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Human Rights Law (Ontario) Law
(30 September 2009)

Chapter 5 - Forms of Discrimination


  1. Overview
  2. 'Unequal Treatment' Discrimination
  3. Harassment
  4. Constructive Discrimination
    (a) Overview
    (b) Reasonable and Bona Fide Defence
    (c) Statutory Defences (Express Code Exceptions)
  5. Sexual Solicitation and Reprisals by Person in Authority
  6. General Reprisal Protection
  7. 'Associational' Discrimination
  8. Announced Intention to Discriminate
  9. Vicarious Liability Transferred to Employer
    (a) Overview
    (b) Interpretation Problems
    (c) Vicarious Liability Applies to Collective Employers, But Not to Natural Person Employers; Common Law Exception
    (d) Exceptions to s.46.3(1) Vicarious Liability Transfer
    (e) Vicarious Liability Transfer Does Not Extend to Offences
    (f) Tribunal Opinion re Vicarious Liability

------------------------------


1. Overview

As is discussed in Ch.4 ["Discrimination"], the essence of discrimination is unequal or abusive treatment of a person by another, regardless of intention or manner. But within that broad definition the Code distinguishes, and treats differently, different forms of discrimination.

These different forms are the subject of this chapter. They include:
  • Unequal Treatment

    'Unequal treatment' discrimination is prohibited with respect to:

    - services, goods and facilities: s.1;
    - accomodation: s.2(1);
    - contracts: s.3;
    - employment: s.5(1),6;

    "Equal" means subject to all requirements, qualifications and
    considerations that are not a prohibited ground of
    discrimination; [Code s.10(1)].

  • Harassment

    'Harassment' is prohibited with respect to:

    - accomodation: s.2(2), and with respect to sex 7(1)
    - employment: s.5(2), and with respect to sex 7(2);

    "Harassment" means engaging in a course of vexatious comment or
    conduct that is known or ought reasonably to be known to be
    unwelcome [Code s.10(1)].

  • Constructive discrimination [Code s.11]

    The term 'constructive', in legal usage, tends to refer to an
    indirect or even incidental form of activity. For example,
    'constructive dismissal' (of an employee) refers to the situation
    where an employee is not openly terminated, but rather where work
    conditions are just made progressively more and more intolerable
    so that eventually the law will treat the situation as equivalent
    to a firing. The term 'constructive' does not necessarily include
    (nor exclude) intentionality of the behaviour.

    While the Code elsewhere uses the terms 'direct' and 'indirect'
    discrimination [s.9: '(n)o person shall infringe or do, directly
    or indirectly, anything that infringes a right under this Part],
    the terms 'indirect' and 'constructive' are inherently similar in
    meaning.

  • Sexual solicitation and Reprisal [Code s.7(3)]

  • Reprisal (generally) [s.8]

  • 'Association' discrimination [s.12]

  • 'Announced intention to discriminate' [s.13]

  • 'Vicarious discrimination' [s.46.3; also s.46 "person"]

2. 'Unequal Treatment' Discrimination

'Unequal treatment' discrimination is discrimination in its primary form, and arguably all the other forms of discrimination can be considered to be contained within it.

It is specifically prohibited with respected to most protected activities [ie. "every person has a right to equal treatment with respect to ..."]:
  • services, goods and facilities: s.1;
  • accomodation: s.2(1);
  • contracts: s.3;
  • employment: s.5(1),6.
The Code, in a not particularly helpful way, defines "equal" to mean [s.10(1)]:
10(1)
"equal" means subject to all requirements, qualifications and
considerations that are not a prohibited ground of discrimination;J

3. Harassment

'Harassment' is defined in the Code [s.10(1)] to mean:
s.10(1)
"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
People have the right to be free from 'harassment' with respect to the following human activities:
  • by landlords, their agents or other occupants of the same
    building with respect to the occupation of accomodation [s.2(2)]
    - and specifically because sex [s.7(1)];

  • by employers, their agents or other employees [s.5(2)] - and
    specifically because sex [s.7(2)];

4. Constructive Discrimination

(a) Overview

In addition to the primary prohibition against both "directly or indirectly" infringing Code human rights [Code s.9], the Code also sets out a "constructive" discrimination form [Code s.11(1)]:
... where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, ...
It is hard to imagine how 'constructive' discrimination is distinct from 'indirect' discrimination [Code s.9], and the two terms might normally be considered duplicative, but in any event 'constructive' discrimination can avail itself of two types of statutory defences.

