This is a reminder that the Human Rights Code Amendment
Act, 2006 comes into force on June 30, 2008, with
important implications for employers. The Act, which was passed in
December 2006 as Bill 107, amends the Ontario Human Rights
Code and significantly changes the way in which human
rights complaints will be administered in the province. The Human
Rights Tribunal of Ontario estimates that the changes will result
in the number of complaints considered by the Tribunal growing from
approximately 150 to a staggering 3,000 per year. Several critical
changes are highlighted below:
Narrowing the Human Rights Commission's Role
Eliminating the gatekeeper function of the Commission
In the past, an individual would file a complaint with the Human
Rights Commission. The Commission then investigated the matter and
it was settled, dismissed, or referred to the Tribunal for a
hearing. In our experience, only a small percentage of cases went
to the Tribunal for a hearing.
As of June 30th, individuals may now apply directly to the
Tribunal for a hearing, under Part IV of the Human Rights
Code. While the Commission will retain some ability to
initiate inquiries and make applications to the Tribunal in matters
of public interest, it will no longer control the flow of issues
considered by the Tribunal and its role in the application process
will be greatly diminished. Applicants may, therefore, proceed
directly to a hearing before the Tribunal (although the Tribunal
will also have the power to require parties to participate in
alternative resolution methods, such as mediation). A Human Rights
Legal Support Centre will also be created to assist applicants with
the filing of their applications and to provide them with other
free legal support.
Expanding the Human Rights Tribunal's Role
Broadening the scope of remedial powers granted to the
Previously the Tribunal could only award up to a maximum of
$10,000 for mental anguish. The amendments remove that restriction
on the quantum of compensation. The Tribunal may now direct a party
to pay any amount it deems appropriate for an infringement of a
right and the subsequent injury to an applicant's dignity,
feelings, and self-respect. Stay tuned: employers may end up paying
significantly higher monetary awards than under the old
Extending the Limitation Period for Filing a Claim
Limitation period expanded to one year
The current limitation period for an application has been
increased from six months to one year from the date of the incident
complained of (or, if there was a series of events, within one year
of the last incident in the series). If the time limit is passed,
applicants may also apply for an extension, if the Tribunal is
satisfied that the delay was incurred in good faith and no
substantial prejudice will result to any person affected.
Individuals with outstanding complaints have two options
As of June 30, 2008, all new applications will be brought
pursuant to the amended Human Rights Code. Under
transitional provisions, individuals with applications outstanding
at the Commission on June 30, 2008 have two options: (a) abandon
outstanding applications with the Commission and re-file with the
Tribunal; or (b) continue their applications with the Commission.
The Commission will retain all of its original powers during a
transitional period up to December 31, 2008, including the power to
dismiss cases or refer them to the Tribunal. However, if on January
1, 2009 the application remains outstanding, the applicant will
have until June 30, 2009 to file an application with the Tribunal
to continue the matter with it.
It is likely that the amendments will result in an increased
number of human rights hearings and higher monetary awards in
Ontario. Employers should prepare themselves for the changes, such
as by reviewing their policies, practices, and processes to ensure
that they comply with the Code -- and by readying themselves for an
increase in Tribunal hearings and potential liabilities.
More information on the amendments to the Ontario Human
Rights Code and on the transitional provisions can be
found at http://www.hrto.ca.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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.
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).