Constance Backhouse

The Human Rights Tribunal of Ontario convened a hearing to finalize the quantum of damages owed to the complainant following a 30-year legal process involving findings of racial discrimination and a poisoned work environment at the respondent's plant.

The parties had previously agreed to a quantum of $352,722.82, but the self-represented complainant subsequently refused to accept the funds, seeking instead to have the appellate court reconsider the entire case de novo.

The Tribunal held that it had no jurisdiction to set aside an appellate ruling and ordered the respondent to pay the agreed-upon amount, concluding that this payment fully satisfied the respondent's remedial obligations and terminated the proceedings.

Following a finding of liability against the corporate respondent for racial harassment and discriminatory termination, the respondents applied for costs against the Ontario Human Rights Commission under s. 41(4) of the Human Rights Code.

The respondents argued that costs were warranted because portions of the complaint (discriminatory job training and assignment) and the complaints against the individual respondents were dismissed due to the Commission's delay.

The Board of Inquiry dismissed the application, holding that s. 41(4) requires the entire complaint to be dismissed before costs can be awarded.

Furthermore, the Board found that even if it had discretion, it would not award costs because the delay caused undue hardship to the complainant as well, and there was no evidence that the complaints against the individual respondents were trivial, frivolous, vexatious, or made in bad faith.

Following a finding that the complainant was subjected to racial harassment and discriminatory discharge, the Board of Inquiry determined the appropriate remedies.

The Board ordered the respondent employer to reinstate the complainant, finding that reinstatement was the only remedy that would properly serve as restitution.

The employer was also ordered to provide retraining and employee assistance counselling.

The Board awarded the complainant compensation for lost wages and benefits up to the date he found comparable employment, less the time for justified disciplinary suspensions.

Additionally, the Board awarded $20,000 in general damages for the infringement of the complainant's rights and $10,000 for mental anguish caused by the employer's reckless contravention of the Human Rights Code.

The Board declined to award legal costs, citing a lack of statutory jurisdiction, but did award pre-judgment interest on the damages.

The complainant, Martin Entrop, and the Ontario Human Rights Commission challenged Imperial Oil's Alcohol and Drug Policy, alleging it discriminated on the basis of handicap.

The Board of Inquiry found that drug abuse and dependence constitute a handicap under the Human Rights Code.

The Board held that the policy's requirements for mandatory disclosure of past substance abuse, reassignment, and onerous reinstatement conditions were overly broad and unlawful.

Furthermore, the Board ruled that pre-employment and random drug testing, as well as random alcohol testing, were unlawful because the employer failed to prove that positive tests correlate with actual impairment on the job, thus failing to establish a bona fide occupational requirement under section 17 of the Code.

The complainant, an East Indian man from Guyana, alleged that he was subjected to a racially poisoned work environment at the Ford Motor Company plant in Windsor and was ultimately discharged discriminatorily.

The Board of Inquiry found that the workplace was saturated with racist graffiti and slurs, and that management failed to take adequate steps to address the harassment, rendering the employer liable.

The Board further held that the complainant's disciplinary record, which included insubordination and altercations, was provoked by the discriminatory environment.

The employer's decision to discharge the complainant without considering this context was found to be unlawful.

Jurisdiction was retained to determine the appropriate remedy.

The respondents brought a motion to adjourn the hearing of a human rights complaint after failing to provide the unrepresented complainant with disclosure of witness statements.

The complainant sought time to retain independent legal counsel.

Despite concerns over the protracted delays in the proceedings, the adjudicator granted the adjournment to ensure the complainant's right to full participation and cross-examination, warning that no further adjournments would be permitted for this purpose.

The complainant, who is legally blind, was denied financial assistance for a visual aid device by the Ministry of Health because he was over 30 years old.

After the Court of Appeal found this age restriction discriminatory, the matter of damages was referred back to the Board of Inquiry.

The Board awarded $7,000 in general damages for the loss of the human right, which included $2,000 specifically for the ten-year delay in resolving the complaint.

The Board also awarded $3,000 for mental anguish, finding the Ministry's institutionalized policy of age discrimination to be wilful.

Interest was ordered on $8,000 of the award.

The complainant, a senior operator in a safety-sensitive position, disclosed a past alcohol problem pursuant to the employer's new Alcohol and Drug Policy.

Despite having been abstinent for over seven years, he was reassigned to a lower position and later reinstated subject to rigorous, unannounced testing and controls.

The Board of Inquiry found that past alcoholism constitutes a handicap under the Human Rights Code.

The Board held that the employer's mandatory self-disclosure, automatic reassignment, and excessive reinstatement controls amounted to direct discrimination.

While freedom from alcohol impairment is a bona fide occupational requirement for safety-sensitive jobs, the employer failed to prove that the complainant was incapable of performing his duties or that the intrusive measures were reasonably necessary.

The employer also failed to meet its duty to accommodate, as less drastic means of assessment, such as supervisory monitoring, were available.

The complainant, who had previously been reassigned due to past alcohol dependency, sought to expand the scope of his human rights complaint to challenge the respondent's random drug testing policy.

The complainant argued he was at risk of discipline because he took a prescription medication containing codeine for a knee injury.

