Changes to code demand greater care of employee rights
When Ontario’s Human Rights Code was amended, in June 2008, the provincial government said the changes would provide a “stronger, faster and more effective” human rights system — but they also created an environment where employers must be even more careful of employee rights.
The changes that have the most significant impact on employers are:
• All provincially regulated employers in Ontario are subject to a human rights regime that prioritizes the rights of all complainants (or applicants) to a hearing with written reasons.
• Employers must respond to human rights applications within a short time frame.
• The time limits by which an applicant can submit an application have been extended.
• The cap on damages for mental anguish resulting from discrimination has been removed.
• Employer rights to appeal decisions have been limited.
New ‘direct access’ model
Under the old legislation, a complainant would make a human rights complaint to the Ontario Human Rights Commission and the complaint would be advanced to the Human Rights Tribunal only if the commission, after a thorough investigation, believed the complaint had merit.
Now, the commission no longer acts as a gatekeeper to human rights complaints. The majority of complaints — whether objectively meritorious or not — will proceed to a hearing unless they are settled.
Changes in timelines
Employers no longer have the luxury of waiting to retain counsel on human rights complaints. Under the new code, an employer must submit a full response outlining its position within 35 days — or 60 days if the application is filed by the commission. If the employer does not do so, the matter may proceed without its participation.
Employers can expect an application will move to mediation and, if necessary, a hearing, within a matter of months, rather than years, as was the case under the old regime.
The time limit to file an application has been extended from six months to one year after the incident occurred and an applicant can now apply to have the time limit extended.
The commission may apply to intervene on any matter and is empowered to file its own application if it feels it is in the public interest. Under the old system, the commission was powerless to proceed unless there was a complainant.
Notably, the tribunal must also consider any policies drafted by the commission if requested to do so by a party. This means the commission can continue to influence human rights jurisprudence through its policy-making powers.
Several commentators have noted that, under the new system, applicants are left without the assistance of the commission, including its investigatory powers, in most cases. Employers should be aware, however, that applicants nevertheless have access to the Human Rights Legal Support Centre in Toronto.
Damages
The code abolished both the monetary cap of $10,000 for mental anguish and the artificial distinction that created a separate class of damages for mental anguish. The tribunal can also order a respondent to pay non-monetary compensation to the party whose right was infringed, or do anything it thinks should be done to promote compliance with the code, both with respect to the infringement and future practice.
Tribunal has final word
Though decisions can be appealed, the code now stipulates a “decision of the tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or any other proceedings unless the decision is patently unreasonable.” This provision makes a successful judicial review unlikely. The tribunal will — short of an egregious error in law — be the final arbiter of a human rights complaint.
However, if the commission believes a tribunal decision is not consistent with one of its policies, it may ask the tribunal to “state a case” to the Divisional Court.
5 tips for employers
After one year with the new regime, there are a few things employers should keep in mind.
Respond to applications quickly: Timelines to make a full response — and make documentary disclosure — are tight. Begin to gather documents, interview witnesses and obtain signed witness statements as soon as an application is received. Determine whether outside counsel is needed within a few days of receiving an application.
Mediate: Mediation is optional but should be pursued in order to settle matters without going to a hearing. Mediation is also a good way to find out what alleged facts an applicant may attempt to rely on (although information gleaned during mediation may not be formally used at a hearing). Mediation, however, may be a waste of time and money if the employer is certain the parties will not settle and the facts of the dispute are straightforward.
Ensure human rights policies are in place and train staff regularly: Ensure policies are disseminated throughout the workforce and enforced consistently, possibly through an internal audit. Staff should be trained regularly on the grounds of discrimination and situations where complaints could arise and managers should be aware of anti-reprisal provisions in the code.
Ensure all employee-related HR decisions are thoroughly documented: Any decisions to hire, fire, demote, discipline or refuse employee requests should be well-documented and supported by legitimate reasons.
Establish internal processes to handle human rights complaints: Having processes in place so employees can have their complaints addressed in a serious, formal manner may avoid human rights complaints. Consider independent investigations where warranted.
Anthony R. Moffatt is a lawyer with the labour and employment group at Ogilvy Renault’s Ottawa office. He can be reached at (613) 780-1546 or [email protected].
