HRTO 1993

The complainant, who was absent from work for a year and a half due to a workplace injury, lost six months of seniority pursuant to a provision in the collective agreement that reduced seniority for absences exceeding one year.

She subsequently lost a job competition because of this reduced seniority.

The Board of Inquiry found that while the provision was neutral on its face, it had a discriminatory impact on the complainant because of her handicap.

The Board held that both the employer and the union breached the Human Rights Code by failing to accommodate her to the point of undue hardship.

The respondents brought preliminary motions to dismiss human rights complaints alleging discrimination in employment.

Mr. Benmergui argued the Commission breached procedural fairness by failing to notify him of the complainants' requests for reconsideration of the decision not to appoint a board of inquiry.

The Board of Inquiry agreed, finding the breach could not be cured by a full hearing and permanently stayed the complaints against him as an abuse of process.

The respondent Hospital argued the complaints should be dismissed due to the Commission's failure to give reasons for its reconsideration decision, unreasonable delay, and apprehension of bias.

The Board dismissed the Hospital's motion, finding the failure to give reasons could be cured by further disclosure, there was no evidence of actual prejudice from the delay, and no evidence of bias.

The complainant, who had AIDS, alleged that the respondents discriminated against him by refusing him service and providing him with unequal treatment (such as serving him with plastic utensils instead of regular china) at their restaurant.

The Board of Inquiry found that the complainant and his wife were credible witnesses and that the respondents had discriminated against the complainant because of his handicap.

The corporate respondent was ordered to pay $4,500 in general damages, with the individual respondent jointly and severally liable for $1,500 of that amount.

The complainant, a registered nurse, was denied family benefits for her same-sex conjugal partner under her employer's group benefit plan.

The Board of Inquiry found that the denial of benefits to same-sex couples constituted discrimination on the basis of sexual orientation, contrary to the Human Rights Code.

The Board held that the exemption in section 25(2) of the Code for benefit plans discriminating on the basis of marital status did not apply to discrimination based on sexual orientation.

The respondent was ordered to pay $4,000 in compensation for loss of dignity and to amend its benefit plans to provide coverage for same-sex couples.

The complainant, a black nude dancer, was hired for a one-week engagement at the respondent's club along with her white partner.

The respondent owner offered the white partner a return engagement but explicitly refused to re-hire the complainant because she was black and he did not want black clientele.

The Board of Inquiry found that the respondents discriminated against the complainant in employment on the basis of race and colour.

The respondents were ordered to pay $1,420 in special damages for lost wages and $2,000 in general damages for mental anguish.

The Ontario Human Rights Commission brought a motion to amend Anthony Wong's human rights complaint to add 'age' as an additional ground of discrimination.

The original complaint alleged discrimination based on race and ethnic origin regarding his placement on a list of surplus teachers.

During the hearing, evidence emerged suggesting age might have been a factor.

The Board of Inquiry allowed the amendment, finding that the respondents would not be prejudiced as they had ample time to prepare for cross-examination and to call further evidence.

The complainant, an East Indian man with extensive education and experience, alleged that the Ministry of Community and Social Services discriminated against him on the basis of race and ethnic origin by repeatedly failing to promote him over a 17-year period.

He applied for 30 promotional positions without success.

The Board of Inquiry reviewed the evidence, including expert testimony on systemic racism and employment equity, and the specific job competitions.

The Board found that the complainant was not qualified for the senior management Programme Supervisor positions.

For the Vocational Rehabilitation Supervisor positions, the Board concluded that the successful candidates were either more qualified or selected for legitimate, non-discriminatory reasons.

The complaint was dismissed.

Three employees filed human rights complaints alleging sexual harassment by the new general manager of a hotel.

The Board of Inquiry banned the publication of the complainants' names to protect their privacy.

The Board dismissed the complaints of two employees, finding that while the manager's sexual stories and comments were inappropriate, they did not meet the threshold for sexual harassment.

However, the Board upheld the complaint of the third employee, finding that the manager's persistent and untrue statements about her sexual activities created a poisoned work environment.

The corporate respondent was held vicariously liable as the manager was a directing mind.

The successful complainant was awarded $4,500 for lost wages and $2,000 in general damages.

The respondent employer brought a preliminary motion requesting that the adjudicator disqualify himself from hearing a human rights complaint due to a reasonable apprehension of bias.

The respondent argued that the adjudicator's full-time employment as a union representative created a perception of bias in favour of employees.

The Board of Inquiry dismissed the motion, finding that a reasonable observer would not perceive bias simply because the adjudicator works as an advocate for employees in private negotiations, as he had no direct connection to the parties and had expressed no public views on the specific issues to be adjudicated.

In a human rights complaint alleging that the display and sale of pornographic magazines in convenience stores discriminates against women, 31 organizations applied for interested party status.

The Board of Inquiry held that the Human Rights Code does not permit adding the applicants as full parties.

However, the Board granted the applicants intervener status as amicus curiae, allowing them to make written submissions at the conclusion of the case, with the possibility of oral argument or calling evidence if deemed helpful and non-prejudicial.

The complainant alleged that the respondent, her employer, sexually harassed her through inappropriate comments, physical proximity, and a late-night phone call asking what she was wearing.

The respondent denied the allegations and moved to dismiss the complaint due to a six-year delay by the Commission.

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

On the merits, the Board found the complainant's testimony credible and consistent with the respondent's acknowledged behaviour.

The Board concluded the respondent sexually harassed the complainant, violating the Human Rights Code, and awarded $1,705 in special damages and $3,000 in general damages for mental anguish.

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.