Discrimination in Ontario in the Employment Termination Context: Considerations and Risks

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Even an ordinary termination of employment in Ontario carries risks, which many employers already find familiar: damages for reasonable notice based on age, nature of employment, duration of employment, and availability of similar employment, also known as the Bardal factors. However, employers may be less aware that if an employee is terminated and alleges and proves discrimination, the Ontario Human Rights Tribunal (OHRT) and Ontario courts may award remedies including human rights damages, which follow a different set of principles.

Discrimination Grounds

In Ontario, the discrimination grounds in employment consist of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. The Ontario Human Rights Commission states that the right to equal treatment with respect to employment covers each stage of the employment relationship from application and hiring, to promotions and discipline and, crucially, termination.

Discrimination in Employment

Discrimination is generally defined as unequal treatment between employees based on a ground of discrimination rather than on the actual abilities or circumstances of each employee. If an employer’s policy, practice, rule or other workplace circumstance adversely affects an employee due an employee’ protected ground, such adverse effect will be considered discrimination in Ontario.

If an employee is adversely impacted, the employer has a duty to accommodate the employee to the point of undue hardship. This will depend on the circumstances, but may include rescinding the offending policy/rule, or providing accommodations to the employee to allow them to work within the rule. Most frequently this is looked at from the disability accommodation perspective (changes to schedules, workspace, duties etc. to allow an individual with a disability to work on an equal footing), but it can also apply to protected grounds such as family status.

Discrimination Claims in Ontario

To establish discrimination, employees must prove, on a balance of probabilities, that there is a prima facie case of discrimination, essentially: the employee has a characteristic that is covered by a protected ground; and the employee experienced adverse impact or treatment due the characteristic. Intent to discriminate does not need to be established.

The employer then, may present evidence to disprove the prima facie case, or justify the policy or rule under an exemption under legislation or the common law. Exemptions are generally not broad.

If the prima facie case is established, the employer then may seek to show that the policy or rule is a bona fide occupational requirement or BFOR. If the employer can prove this defence, then the employer will not be found liable for discrimination. However, each such case will be context and fact specific. Steps the employer took (such as accommodations) will play a significant role in establishing the BFOR defence.

What can the HRTO Award?

In the termination context, and employee alleging and proving discrimination may be entitled to higher damage awards than at general common law. The types of damages that can be awarded by the HRTO (and the Canadian Human Rights Tribunal) are general damages and special damages. In addition, the HRTO has the ability to award certain special remedies such as reinstatement.

General Damages

General damages are awarded to compensate an employee for injury to their dignity, feeling, and self-respect due to discrimination. There is generally no set limit to general damages which the HRTO may award, but only on rare occasions has the HRTO awarded general damages exceeding $25,000.00 as of 2023. The amount will generally depend on the egregiousness of the conduct of the employer and the amount of hurt suffered by the employee as a result of the conduct.

Special Remedies

Special damages can sometimes significantly exceed general damages because they can include lost wages and benefits without regard to a specific notice period. In some cases the HRTO has awarded multiple months of lost wages to employees who were not able to find work while awaiting an HRTO hearing. In one egregious case, an employee was awarded nine years of back pay (see Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421) in addition to reinstatement.

Reinstatement is rarely awarded, and would greatly depend on the context. If the employment relationship is so thoroughly frayed that reinstatement is impossible, the HRTO would not consider it reasonable or appropriate. However, depending on the circumstances, this may translate into a higher damages award.

Employers should take care and ensure that they comply with the Ontario Human Rights Code. Failure to do so can lead to significant increases in cost and potential reputational damage. At Bridge Legal & HR Solutions, we provide expertise for employers of all sizes. Call us today at (647) 794-5442 for all your employment law and workplace investigation needs.

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