Canada: Human Rights: Investigating Discrimination

Last Updated: April 23 2018
Article by David M. Rogers

Can a service provider, such as the City of Toronto, be found in breach of the Human Rights Code R.S.O. 1990, c. H.19 where one customer makes racial slurs to another customer and an employee of that service provider fails to properly address the situation? This is an important question recently considered by a three member panel of the Ontario Divisional Court in City of Toronto v. Josephs, 2018 ONSC 67. The answer, as is so often the case, is: it depends.

The Incident

Kevin Josephs was a paralegal trainee on January 7, 2013, and he attended the Court Services Office of the Toronto East Provincial Court to conduct business. Mr. Josephs identifies as a visible person of Afro Caribbean descent. After being served by an intake clerk, he discovered an error and was advised that he would have to speak to a supervisor in order to rectify the problem. He was given a number for his place in the queue and although the number had not been called, he approached one of the counter clerks asking to speak to a supervisor.

Another customer, V.F., who was waiting in the queue, told Mr. Josephs to wait his turn and then raised his tone to include racial slurs. N.P. witnessed this and approached one of the clerks to complain about V.F.'s behaviour. The clerk, Mr. Sanagustin, advised that if the altercation escalated into something physical, they would call security but most verbal disputes simply get sorted out by themselves.

Mr. Josephs complained to the team leader of the counter staff and she went to get assistance from the court officer. However, seconds later, N.P. told Mr. Josephs that the City was not going to do anything and so Mr. Josephs also reported the incident to a security guard. The security guard confronted V.F. and told him he would have to leave. Minutes later, a court officer attended and spoke to N.P. and to Mr. Josephs, and then also told V.F. to leave the courthouse, which he did.

Mr. Josephs felt that he had been discriminated against and that the City was responsible. He therefore decided to file an application against the City of Toronto (as well as the Toronto Police Services Board) with the Human Rights Tribunal of Ontario, alleging discrimination with respect to services, goods and facilities on the basis of race and colour.

The Tribunal Decision

The Tribunal framed the issue as "what duty, if any, does a service provider owe to a customer who has been racially harassed by another customer." The Tribunal found that the City of Toronto, as a service provider, had an obligation to take prompt, effectual and proportionate action when it became aware of the harassment. The response need not be perfect, but simply reasonable in the circumstances. The Tribunal then went on to make important findings on the conduct of those involved, specifically that all but one of the City staff and security officers at the court office had acted promptly and appropriately, and met the reasonableness standard.

Despite these findings, the Tribunal found that Mr. Sanagustin had discriminated against Mr. Josephs as his response was not reasonable and was inadequate in terms of what is required under the Human Rights Code.

The Tribunal therefore ordered the City to pay $1,500 in damages to Mr. Josephs and to provide human rights training to its court service staff. In doing so, the Tribunal gave great weight to Mr. Josephs' brief and incorrect belief that the City was not investigating the racial slur. Because Mr. Josephs thought, for a very brief period of time, that nothing was being done, he was entitled to damages even though this was an erroneous assumption as the team leader was in fact responding promptly and reasonably.

The Divisional Court Appeal

The City of Toronto appealed to the Divisional Court and the Court overturned the Tribunal's decision and dismissed the Human Rights application against the City, with costs.

In doing so, the Court noted that N.P. made an incorrect assumption when she concluded that the City was not responding and communicated this assumption to Mr. Josephs. The Tribunal then wrongly focused on Mr. Josephs' temporary subjective belief that nothing was being done by the City. In fact, the situation was resolved within 2.5 minutes, and objectively, the City as a whole was not acting in such a way as to foster a poisoned environment.

The Court went on to conclude that the Tribunal applied disproportionate weight to Mr. Sanagustin's inaction. His comments, although inadequate, had to be viewed in the context of him being a non-supervisory employee while other responsible staff were taking appropriate and immediate action. It is the response of the corporate staff overall that should be considered as to whether the City properly addressed the situation.

Based on the Tribunal's own findings that the supervisory staff had acted promptly and reasonably in the situation, corporate responsibility could not reasonably be fixed on the City because of the inconsequential conduct of one employee.

What to take from this Decision

This decision provides important guidance for municipalities, but also to all different types of commercial service providers for best practices in dealing with human rights issues and employee oversight.

Prompt and reasonable investigation of any discrimination within a work environment must take place and the management's response as a whole must be reasonable in the circumstances.

A service provider should not be held to have breached the Human Rights Code where the actions of one employee may be considered discriminatory when the entity as a whole was reacting properly.

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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