The Board of Inquiry granted the motion to expand the hearing's scope, finding the complainant had standing to challenge the policy.

The Board also allowed an amendment to the complaint to allege that the distribution of the policy violated s. 13 of the Human Rights Code.

The corporate and individual respondents brought a preliminary motion to dismiss the complainant's human rights complaint on the basis of issue estoppel and res judicata.

The respondents argued that a prior labour arbitration decision, which upheld the complainant's termination under a collective agreement, precluded the human rights proceedings.

The Board of Inquiry dismissed the motion, finding that there was no identity of issues or parties between the labour arbitration and the human rights complaint.

The Board noted that the arbitration award did not address racial discrimination or the Human Rights Code, and that the Commission was not a party to the arbitration.

The Ontario Human Rights Commission sought production of documents relating to the respondent's Alcohol and Drug Policy as a whole, while the respondent argued for a phased approach focusing first on the individual complainant.

The Board of Inquiry adopted a phased approach, ordering production of documents relating only to the individual complainant at this stage.

The Canadian Civil Liberties Association sought intervener status as amicus curiae.

The Board granted the CCLA intervener status to make submissions at the conclusion of the case, noting the public interest nature of human rights inquiries.

The complainant, a senior operator in a safety-sensitive position, alleged discrimination based on handicap under the respondent's Alcohol and Drug Policy after disclosing a past alcohol problem.

The respondent sought a preliminary ruling to limit the Board of Inquiry's jurisdiction to the policy's specific effects on the complainant, rather than the policy as a whole.

The Board declined to make a definitive ruling on the scope of the proceeding at the outset, finding it premature and stating that the relevance of evidence regarding the broader policy would be determined as the hearing unfolded.

The respondents brought a motion to dismiss or stay a human rights complaint, arguing that the Ontario Human Rights Commission failed to make sufficient efforts to settle the complaint, and that delay, inadequate disclosure, and biased investigation amounted to an abuse of process.

The Board of Inquiry found that the Commission did make efforts to settle and held that, in any event, failure to conciliate is not a condition precedent to the Board's jurisdiction.

The Board also found that while there was considerable delay, it did not render a fair hearing impossible.

The motion was dismissed.

The respondents brought a motion to stay the human rights proceedings on the basis of a reasonable apprehension of bias, arguing that the adjudicator was a complainant in another sex discrimination case and had expertise in feminist legal scholarship.

The Board of Inquiry dismissed the motion, finding that involvement as a party in an unrelated human rights complaint does not create an apprehension of bias.

Furthermore, the Board held that an adjudicator's background in feminist scholarship and involvement in women's organizations does not constitute bias, as requiring adjudicators to have no prior involvement in human rights issues would hamper fair and knowledgeable adjudication.

The respondents sought to stay a human rights board of inquiry proceeding based on an order issued by the Quebec Superior Court under the Companies' Creditors Arrangement Act (CCAA).

The Board of Inquiry held that the CCAA does not bind the Crown, and that the Ontario Human Rights Commission is a Crown agency immune from the stay order.

Furthermore, the Board found that human rights proceedings are quasi-constitutional in nature and do not constitute 'proceedings' within the meaning of section 11 of the CCAA.

The motion to stay the proceedings was dismissed.

The respondents brought preliminary motions to dismiss a human rights complaint alleging sex discrimination and unequal pay.

They argued the matter should be heard under other statutes, that the Commission's overlapping functions created an apprehension of bias, and that the delay in proceedings violated the Charter and constituted an abuse of process.

The Board of Inquiry dismissed all preliminary motions, finding that concurrent jurisdiction does not oust the Code, the Commission's functions are statutorily authorized, and the delay did not render a fair hearing impossible.

A request for further particulars was also denied.

The Ontario Human Rights Commission brought a motion to add Great Atlantic and Pacific Company of Canada Limited (A & P) as a respondent to a human rights complaint originally filed against Miracle Food Mart.

The complainant alleged sex discrimination regarding pay and advancement opportunities.

After the complaint was filed, A & P purchased selected assets of Miracle Food Mart.

The Board of Inquiry granted the motion, finding that the successor company inherited the business operations and was the only entity capable of providing a remedy, particularly since the complaint alleged systemic discrimination.

The complainant, a waitress at a strip bar, was fired by the manager when she was four months pregnant.

The manager admitted to firing her because of her pregnancy, citing concerns about fights breaking out and potential lawsuits if she were injured.

The Board of Inquiry found that the complainant was fired because of her pregnancy, violating the Human Rights Code.

The respondents failed to establish that not being pregnant was a bona fide occupational qualification for the job.

The manager and the corporate respondent were found jointly and severally liable for the discrimination, and were ordered to pay special and general damages.

The 73-year-old complainant, who has a severe visual impairment, applied for financial assistance under the Ministry of Health's Assistive Devices Program to purchase a closed circuit television magnifier.

He was denied funding because the program restricted visual aids to persons 22 years of age and under.

The Board of Inquiry found that while the age restriction violated the right to equal treatment under section 1 of the Human Rights Code, the program was protected under section 13 as a special program designed to assist disadvantaged persons.

The complaint was dismissed.