HRTO 1995

The respondents brought a preliminary motion to stay the human rights complaint on the grounds of abuse of process, and sought disclosure of various Commission documents relevant to that motion.

The Board of Inquiry held that it had jurisdiction to stay or dismiss proceedings for abuse of process.

Applying the test of arguable relevance, the Board ordered the Commission to disclose specific documents, including instructions regarding the winding down of a Special Task Force, the investigation file of a related complaint, and certain employment details of Commission staff involved in the investigation.

The Board declined to order the issuance of summonses duces tecum to prove the authenticity of documents from the Commission's investigation file.

The respondents brought preliminary motions to dismiss a human rights complaint alleging race discrimination in employment, arguing that the Commission failed to meet statutory conditions precedent and that the delay and lack of particulars amounted to an abuse of process.

The Board of Inquiry held that it lacked general jurisdiction to review the Commission's pre-inquiry procedures, but could intervene if procedural failures amounted to an abuse of process.

The Board found that the combination of the complainant's delay, the Commission's delay, and the lack of particulars for certain allegations seriously prejudiced the respondents' ability to defend themselves.

Consequently, the vague allegations were stricken from the complaint.

The Board also granted the Commission's motion to amend the complaint and the respondents' motion to quash a premature summons for documents.

The complainant alleged that she was sexually harassed and solicited by her supervisor, who subsequently terminated her employment.

The Board of Inquiry found that the supervisor engaged in a course of vexatious sexual comments and conduct, including an unwanted kiss and a threat of reprisal.

This conduct constituted sexual harassment, sexual solicitation, and discrimination on the basis of sex by creating a poisoned work environment.

The corporate employer was held liable because the supervisor was part of the directing mind of the corporation.

The respondents were ordered to pay damages for lost wages, loss of dignity, and mental anguish.

The complainant alleged sex discrimination after being denied membership in the Italian Society of Port Arthur, an organization of men of Italian descent.

The Society argued it was exempt under section 18 of the Human Rights Code as a fraternal organization primarily engaged in serving the interests of its members.

The Board of Inquiry found that the Society met the three criteria of section 18: it is a fraternal organization, it is primarily engaged in serving the interests of its members, and its membership is restricted to persons similarly identified.

The complaint was dismissed.

In a human rights complaint alleging sex discrimination in hiring for financial management positions, the respondent City sought pre-hearing disclosure of certain Commission documents, while the Commission issued a summons for City documents relating to various job competitions.

The Board of Inquiry ordered the Commission to disclose its record of investigation but not internal procedural documents or non-existent lists.

The Board declined to quash the Commission's summons, finding that the requested documents regarding past and subsequent job competitions were relevant to the complainant's allegation of systemic discrimination, and that the Commission was entitled to use a summons to compel disclosure after the City had previously refused requests.

The complainant, a police constable, requested light duties during the latter stages of her pregnancy due to safety concerns for herself and her fetus.

The Police Services Board denied her request, relying on a policy that prohibited modified work programs, and forced her to take an unpaid leave of absence.

The Board of Inquiry found that the policy constituted both direct and adverse effect discrimination on the basis of sex.

The respondents failed to establish that the policy was a bona fide occupational qualification or that they had accommodated the complainant to the point of undue hardship.

The complainant was awarded lost wages and general damages for mental anguish.

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 complainant, a foreign-trained medical doctor, alleged discrimination on the basis of age, place of origin, and ethnic origin after being terminated from an unfunded residency program in ophthalmology at the University of Toronto.

The Board of Inquiry found that the admissions process for funded positions was competitive and non-discriminatory.

The complainant was offered an unfunded position as an act of compassion but ultimately failed his examinations on multiple occasions.

The Board concluded that the complainant was evaluated fairly and dismissed the complaint, finding no evidence of unlawful discrimination.

The complainant, a Spanish-speaking immigrant from Ecuador, alleged discrimination and harassment in employment on the basis of race, colour, ancestry, ethnic origin, and place of origin.

The Board of Inquiry found that the workplace was poisoned by discrimination against Spanish-speaking workers who did not speak English.

The owner and plant foreman regularly yelled at, insulted, and demeaned these workers, using their language and ethnicity as a basis for ridicule.

The complainant was fired following an altercation that was fueled by this racial and ethnic conflict.

