HRTO 1997

The complainant, a black francophone man of Haitian origin, alleged that he was repeatedly harassed by co-workers at Westinghouse because of his race, colour, and place of origin.

The co-workers used derogatory language and racial slurs.

The complainant reported the harassment to management, but the employer failed to conduct a proper investigation or take adequate steps to stop the harassment.

The Board of Inquiry found that the complainant was subjected to a course of vexatious comment and conduct based on prohibited grounds, and that the employer's response was grossly inadequate.

The Board ordered the employer to pay $7,500 in damages for mental anguish.

The complainant alleged that the City of Thunder Bay discriminated against her on the basis of sex when it denied her the position of Deputy Treasurer in 1988.

The complainant and a male candidate were the final two contenders for the position.

The Board of Inquiry found that the Treasurer chose the male candidate because of his superior municipal experience, rather than the complainant's superior academic credentials.

The Board concluded that the decision was not tainted by sex discrimination and dismissed the complaint.

The complainant, Lynne Barclay, alleged that the Royal Canadian Legion, Branch 12, and two of its officers discriminated against her because of her association with persons of native ancestry and persons of colour.

After confronting the officers about racist comments made in the Legion clubroom, the complainant's clubroom privileges were suspended and she was eventually expelled.

The Board of Inquiry found that the Legion provides a service to the public and that the complainant's rights were violated due to her association with protected groups.

The Board also found that the expulsion was a reprisal for filing a human rights complaint.

The Legion was ordered to reinstate the complainant and pay general damages, and the individual respondents were also ordered to pay damages.

The complainant alleged that the Toronto Transit Commission discriminated against him on the basis of sexual orientation by denying employment benefits to his same-sex partner.

After the respondent agreed to be bound by a related decision and extended benefits, the only remaining issue was the assessment of damages.

The Board of Inquiry found that the respondent did not act wilfully or recklessly, dismissing the claim for mental anguish.

However, the Board awarded $2,500 in general damages to compensate the complainant for the loss of his right to be free from discrimination.

The complainant in a human rights complaint alleging sexual harassment was served with criminal charges for attempting to obstruct justice and fraud, arising from alleged inconsistencies in her testimony.

The Commission and the complainant requested a stay of the human rights hearing to protect her against self-incrimination under the Charter.

The Board of Inquiry dismissed the request, finding that s. 11(c) of the Charter did not apply because the human rights hearing was not a proceeding against the complainant.

The Board held that the complainant was a compellable witness and that the criminal court would determine the admissibility of her testimony.

The Board directed the hearing to proceed with the respondents' case before considering whether further re-cross-examination of the complainant on damages was appropriate.

The respondents brought a preliminary motion seeking an order to compel the Ontario Human Rights Commission to permit access to the investigator who investigated the complaint.

Although the Commission subsequently agreed to allow access, the respondents requested a written ruling.

The Board of Inquiry held that the principles of disclosure from criminal and civil law apply to human rights proceedings.

The fruits of the investigation are not the property of the Commission, and there is no property in a witness.

Therefore, the respondents' counsel is legally entitled to interview the Commission's investigator.

The respondent municipality brought a motion to dismiss the human rights complaint after reaching a settlement with the Ontario Human Rights Commission.

The complainant was not a party to the settlement.

The municipality argued that the Commission's carriage of the complaint meant the settlement concluded the proceedings.

The Board of Inquiry dismissed the motion, finding that the Human Rights Code grants independent party status to the complainant, which includes the right to call evidence and make arguments.

Forcing a complainant to accept a settlement negotiated by the Commission would be inconsistent with the quasi-constitutional nature of human rights legislation.

Following the dismissal of a human rights complaint alleging sex discrimination in municipal hiring, the respondent municipality sought costs against the Ontario Human Rights Commission under s. 41(4) of the Human Rights Code.

The Board of Inquiry found that while the complaint was not trivial, frivolous, vexatious, or made in bad faith, the Commission's failure to properly investigate and assess the merits of the case caused undue hardship to the respondent by unnecessarily prolonging the hearing.

