Robert W. Kerr

Following the dismissal of a human rights complaint for abuse of process without a hearing on the merits, the respondents brought a motion for costs under s. 41(4) of the Human Rights Code.

The Board of Inquiry held that it had jurisdiction to award costs despite the lack of a merits hearing, as a dismissal for abuse of process satisfies the statutory condition precedent.

The Board found no bad faith by the Commission but concluded that the abnormal nature of the preliminary proceedings caused undue financial hardship to both respondents.

However, noting that the separate representation of the respondents was wasteful given their common interests, the Board awarded only one set of costs, divided equally between them, totalling $8,000 each.

The respondents moved to dismiss or permanently stay a human rights complaint on the grounds of abuse of process, excessive delay, and lack of disclosure.

The Board of Inquiry found that while the investigating officer's bias, the five-year delay, and the Commission's restricted disclosure policy might not individually warrant dismissal, their combined effect seriously prejudiced the respondents' ability to prepare their case.

The complaint was dismissed.

The complainant alleged sex discrimination after she was passed over for a promotion to chief steward in favour of a male employee with less seniority.

Upon learning of the decision, the complainant resigned.

The Board of Inquiry found that sex was a factor in the decision to promote the male employee, violating the Human Rights Code.

However, the Board held that the complainant's precipitous resignation was not reasonable, and therefore she was not entitled to compensation for her total lost wages.

She was awarded $2,718.75 for the loss of the promotion opportunity, $5,000 in general damages, and interest.

The respondents brought a motion to adjourn the hearing before the Board of Inquiry pending their applications for judicial review.

The respondents argued that the Board lacked jurisdiction to decide the legal and Charter issues raised in their applications.

The Commission opposed the adjournment, arguing that the Board should decide the issues at first instance.

The Board found that while some issues were appropriate for court determination, the balance of convenience and the public policy of the Human Rights Code requiring expeditious proceedings weighed against granting an adjournment.

The motion for adjournment was denied.

Following a finding that the City of Stratford violated the Ontario Human Rights Code by mandatorily retiring the complainant police officer at age 60, the Board of Inquiry determined the appropriate remedy.

The Board declined to award damages for mental anguish, finding the complainant's depression was caused by retirement itself rather than its unlawful timing.

The Board rejected the respondents' arguments that damages should be reduced for failure to mitigate or for delay in the adjudication process.

The complainant was awarded $136,958 for past loss of employment income and $54,117 for loss of future pension income, along with prejudgment interest of $101,607.

The complainant, a police officer, alleged age discrimination after being mandatorily retired at age 60.

The respondents conceded a prima facie violation of the Ontario Human Rights Code but argued the policy was a bona fide occupational qualification (BFOQ).

Applying the Supreme Court's Etobicoke test, the Board of Inquiry found the respondents failed to establish both the subjective and objective elements of a BFOQ.

Subjectively, there was insufficient evidence that the policy was adopted with a sincerely held belief in its necessity for adequate job performance.

Objectively, while acknowledging age-related declines in aerobic capacity and increased cardiovascular risk, the Board concluded these factors did not render the age 60 limit reasonably necessary, as the essential duties of police work rarely require sustained aerobic limits and reasonable accommodation was possible.

The mandatory retirement policy was held to violate the Code.

The complainants, three individuals of Chinese origin, alleged that the respondent discriminated against them on the basis of race by denying them access to his "pick-your-own" vegetable farm.

The respondent claimed he excluded them due to the size of their group and their failure to follow instructions.

The Board of Inquiry found that the respondent's decision was influenced by the complainants' race, constituting a denial of services customarily available to the public contrary to section 2(1) of the Ontario Human Rights Code.

The Board awarded each complainant $200 in compensation for injured feelings and ordered the respondent to provide letters of apology and an undertaking to comply with the Code.

The complainant alleged she was discriminated against on the basis of sex when the respondent's manager made sexual advances toward her as a condition of employment as a waitress.

The Board of Inquiry found the complainant's evidence credible, supported by a prompt police complaint, and noted the respondent had falsified evidence.

The Board concluded the complainant was subjected to sexual harassment and denied employment on the basis of sex.

The respondent was ordered to pay $108 in damages and post a Human Rights Code placard.

The complainants, two waitresses at a fast-food establishment, alleged that their employer subjected them to sexual harassment and subsequently dismissed them for rejecting his sexual advances.

The respondent employer did not appear at the hearing.

The Board of Inquiry found that the respondent's unwelcome physical contact constituted a sexually discriminatory condition of employment contrary to section 4(1)(g) of the Ontario Human Rights Code.

Furthermore, the Board concluded that the complainants' dismissal was a result of their refusal to submit to the harassment, violating section 4(1)(b) of the Code.

The Board ordered the respondent to pay compensation for lost wages and for the embarrassment and humiliation suffered by the complainants.

The complainant, a black woman of Jamaican origin, was dismissed from her employment after an altercation where she slapped her supervisor.

She alleged her dismissal was discriminatory based on race, colour, and place of origin.

The Board of Inquiry found that while the complainant's conduct and other non-discriminatory factors played a role, the supervisor's decision to abruptly dismiss her was also influenced by a lack of regard for her as a person, which was partly based on her race, colour, and place of origin.

The complaint was upheld, and the respondent was ordered to pay compensation for lost wages and injured feelings.

The complainant, an East Indian employee, alleged he was dismissed and subjected to discriminatory conditions of employment on the basis of race.

The employer had dismissed him following an alleged physical assault on a co-worker, a decision previously upheld in part by an arbitration board.

The Board of Inquiry held it was not bound by the arbitration award because the arbitrator did not consider the human rights issues.

However, the Board found no evidence that the dismissal was racially motivated, concluding it was based on a developing company policy against workplace violence.

While the complainant had suffered racial abuse from co-workers, the Board found the employer was not legally responsible as management was unaware of the abuse until the final incident, at which point they appropriately disciplined the offending co-worker.

The complaint was dismissed.