(b) Reasonable and Bona Fide Defence

The first of these defences is that "the requirement, qualification or factor is reasonable and bona fide in the circumstances" ["bona fide" means in good faith, or absent malice or wrongful intent; essentially it distinguishes intended from unintended discrimination] [Code s.11(1)]. As this is a defence the burden of proving it lies on the respondent advancing it.

Note however that this defence also requires the respondent to prove that accomodation of (ie. efforts to facilitate) the applicant's needs would cause "undue hardship" to the respondent. Thus the respondent must prove to the Tribunal that [Code s.11(2)]:
... the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any;
This defence is essentially a 'least drastic means' standard similar to that embodied in Charter s.1. That is, in order for the defence to apply, the respondent must meet a duty to engage in reasonable and good faith efforts to accomodate the needs of the discriminated-against person. This duty is not absolute in terms of what is humanly possible, but rather is limited by the concept of "undue hardship". "Undue hardship", in turn, is assessed in light of the 'cost' (including outside sources of funding, if any) and 'health and safety requirements' (if any') and as determined in light of standards established under the Regulations [Code s.11(3)] (to date there are no Regulations promulgated on this issue).

These standards of 'reasonable' and 'undue' are (necessarily) inherently vague, and they essentially amount to a delegation to the Tribunal of a discretion to allow and disallow the defence in accordance with their own views of social morality on the issues involved in any particular case.

(c) Statutory Defences (Express Code Exceptions)

The second 'defence' is really just whatever express statutory (Code) exceptions apply, ie. if [Code s.11(1)(b)]:
... it is declared in this Act, other than in section 17, that to
discriminate because of such ground is not an infringement of a
right.
Such exceptions are scattered throughout the Code and are discussed in three places in this Legal Guide, the first being in relation to "protected activities" [Ch.2], the second being in relation to the specific enumerated and 'prohibited grounds' of discrimination [Ch.3], and the third being general defences discussed in Ch.6: "General Exceptions".

Note however that the s.17 'disability' exception [discussed in Ch.3, s.10(c): "Prohibited Grounds: Discrimination: Exception for Disability-Related Incapacity"] is NOT a statutory defence against a 'constructive' discrimination finding (though of course it would be against a 'regular' direct discrimination finding). The s.17 exception would (otherwise) be made out:
  • where the discrimination results ONLY from the fact that "the
    person is incapable of performing or fulfilling the essential
    duties re requirements attending the exercise of the right", and

  • where incapacity "cannot be accommodated without undue hardship
    (as determined in light of standards established under the
    Regulations) on the person responsible for accommodating those
    needs, considering the cost, outside sources of funding, if any,
    and health and safety requirements, if any".
That said, the incapacity of a disabled person could still be used as a 'reasonable and bona fide' defence as discussed in sub-sec (b) above - so the exclusion of the s.17 defence with respect to constructive discrimination on the ground of disability may be essentially illusory.


5. Sexual Solicitation and Reprisals by Person in Authority

Another specific form of discrimination, 'sexual solicitation by a person in authority', exists which is unique in the Code in that it is not tied to any primary specific ground of discrimination [as set out in Ch.3] nor area of protected (trade) activity [as set out in Ch.4] Rather applies to protect ALL persons generally. This is the right to be free from [Code s.7(3)(a)]:
... sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; ...
Recognizing the hierarchical context in which s.7(3) discrimination occurs, the Code has expressly added 'reprisal' forms of this discrimination. Thus this provision also includes the right to be free from 'reprisals' or threats of reprisals where such solicitations or advances are rejected [Code s.7(3)(b)].

Thus the 'sexual solicitation' freedom right comes in three forms: a direct substantive freedom, a rights against reprisal and lastly a separate right against threat of reprisal.