The Board ordered the Commission to pay the respondent's party and party costs for 20 hearing days, reduced by 30 percent because the respondent's own refusal to disclose documents contributed to the delay.

The complainant, an observant Jewish employee, alleged discrimination on the basis of creed because she was required to use vacation time, lieu time, or unpaid leave to observe Jewish holy days.

The employer rejected her proposal to make up the time by working overtime, arguing that not all employees had overtime available.

The Board of Inquiry found that while the employer's holiday schedule was secular and not directly discriminatory, it had an adverse effect on the complainant.

The Board held that the employer failed in its duty to accommodate, as it did not establish that the proposed accommodation would cause undue hardship.

However, no damages were awarded because the complainant suffered no monetary loss and bad faith was not established.

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.

The complainant, a lesbian in a conjugal relationship, applied to change her surname to a hyphenated version of her and her partner's surnames under the Change of Name Act.

The Office of the Registrar General refused to process the application because the Act's spousal election provision only applied to opposite-sex couples.

The Board of Inquiry found that this refusal constituted discrimination on the basis of sexual orientation in the provision of services, contrary to section 1 of the Human Rights Code.

The Board ordered the Registrar General to process the name change application and awarded the complainant $500 in general damages.

The complainant alleged that the Mayor and the City of London discriminated against him on the basis of sexual orientation by refusing to issue a civic proclamation for 'Pride Weekend'.

The Board of Inquiry found that the Mayor's refusal, and the City Council's subsequent failure to rectify the situation, constituted discrimination in the provision of services.

The Board rejected the respondents' arguments that proclamations are not 'services' under the Human Rights Code and that compelling a proclamation would violate their freedom of expression under the Charter.

The Board ordered the respondents to issue the proclamation and awarded the complainant $10,000 in damages.

The respondents brought a preliminary motion to dismiss or permanently stay a human rights complaint alleging racial discrimination in employment.

The respondents argued that the Commission's process was an abuse of process, breached procedural fairness, and that the significant delay between the events and the referral prejudiced their ability to defend the case.

The adjudicator applied the test for delay prejudice and found no evidence of prejudice of sufficient magnitude to impact the fairness of the hearing.

The adjudicator also found that the Commission reasonably exercised its discretion to accept the complaint despite some events occurring outside the six-month window, and that there was sufficient evidence to warrant referral to the Board of Inquiry.

The motion was dismissed.

Following the dismissal of a human rights complaint, the respondent Police Services Board sought costs against the Ontario Human Rights Commission under section 41.4 of the Human Rights Code.

The respondent alleged the Commission's investigation was conducted in bad faith and caused undue hardship.

The Board of Inquiry found that while the investigation was flawed and failed to corroborate significant allegations, it did not amount to bad faith.

The Board also found no undue hardship, noting the respondent's own inconsistent documentation contributed to the lengthy proceedings.

The application for costs was dismissed.

The respondents requested a stay of proceedings before the Board of Inquiry pending the outcome of a judicial review application concerning a previous interim decision that refused to maintain a verbatim audio record of the hearing.

The complainant and the Commission consented to the stay.

The adjudicator refused the stay, finding that the balance of convenience favoured continuing the proceeding to avoid further delay, and noting that the respondents could hire a court reporter at their own expense.

The adjudicator also granted in part a request to adjourn several hearing days due to confusion over a scheduling letter.

The respondent employer brought a motion to defer setting hearing dates until the Divisional Court and Court of Appeal decided pending appeals in other cases raising similar issues regarding the exclusion of women on maternity leave from short-term disability benefits.

The Board of Inquiry dismissed the motion, finding that its public interest mandate under the Human Rights Code required it to expeditiously decide the issues before it, and that deferring the hearing could result in years of delay.

The Commission and the complainant sought to amend a human rights complaint to add an allegation of reprisal under section 8 of the Human Rights Code.

The respondents objected, arguing that the four-year delay between the alleged acts of reprisal and the notice of intention to amend caused prejudice, as they had not preserved evidence or interviewed witnesses.

The Adjudicator granted the amendment, finding no evidentiary basis to support the claim of prejudice and noting that the respondents had been aware of the related harassment allegations from the outset.