Ontario Human Rights Tribunal Lawyer

N.K. v. J.B., (2020) HTRO 345 

N.K., the applicant, began employment as a Care Worker at Alan Stewart Homes Limited, the employer, in January 2016. The employer operates group homes for individuals who cannot live independently. N.K.’s direct supervisor was J.B., the Respondent. J.B. allegedly began making inappropriate and/or unwanted gestures and remarks shortly after N.K.’s job commenced, such rubbing dirt off her jeans and remarking on how nice she smelled. The inappropriate behaviour later progressed to more serious actions such as unsolicited phone calls and texts, and eventually led to physical harassment such as unwanted touching, caressing, and sexual interactions.

J.B. allegedly used his position as N.K.’s supervisor to coerce her into complying, often reminding her frequently of his authority over her work schedule and job security. N.K. cherished her work because of her prior hardships.

N.K. felt like she was under significant pressure and was in a vulnerable position, because she valued her work and had struggled with substance use issues, unstable work, and experienced sexual abuse in her youth. She felt like she could not afford to lose her job.

Being the primary caregiver for her child magnified the coercive power dynamic and exacerbated her need to continue working. Even after she moved to a new area to avoid J.B., N.K.’s suffering continued. In an effort to break off their controlling relationship, she finally invited J.B. to her house, but he became furious and attacked her sexually. Following this event, J.B. accused N.K. of assault, which resulted in N.K.’s detention. After being freed, N.K. went to the physician to receive an examination.

Following an investigation, the Employer terminated both N.K. and J.B. after discovering improper workplace behaviour that they were unaware of. N.K. was no longer able to work in her field because of the ongoing criminal proceedings. N.K. kept her case against J.B. even after initially adding the Employer as a respondent and then withdrawing her application against them. This shows how complex these kinds of cases can get, especially given the power dynamic in the workplace.

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32

The Supreme Court of Canada dealt with a major dispute in Canada between the rights to equality and religion. Trinity Western University (TWU), a private Christian university in British Columbia, was the party to the lawsuit. TWU wanted to establish a law school and sought accreditation for it. This certification was rejected by the Law Society of Upper Canada (LSUC), which oversees lawyer regulation in Ontario.

The Community Covenant Agreement at TWU, which requires that all employees and students follow particular religious doctrines and customs, such as refraining from “sexual intimacy that violates the sacredness of marriage between a man and a woman,” was the legal grounds for the rejection. The key legal issue involved striking an appropriate balance between the LSUC’s responsibility to promote equality and TWU’s right to religious freedom as set out by the Canadian Charter of Rights and Freedoms.

The matter was brought before the Human Rights Tribunal in British Columbia, with TWU claiming that the LSUC’s ruling violated their right to religious freedom. The university argued that adherence to the Community Covenant was voluntary and that it was an expression of its religious values.  However, the LSUC contended that TWU’s dedication to equality and non-discrimination would be compromised by the law school’s accreditation. Assuring equitable access to the legal profession and upholding public trust in the integrity of the profession are among the LSUC’s mandates. The LSUC felt that it would be against these ideals and detrimental to the public’s opinion of the legal profession to accredit a law school that discriminates on the grounds of sexual orientation.

Ultimately, the Tribunal ruled in favour of the LSUC. The Tribunal ruled that the accrediting decision was reasonable and compliant with the agency’s regulatory mission.

The matter was appealed and eventually heard by the Supreme Court of Canada. Although the Court recognized that TWU’s religious freedom was being breached, it found that the LSUC’s ruling balanced the rights to equality and religion in a fair manner. The Court emphasized that the rejection of accreditation was justified by the LSUC’s responsibility to protect equitable access and public confidence in the legal profession.  This case shows the interplay amongst Canada’s conflicting Charter rights.

This case demonstrates how the justice system must strike a balance between sometimes competing rights and how important it is to consider the general public’s interest in matters of professional regulation. The case is reflective of continuing dialogue in society about the boundaries of religious freedom and how they relate to other people’s rights to equality and to be free from discrimination.

A.C. v. 2332489 Ontario Inc., 2015 HRTO 833

The applicant A.C. alleged that the respondent 2332489 Ontario Inc., representing Bourbon St. Grill, had violated the OHRC by posting a job posting on online that wanted only a female server specifically. A.C. applied for the job of server, but did not receive any response. When he called the respondent, he was told that the job was exclusively for women. A.C. considered this to be an embarrassing and discriminatory experience.

The employment advertisement’s preference of sex was indeed found to be a breach of sections 5 and 23(1) of the Code by the Tribunal during the liability stage. However, A.C. was unable to show that it was more likely than not that the advertisement actually caused him real distress or any type of loss because no one who answered to the ad was hired at that point.

A.C. demanded for systemic changes to be made within the company to prevent discrimination, human rights training, $25,000 in damages, and policy reforms during the remedy hearing. A.C. asserted that the discriminatory advertisement affected him both personally and professionally.

However, the Tribunal noted that rather than focusing on the actual effect of viewing the discriminatory advertisement, his testimony concentrated more on getting turned down for the job. Ultimately, the Tribunal found that the employment ad alone did not cause A.C. any loss or emotional anguish, according to the Tribunal’s findings. Nor was it evident if he truly desired the position.

The Tribunal did not provide any financial compensation. The Tribunal acknowledged the respondents’ swift and proactive actions in responding to the incident: they posted the Code, set out a human rights policy, and provided staff training to promote values of equality, all of which helped to rectify the discriminatory hiring practice.