6. General Reprisal Protection

Similar to the additional 'reprisal' protection respecting sexual solicitations by a person in authority (s.5, above), the Code provides a general 'reprisal' protection which applies even outside of any hierarchical relationship between the applicant and the respondent [Code s.8]:
s.8
Every person has a right to claim and enforce his or her rights
under this Act, to institute and participate in proceedings under
this Act and to refuse to infringe a right of another person under
this Act, without reprisal or threat of reprisal for so doing.
This general reprisal protection comes in two forms. The first can be characterized as a right to be free from reprisal for commencing and continuing Code procedures to enforce rights ("procedural reprisal"), and the second a right to be free from reprisal for refusing to discriminate against another person (for lack of a better term I will called this "ethical-refusal reprisal").

This second form ("ethical-refusal reprisal") suggests that, like the sexual solicitation reprisal provisions (see s.5 above) that a hierarchical relationship be involved, for how else could the refuser be subject to reprisal.


7. 'Associational' Discrimination

Care must be taken not to confuse the Code's 'associational' (my term) discrimination form with the similar 'freedom of association' protection included in s.2(d) of the Charter, which protects persons in the formation of groups, typically for formal collective purposes (such as unions).

In contrast, this Code protection might equally be labelled 'proxy' or 'collateral' discrimination as it does not protect against direct discrimination against a person who manifests a protected ground, but rather against those who have a "relationship, association or dealings" with the person who manifests a protected ground [Code s.12]:
s.12
A right under Part I is infringed where the discrimination is
because of relationship, association or dealings with a person or
persons identified by a prohibited ground of discrimination.
Thus negative treatment of such an 'associate' is itself a form of discrimination.


8. Announced Intention to Discriminate

In a form of pre-emptive prohibition, it is also actionable discrimination under the Code to "publish or display before the public or cause the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation [Code s.13(1)]:
  • that indicates the intention of the person to infringe a right
    under Part I, or

  • that is intended by the person to incite the infringement of a
    right under Part I".

    Note:
    Part I of the Code covers all the "protected activities" discussed
    in Ch.2, and all of the "prohibited grounds" discussed in Ch.3.
This provision seems to be targetted at (mostly) past social practices whereby signs were posted (eg. "whites only") with a plainly discriminatory purpose. The operative phrasing "publish or display" and the emphasis on physical representations (rather than verbal) appears to support that interpretation.

That said, s.13(2) provides that this provision "shall not interfere with freedom of expression of opinion". This provides respondents with a defence to this particular "announced intention" form of discrimination and its effect appears to be to import into the Code the body of law established under s.2(b) of the Charter of Rights and Freedoms ("freedom of expression") without the need to formally raise the Charter in one's case, as would otherwise be required [see Ch.13, s.2: "Pre-Hearing
Procedures: Notic e of Constitutional Question"].

That said, it is difficult to imagine discrimination that would be intolerable if committed, and yet tolerable if only 'announced'.


9. Vicarious Liability Transferred to Employer

(a) Overview

'Vicarious discrimination' addresses the situation where the immediate discrimination is committed by someone "in the course of his or her employment" by any of several forms of collective entities (typically a corporation). The goal of the Code's vicarious liability provision is to transfer legal liability for the discrimination to the ultimate employer, and it's 'deeming' provision is apparently structured to exonerate the employee fully and locate all legal cnsequences on the employer [Code
s.46.3(1)]:
... any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers? organization.
(b) Interpretation Problems

The wording of this s.46.3(1) provision is legally problematic in that the key term "employment" is not used in a manner that is consistent with other key terms, namely "officers, officials, employees or agents". The employment relationship in law [see the Isthatlegal.ca Employment Law (Ontario) Legal Guide, Ch.1, s.1: Coverage of Employment Law: Basics] is a specific and discrete one, with its own specific legal criteria, and it does not necessarily in clude "officers, officials ... or agents" - all of whom are more likely have non-employment relationships with their 'principals' (such as independent contractors, fiduciaries, appointees at pleasure, etc).

That said, "officers, officials ... or agents" COULD have employment relationships with their principal employers, so under normal principals of statutory interpretation (of narrow interpretation of penal statutes) it may be that s.46.3(1) could be read to apply ONLY to employment relationships.