The Board ordered the respondents to pay $6,000 for lost wages and $2,000 for mental anguish, and to implement a grievance procedure and human rights training.

The respondent, Sears Canada Inc., brought a motion for costs against the Ontario Human Rights Commission following a decision that found the respondent had accommodated the complainant's disability after initial discrimination.

The respondent argued the complaint was trivial, frivolous, vexatious, or made in bad faith, and caused undue hardship.

The Board of Inquiry dismissed the motion, finding that the Commission had a factual basis for proceeding and did not act in bad faith or cause undue hardship.

Beryl Wall, a computer operator at the University of Waterloo, alleged that her supervisor, Gary Embro, sexually harassed her through unwanted touching and kissing.

The University investigated and implemented an agreement separating the two, but Wall ultimately resigned, claiming the response was inadequate.

The Board of Inquiry found that Embro's conduct constituted sexual harassment.

Applying the organic theory of corporate responsibility, the Board held the University jointly and severally liable because Embro, as a supervisor, formed part of the University's directing mind.

However, the Board found the University's response to the complaint was reasonable and therefore dismissed Wall's claim for lost wages.

Wall was awarded $3,500 for mental anguish and infringement of rights, plus interest.

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 complainant alleged that the Mayor of Hamilton discriminated against him based on sexual orientation by refusing to issue a proclamation for Gay and Lesbian Pride Week.

The Board of Inquiry found that a mayoral proclamation is a 'service' under the Human Rights Code, as it is generally perceived as a benefit to the groups seeking it.

The Board held that the Mayor's refusal, though purportedly motivated by a desire to protect the gay and lesbian community from homophobic backlash, was paternalistic and constituted discrimination.

The Board further found that the City of Hamilton was neither directly nor vicariously liable for the Mayor's actions, as issuing proclamations falls outside his statutory duties as Chief Executive Officer.

The Mayor was ordered to pay $5,000 in compensation for injury to dignity and to issue the proclamation if requested in 1995.

The complainant brought a preliminary motion requesting that the Board of Inquiry order the Ontario Human Rights Commission to pay her legal costs for presenting her case.

The Commission had reached a settlement with the respondents without the complainant's consent and withdrew from the hearing.

The complainant argued this was an abuse of process.

The Board of Inquiry dismissed the motion, finding it lacked jurisdiction under the Human Rights Code to award costs against the Commission in these circumstances, and that no abuse of process had been established.

The complainant, a 17-year-old female employee, alleged she was sexually harassed by a co-worker and her supervisor during her brief employment at a building supplies company.

The Board of Inquiry found that the supervisor directly participated in and condoned a series of sexually explicit and derogatory comments, creating a poisoned work environment.

Applying the Robichaud principle, the Board held the corporate respondent liable for the supervisor's conduct.

The complainant was awarded $17,010 in total damages, including compensation for lost wages, loss of the right to equality in employment, mental anguish, and pre-judgment interest.

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 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 respondent moved to dismiss a complaint alleging breach of a settlement agreement under section 43 of the Human Rights Code.

The respondent argued the Board of Inquiry lacked jurisdiction because the settlement had never been approved by the Commission, a necessary precondition under section 43.

The adjudicator found that 'approval by the Commission' requires approval by the Commissioners themselves, not merely administrative approval by staff.

Because the settlement was only administratively closed and never approved by the Commissioners, it was not enforceable under section 43.

The motion to dismiss the complaint was granted.

The Ontario Human Rights Commission brought a preliminary motion to add the Ministry of Education and Training and Mr. André Lalonde as respondents to two human rights complaints regarding job competitions.

The complaints were originally filed against the Metropolitan Toronto School Board and the CEFCUT.

The Board of Inquiry dismissed the motion, finding it premature to add the Ministry or Mr. Lalonde in his personal capacity given the lack of evidence that Mr. Lalonde was acting as an employee of the Ministry rather than the school boards during his secondment, and considering the significant delay since the complaints were filed.

The complainant brought a motion challenging the jurisdiction of a newly assigned adjudicator to hear the human rights complaint, arguing that the original adjudicator was seized of the matter.

The Board of Inquiry held that section 35(8) of the Human Rights Code grants the Chair broad authority to reassign panels for any reason, including scheduling and workload demands, and that the parties were not legally entitled to prior notice of the reassignment.

The motion was dismissed and the hearing was ordered to proceed.