Family status is a prohibited ground of discrimination in the workplace in human rights legislation, not only in Ontario but across Canada. However, the test for finding such discrimination may vary depending on the jurisdiction in which the alleged discrimination occurred and whether the employer is federally or provincially regulated. An applicant must point to some evidence “beyond mere speculation and accusations” to show that a respondent’s conduct has been contrary to the enumerated grounds in the Human Rights Code.

To minimize the chances of future disputes and allegations of workplace discrimination or constructive dismissal, employers need to maintain open lines of communication with employees, particularly when changes are made to their employment terms. A recent decision from the Human Rights Tribunal of Ontario shows how the Tribunal addressed an application alleging discrimination due to family status.

Application Filed with Human Rights Tribunal Alleging Discrimination Based on Family Status

In Hunter v. HMKRO (Ministry of the Attorney General), the applicant filed an application on April 19, 2018. The application alleged discrimination by the respondent concerning his employment based on family status, contrary to the Human Rights Code.

On March 8, 2023, the Human Rights Tribunal of Ontario (the “Tribunal”) directed that a summary hearing be held to determine whether the application should be dismissed. This direction came from a Case Assessment Direction, which suggested there may be no reasonable prospect that the application would succeed according to Rule 19A of the Tribunal’s Rules of Procedures.

Matter Proceeds to Summary Hearing to Test Discrimination Allegations

Under the Tribunal’s Rules of Procedure, the purpose of a summary hearing is to assess whether an application should be dismissed, either in part or in whole, on the basis that there is no reasonable prospect that it will succeed. This is particularly important if an application concerns issues of fairness related to the Human Rights Code, as the Tribunal cannot address these allegations.

At this stage, it was left to the Tribunal to simply determine whether the application has “no reasonable prospect of success” and not to assess whether “the applicant is telling the truth or assessing the impact of the treatment he experienced.” Instead, the test “of no reasonable prospect of success” is determined by “assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.”

Further, the Tribunal noted that “accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly.” Instead, a summary hearing aims to consider whether the applicant can provide evidence to support his claim that he has been discriminated against, contrary to the Human Rights Code. In the matter of Forde v. Elementary Teachers’ Federation of Ontario, the Tribunal explained that an application may continue following a summary hearing if it is found that there is a “basis beyond mere speculation and accusations to believe that an applicant could show a breach” of the Human Rights Code.

Allegations Based on Denial of Request for Accommodations at Workplace

The application arose following an incident of late arrival at work. The applicant was employed as a court reporter and, in his role, was required to arrive at the courtroom 30 minutes before the scheduled proceeding to ensure that the equipment is correctly set up. Generally, the courthouse reporters are scheduled for 8:30 a.m., 9:00 a.m. or 9:30 a.m. for court proceedings that start 30 minutes later.

In his application, the applicant stated that he had an informal arrangement with his employer to start work at 9:30 a.m. as he was required to drop his children off at school at 9:20 a.m. He claimed that management asked questions about this arrangement in or about September or October 2017 and directed him to submit a formal accommodation request. However, this formal request was denied in February 2018, and the applicant alleged he was told that he would be scheduled for shifts beginning at 9:30 a.m. for four weeks so that he could make alternative arrangements for school drop-off. However, he was not going to be guaranteed 9:30 a.m. shifts beyond that time.

Scheduling Changes Leads to Allegations of Constructive Dismissal

The applicant alleged that he was scheduled for a shift beginning at 9:00 a.m. on March 14, 2018. However, he did not report to work. Again, on March 29, 2018, he reported late and didn’t work that day. The applicant alleged the employer intended to constructively dismiss him by getting him to either accept the changes to his work schedule or leave his employment (which he did on March 29, 2018).

The applicant disagreed with the treatment by his employer. However, the Tribunal noted that the applicant “could not point to any evidence to make the connection between the alleged lack of support and the loss of employment with the respondent and his Code-enumerated ground.”

Tribunal Does Not Have Jurisdiction Over Allegations of General Unfairness

For an application to fall within the Tribunal’s jurisdiction, it must:

… “provide some factual basis beyond a bald assertion which links their ground(s) to the respondent’s actions and explains why they think that these actions are discriminatory in nature.”

The Tribunal ultimately dismissed the application after finding that it had no reasonable prospect of success. The Tribunal explained that even if all the alleged facts were accepted as true, the applicant failed to provide evidence beyond his own suspicions that he was differentiated by the respondent based on Human Rights Code grounds.

The Employment and Labour Lawyers at Willis Business Law Represent Employers in Workplace Disputes

The skilled employment lawyers at Willis Business Law, led by J.P. Karam, understand the importance of implementing proper workplace policies and ensuring compliance with both provincial and federal legislation, including the Human Rights Code. However, when issues arise relating to workplace health and safety and discrimination, it is vital for employers to understand the process once a complaint has been made. At Willis Business Law, our employment and labour lawyers help clients prepare proactively to avoid future incidents and disputes. In cases where an issue proceeds to litigation, our team is ready to protect your interests and advise you of your options to obtain the best possible result.

Willis Business Law is conveniently located in Windsor’s financial district. Our firm proudly represents clients throughout Windsor-Essex and the surrounding areas. To schedule a consultation with a member of our team regarding claims of workplace discrimination or occupational health and safety concerns, contact us online or call us at 519-945-5470.