The following are highlights of some of the significant decisions, settlements, and cases over the past year in which the Commission was involved.
Commission settlements and orders
Toronto District School Board (Commission Settlement)
The Commission and the Toronto District School Board (TDSB) reached an important settlement following a Commission-initiated complaint against the Board in July 2005. The settlement deals with the application of safe school provisions of the province’s Education Act, its regulations and related TDSB policies. The Commission’s complaint alleged that these provisions had a disproportional impact on racialized students and students with disabilities. The complaint was not referred to the Human Rights Tribunal of Ontario, but rather, was successfully resolved through cooperation and good will. The School Board has committed to a number of measures to address this issue including the collection of data concerning the impact of school discipline measures, the consideration of mitigating factors in the imposition of discipline, and notification to parents where the police are called on to school premises. A similar complaint initiated by the Commission in July 2005 against the Ministry of Education remains outstanding.
Lakehead District School Board (Commission Settlement)
The Commission settled a Thunder Bay case concerning discrimination based on sexual orientation. A mediated agreement between the parties involved will result in increased education and understanding around sexual diversity issues for students and staff of the Lakehead District School Board (the “Board’).
The complainant was subjected to harassment and discrimination based on perceptions of his sexual orientation from fellow students on numerous occasions. While the Board took action by disciplining the individual students involved, the complainant was also seeking broader, board-wide initiatives to curb future occurrences of harassment and discrimination based on sexual orientation.
The terms of the settlement reached by the parties include the joint development of a document entitled Proactive Steps in Preventing Homophobic Harassment, an equity statement the Board has agreed to adopt and promote, the effectiveness of which will be measured by the Board’s Diversity Committee. The Board has also developed a draft Diversity Plan, and will be holding a “train the trainers” workshop titled, “We’re Erasing Prejudice for Good,” for one teacher from each of its schools. These teachers will then take this knowledge back to their schools where they will promote understanding of sexual diversity issues to staff and students.
Dufferin-Peel Catholic District School Board (Commission Settlement)
The Commission mediated a positive settlement of four complaints with the Dufferin-Peel Catholic District School Board. The settlement followed a Commission investigation of concerns that the application of school discipline policies was having a discriminatory impact on students from racialized communities and students with disabilities. Through cooperation and good will, the parties reached a very positive agreement, which will result in increased education and understanding around race and disability-related issues for the Board and the staff and students at its schools.
One of the key issues raised in the complaints was that mitigating factors were not being sufficiently considered before imposing a suspension or expulsion on a student. In one case, a student with attention deficit disorder asserted that his inability to sufficiently control his behaviour due to his disability was not considered nor accommodated before he was suspended. In other cases, students related that they were the target of racial or other harassment. It was agreed that such mitigating factors are to be taken into account in determining whether discipline or measures less severe than suspension or expulsion are more appropriate.
As part of the resolution of these cases, the Dufferin-Peel Catholic District School Board has committed to undertake a number of measures ranging from anti-racism awareness and disability accommodation training, to sharing information on accessing the appeal process. Other initiatives include making alternative educational programs and services available to all students under suspension or expulsion, and working with the Commission to look at gathering statistics and ensuring measures undertaken respect the principles set out in the Code.
Commission Inquiry into Para-transit Services in Toronto, London, Hamilton and Windsor (Commission Order)
Under section 14 of the Code, the Commission has the authority to inquire into a program, on its own initiative, and has the discretion to declare, by order, that the program does, or does not, satisfy the requirements of the special program provision in subsection 14(1) of the Code.
The Commission decided to exercise its power under section 14 of the Code and initiated an inquiry into the para-transit services provided by the public transit providers in Toronto, London, Hamilton and Windsor. The Commission widely circulated a staff position paper in order to consult with transit providers and a large number of other stakeholder groups. After considering the submissions and the staff position paper, the Commission, in September 2005, made orders declaring that these para-transit services are not special programs.
The effect of the declaratory order is that complaints of discrimination relating to lack of accessibility or substandard para-transit service cannot be shielded from examination by the Code’s protections for special programs. The Commission’s section 14 decision is not final as applications for reconsideration of these declarations have been filed by these public transit providers.
Settlements and decisions at the Human Rights Tribunal of Ontario
Omoruyi-Odin v. TDSB (Settlement, H.R.T.O.)
Mr. Omoruyi-Odin is a Black man who alleged discrimination in employment relating to race, and reprisal. He commenced his employment with the former Scarborough Board of Education in 1977, and has been continuously employed by it or its successor, the Toronto District School Board, since that time.
There were three issues in the complaint: (i) whether the complainant was denied promotional opportunities because of his race, colour, ancestry, and place of origin; (ii) whether the complainant was subject to reprisals as a consequence of initiating his human rights complaint; and (iii) whether there was systemic discrimination against African Canadians such as the complainant with respect to promotional opportunities, resulting in African Canadians being under-represented in positions of responsibility at the Board. The term “positions of responsibility” includes department heads, assistant department heads (both acting and permanent), vice principals and principals.
