HRTO 1992

The complainant, a Canadian citizen of East Indian and Trinidadian origin, alleged that the Sudbury Regional Police Force discriminated against him on the basis of colour, race, ancestry, and age when he was unsuccessful in his application to become a police constable.

The Board of Inquiry found no direct discrimination, noting that the successful candidates were more qualified and that the complainant had a prior conviction and gave inconsistent answers during his interview.

The Board also found no systemic discrimination, concluding that the cognitive ability test used by the police force was a valid predictor of job performance and was not culturally biased against the complainant.

The respondents in a human rights complaint alleging discrimination based on sexual orientation brought a preliminary motion seeking access to the notes made by the Commission's investigating officer.

The respondents argued that the Supreme Court of Canada's decision in R. v. Stinchcombe required full disclosure.

The Board of Inquiry dismissed the motion, holding that Stinchcombe does not apply directly to human rights proceedings, which are civil rather than criminal in nature.

The Board emphasized the need to protect the confidentiality of witnesses who participate in human rights investigations to prevent potential reprisal and ensure the efficacy of the investigative process.

The respondents brought a preliminary motion to stay a human rights complaint due to a five-year delay by the Ontario Human Rights Commission in bringing the matter to a hearing.

The Board of Inquiry held that sections 7 and 11(b) of the Charter do not apply to human rights proceedings, which are civil rather than criminal in nature.

The Board also declined to stay the proceedings under section 23(1) of the Statutory Powers Procedure Act, finding no evidence that the delay made it impossible to ascertain the facts or fulfill its statutory duty.

The motion was dismissed.

The respondents in a human rights complaint alleging sexual harassment brought a motion to change the venue of the hearing from Guelph to Kitchener, to hold the hearing in camera, and for a publication ban.

The respondent child protection agency argued that negative publicity would harm its ability to serve the community and raise funds.

The Board of Inquiry dismissed the requests for a change of venue and an in camera hearing, finding no sufficient basis to depart from the principle of open hearings and the educational purposes of the Human Rights Code.

However, the Board granted a publication ban preventing the news media from reporting on the proceedings until the release of the Board's final decision.

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, who is blind and uses a guide dog, alleged that the respondents discriminated against her by refusing to show or rent her an apartment.

The respondents attempted to discourage her interest and subsequently refused to allow her to view the apartment.

The Board of Inquiry found that both respondents infringed the complainant's right to equal treatment with respect to the occupancy of accommodation because of her handicap.

The Board awarded the complainant $660 for the rent differential and $2,500 for mental anguish.

The complainant was dismissed from her employment as a legal secretary after requesting two to three weeks of medical leave for a bilateral-reduction mammoplasty to treat virginal breast hypertrophism.

The employer's unwritten policy allowed only five days of sick leave per year and resulted in her termination.

The Board of Inquiry found that her condition constituted a physical disability under the Human Rights Code.

While there was no direct discrimination, the sick leave policy constituted constructive discrimination, and the employer failed to demonstrate that accommodating her absence would cause undue hardship.

The employer was ordered to pay lost wages, general damages, and interest, and to implement a Code-compliant sick leave policy.

The respondents brought preliminary motions to dismiss a human rights complaint alleging discrimination on the basis of handicap.

The respondents argued the complaint should be stayed due to a three-year delay by the Commission and because the matter was res judicata following prior proceedings under the Police Act.

The Board of Inquiry dismissed the motions, finding that the delay did not prejudice the respondents' right to a fair hearing and that the human rights complaint involved a different legal question regarding the duty to accommodate, which was not considered in the Police Act proceedings.

In an interim decision following a finding of age discrimination, the respondents requested that the complainant undergo a medical examination to determine if he would have been on disability leave during the compensation period.

The Commission opposed the request, arguing it was an attempt to relitigate the issue of mitigation.

The Board of Inquiry granted the respondents' request, holding that the medical evidence was relevant to determining the complainant's actual wage loss and did not reopen the already-decided issue of mitigation.

The individual respondent brought a preliminary motion requesting the Board of Inquiry step aside because the substance of settlement negotiations had been disclosed to the Board during related judicial review proceedings.

The Commission argued the disclosure was necessary to respond to the respondent's allegations of delay and failure to pursue settlement.

The Board granted the motion and stepped aside, finding that the disclosure of settlement details was unilateral and unnecessary, and that preserving the public policy of encouraging settlements required adjudicators to remain unaware of such negotiations.

The complainant, a 17-year-old, answered an advertisement for a nude lingerie model placed by the respondent photographer.

During the photo session, the respondent touched the complainant's breasts and vagina.

The complainant filed a human rights complaint alleging sexual harassment.

The respondent raised preliminary objections regarding delay, abuse of process, and Charter violations, which the Board dismissed, noting that human rights proceedings are remedial and not subject to sections 7 and 11 of the Charter.