(c) Vicarious Liability Applies to Collective Employers, But Not to Natural Person Employers; Common Law Exception

Note further that the s.46.3(1) vicarious liability provision transfers liability to the employer "corporation, trade union, trade or occupational association, unincorporated association or employers' organization" [hereafter 'collective employers'], as the case may be. Notably absent from this list are 'natural person' employers (a 'natural person' is just what it sounds like, a 'real' person).
Interpretation Note:
Generally in an Ontario statute (which the HR Code is),
the term "person" includes a corporation [Legislation
Act, s.87]. Code s.46 extends that to also capture all of
the collective entities mentioned above to which
s.46.3(1) applies. However the obvious exclusion of
"person" from the s.46.3(1) 'list' plainly means to
exclude 'natural' or 'real' persons from its operation.
That said, it is a common law principle that principals (here 'employers') are civilly liable for the acts and omissions of their employees if they are committed in the normal and expected 'course of employment' [a notoriously difficult and ambiguous standard to apply in practice, and the same one set out in s.46.3(1)] - so assuming that 'natural person' employers are immune from vicarious liability is not safe to do. In such cases it seems likely that both the employee and the 'natural person'
employer cou ld be named as respondents to a Code application, not just the employer as the Code provision requires.

(d) Exceptions to s.46.3(1) Vicarious Liability Transfer

Activities expressly exempted from the operation of this vicarious liability transfer provision are:
  • harassment by landlords' agents [Code s.2(2)], including sexual
    harassment [Code s.7(1)] [addressed in Ch.2, s.3(b)];

  • harassment by employer's agents [Code s.5(2)], including sexual
    harassment [Code s.7(2)] [addressed in Ch.2, s.5(b)].
This just exempts these 'harassment' forms of discrimination from the 'deeming' provisions mentioned above. These harassment provisions still apply on their own terms to capture discriminatory acts and omissions by 'agents' of landlords and employers, though WITHOUT transferring that liability automatically to the employer on a finding that the activities were "done in the course of his or her employment". However, as is noted in (c) above, this criteria is so close to the common law standard for vicarious liability that the exclusion of these 'harassment' activities from coverage by the vicarious liability provision may make little practical difference.

(e) Vicarious Liability Transfer Does Not Extend to Offences

These vicarious liability transfer provisions do not apply to support Code prosecutions against collective employers [see Ch.17: "Remedies andf Offences"]. Chapter 17 discusses the remedial consequences that follow a finding of Code violation, and they may be broken down roughly into the civil-type consequences (eg. damages, restitution, injunctions) and penal or offence consequences which can be prosecuted under the Provincial Offences Act. This division between civil (also 'administrative') consequences is typical of modern adminstrative regimes.

The penal 'offence' provisions of the Code [s.46.1(1)] operate against the violation of primary infringement prohibition of the Code ["(n)o person shall infringe or do, directly or indirectly, anything that infringes a right under this Part": s.9], and against a small range of what can best be described as 'obstruction' offences for failing to comply with evidence demands of investigators and such like.

These offences are expressed excluded from the 'vicarious liability' transfer provisions, so that acts or omissions of "officers, officials, employees or agents" do NOT transfer to the employer to render them guilty of an offence.

Of course, once again this exception may have little practical impact as the 'in the course of his or her employment' criteria is very close, if not identical to, the same standard that would make an employer liable to prosecution under common law principle of vicarious liability.

(f) Tribunal Opinion re Vicarious Liability

At the request of the involved collective employer, the Tribunal shall, in it's decision: "make known whether or not, in its opinion, an act or thing done or omitted to be done by an officer, official, employee or agent was done or omitted to be done with or without the authority or acquiescence" [Code s.46.3(2)].

While normally such a fact-finding would shift Code civil liability to the collective employer under s.46.3(1), this is is not so when this request is made because "the opinion does not affect the application of sub-section (1)" (the primary vicarious liability transfer provision)] - rendering the opinion 'advisory' only.

That said, it is hard to see how such a finding could not be applied to invoke common law principles of vicarious liability, resulting not in a 'deemed' one-way transfer of liability frm employee to employer, but rather in joint liability of both the employee and employer.

It would be an absurd result that, merely by requesting a s.46.3(2) request opinion, the employer became immunized from vicarious liability. Therefore, and where the issue is otherwise relevant to the case before it, the Tribunal would make two identical fact-findings on the issue - one activating a vicarious liability transfer, and the second (advisory), with no effect. This seems an odd - but necessarily implied - result.


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