
the Applicant, or some third party). Typically, the list will
contain such documents as your company's workplace
discrimination, and violence and harassment policies, employee
handbooks, employee records, and any photographs, notes or
correspondences relevant to the allegations.
You will also have to list the
names of persons who may serve as witnesses on your behalf.
The witness list is for use by the Tribunal only, and is not
revealed to the Applicant.
Declaration and Signature
You are responsible to ensure that
your Response is as complete and accurate as possible, and you will
be required to sign a declaration on the Response Form attesting to
This primer provides only a simple
overview of your Responsibilities and options in filing a Response
to an Application under the Human Rights Code in
Ontario. There may be opportunities to have the Application
dismissed at an early stage if the Application has been filed out
of time, another proceeding is pending dealing with the same issues
or there is no reasonable prospect of success based on the contents
of the Application. In order to ensure that you are properly
defending your company and employees against a human rights
Application, you would be well-advised to consult a lawyer.
The professionals at CCPartners have extensive experience in
responding to Applications under the Human Rights Code, and
providing advice to our clients on the best ways to resolve such
HERE for a list of lawyers who can assist with all
manner of human rights issues.
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.
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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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