On the merits, the Board found that the respondent was in a position to confer a benefit and made sexual advances that he ought reasonably to have known were unwelcome, given the complainant's age, the power dynamic, and previous similar complaints against him.

The Board ordered the respondent to pay $1,500 in general damages and directed that all photographs and negatives be destroyed.

The complainant alleged that she was sexually harassed by her employer, the owner of a photography business, who repeatedly asked her to pose nude, made sexual advances, and engaged in unnecessary touching.

The respondent brought a preliminary motion to dismiss the complaint due to delay, arguing violations of the Charter and abuse of process.

The Board of Inquiry dismissed the preliminary motion, finding no substantial prejudice.

On the merits, the Board found the complainant credible and held that the respondent's conduct constituted sexual harassment and sexual solicitation under the Human Rights Code.

The Board awarded the complainant $2,677.50 for lost wages and $2,000 in general damages, and ordered the respondent to comply with monitoring and posting requirements.

The complainant, who developed a physical disability and a marked limp after a workplace accident, alleged harassment and discrimination by his employer, Domglas Inc., and several individuals.

The Board of Inquiry found that the complainant's supervisor and a co-worker engaged in a course of vexatious conduct by mocking his limp and making sarcastic comments about his disability pension.

The plant manager and personnel manager were found personally liable for failing to investigate or stop the harassment, thereby permitting a poisoned work environment.

The corporate employer was held liable under the organic theory of corporate liability.

Furthermore, the Board found that the employer discriminated against the complainant by denying him a standard salary increase due to disability-related absences, and by denying him a promotion without properly assessing his capabilities or considering reasonable accommodation.

The respondents were ordered to pay compensation for lost wages and general damages for mental anguish.

The complainant, a wheelchair user, alleged that her condominium corporation discriminated against her by refusing her access to the swimming pool unless she showered in the pool area.

The Board of Inquiry found that the shower area was not accessible to the complainant without a special bench, which was not provided until later.

The Board held that the condominium corporation failed to reasonably accommodate the complainant, as allowing her to shower in her own unit would not have caused undue hardship.

However, the Board declined to award damages due to the complainant's abusive behaviour and the lack of actual loss, ordering only that wheelchair users be permitted to shower in their units.

The complainant, a bartender, alleged that she was sexually harassed by the owner of the restaurant where she worked.

The Board of Inquiry found that the respondent engaged in frequent, unwelcome physical and verbal sexual advances, violating the Human Rights Code.

The Board ordered a publication ban on the complainant's name and awarded $1,000 in general damages for humiliation, along with $346.90 for lost wages, noting that the complainant failed to fully mitigate her damages by restricting her job search.

The respondent insurance company brought a motion to restrict the evidence in a human rights complaint to the specific illness of the complainant (AIDS), arguing that evidence regarding the impact of an exclusion clause on persons with other disabilities was irrelevant and hypothetical.

The Board of Inquiry dismissed the motion, ruling that because the exclusion clause itself was alleged to be discriminatory, evidence of its broader impact was necessary and admissible to determine its validity.

The complainants, Kelly Parks and Holly MacIntyre, alleged that they were discriminated against on the basis of marital status when their employment at Christian Horizons group homes was terminated because they were living in common-law relationships.

The Board of Inquiry found that Christian Horizons directly discriminated against the complainants.

While Christian Horizons qualified as a religious organization serving the interests of persons identified by creed, it failed to establish that its lifestyle requirement was a bona fide occupational qualification under s. 23(1)(a) of the Human Rights Code.

The requirement was not applied consistently, and the hiring procedures did not clearly indicate that only those whose lifestyles were compatible with Evangelical Christian doctrinal principles were qualified for employment.

The complaints against the individual respondents were dismissed.

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.

The complainant, who was diagnosed as HIV-positive shortly after commencing employment, was denied long-term disability benefits due to a pre-existing condition exclusion clause in the employer's group insurance policy.

The clause excluded coverage for disabilities arising from conditions for which the employee received medical care during the 90-day probationary period.

The Board of Inquiry found that while the clause was prima facie discriminatory, it was saved by section 25(3)(a) of the Human Rights Code as a reasonable and bona fide distinction based on a pre-existing handicap that substantially increases risk.

The Board applied the Supreme Court's test from Zurich Insurance, concluding the clause was a sound and accepted insurance practice for small groups to prevent adverse selection, and that no practical alternative existed.

The complainant, a person living with AIDS, alleged that the respondent dentist discriminated against him by refusing or delaying dental treatment because of his handicap.

The Board of Inquiry found that AIDS is a handicap under the Human Rights Code.

However, the Board concluded that the respondent did not refuse treatment but merely postponed it to the end of the day.

The Board held that the postponement was justified under section 16 of the Code because proper dental procedure for an AIDS patient required consultation with a physician and a deeper cleaning performed by the dentist rather than a hygienist, which could not be accommodated during the originally scheduled appointment without undue hardship.