The parties agreed to settle the matter with no admission of liability or withdrawal of the allegations. The respondent Board agreed to a series of public interest remedies. They will develop a self-identification survey of all employees to track, among other things, the number of racial minority persons who are in permanent and acting positions of responsibility for the 2005-06 school year. They agreed to implement equity-based performance indicators in selection, promotion, and competition processes. The Board will make the results of their reports and self-identification survey publicly available, and will develop a mentorship program, which will include supports for racialized teachers.
Livingston v. Intelligarde International Incorporated, Toronto Transit Commission and Toronto Coach Terminal Ltd., et. al. (Settlement, H.R.T.O.)
Mr. Livingston is a Black man who alleged that he was a victim of racial profiling, and that the respondents discriminated against him with respect to transit services because of his race, colour, ancestry and place of origin.
The parties agreed to settle the matter with no admission of liability or withdrawal of the allegations. The corporate respondent agreed to a series of public interest remedies. It committed to putting up posters in the Bus Terminal indicating that it complies with the Code, and providing the Commission’s contact information. It will require all security companies who bid for contracts to represent that (i) they have trained their officers on human rights and racial profiling, and (ii) they will comply with human rights legislation. It will also require all security officers at the Bus Terminal to comply with the Code, and, in cases of confrontation, present customers with contact information for the Terminal Manager. Further, Intelligarde, the security company, will develop and implement a written anti-discrimination policy, and provide it to its employees and all future customers. It will continue to provide human rights training to its officers, and will ensure that future training includes a discussion of the policy.
Lewis v. TTC et al. (Settlement, H.R.T.O.)
Mr. Lewis is a Black man who has been employed as a dispatcher in the Wheel Trans Division of the corporate respondent since 1992.
Mr. Lewis’ first human rights complaint focussed on three job competitions for which he was unsuccessful: October/November 1998, August 1999, and January 2000. Mr. Lewis’ second human rights complaint concerned reprisals that he alleged he was subjected to after his first complaint was served on the respondents.
The parties reached a settlement with no admission of liability or withdrawal of the allegations. In addition to awarding the complainant a shift supervisor position on a nine-month secondment, the respondents also agreed to implement several public interest remedies. They will review and amend their existing policies to remove systemic barriers and ensure equality in employment and advancement opportunities at the TTC. They committed to developing a self-identification survey for all employees, and to retain one or more experts in data collection to assist them in preparation of this survey. They will notify and educate all employees of the survey’s purpose prior to its implementation, and will make the results of the survey publicly available. They also committed to establishing hiring and mentorship processes that are bias-free and draw upon the input of racialized employees.
A.B. v. Minister of Transportation and Minister of Government Services (Settlement, H.R.T.O.)
A.B. is transgendered person who sought to change the sex designation on a driver’s licence and birth certificate, before having sex reassignment surgery. The Ministry of Transportation had a practice (but not a written policy) whereby it would only change the sex designation on a driver’s licence after the person had this surgery.
With respect to changing the sex designation on a birth certificate, the Vital Statistics Act requires that a person have “transsexual surgery” in order to get the designation changed. There is no definition of “transsexual surgery” in the Act. Historically, the Ministry (now called Government Services) assumed that the required surgery was genital sex reassignment surgery.
The parties agreed to settle the matter with no admission of liability or withdrawal of the allegations. As a result of this settlement, the Ministry of Transportation has advised the College of Physicians and Surgeons of Ontario, and will advise anyone who inquires, that it will change the sex designation on a driver’s licence if a physician provides a letter advising that the physician has treated or examined the person and in the practitioner’s opinion the change on the licence would be appropriate.
The Ministry of Government Services has advised the College of Physicians and Surgeons of Ontario, and will advise anyone who inquires, that it relies on the judgment of practitioners as to whether a person has had “transsexual surgery”. This should allow, for example, a person who has had breast surgery to get the sex designation changed on a birth certificate.
The Ministry has also agreed to put the question of amending the Vital Statistics Act on its policy review agenda.
Saab and Roberts v. Young Drivers of Canada and 1203078 Ontario Inc. (Settlement, H.R.T.O)
Saab and Roberts alleged that the respondent driving school did not accommodate their disability as deaf customers. The driving school responded that the cost of sign language interpretation was two to three times the course tuition and, as such, was an undue hardship. Young Drivers of Canada further noted that they do not directly provide driving courses, but rather licenses their courseware and trademark to independent franchisees, such as the driving school in question.
The parties agreed to settle the matter with no admission of liability or withdrawal of the allegations. The respondents agreed to a public interest remedy whereby they will create captioned videos of their lessons, which are filmed live from the perspective of a student taking their in-class driver training program. Young Drivers of Canada also committed to working with the Ministry of Transportation on other long-term approaches to accommodating customers who are deaf as part of that Ministry’s consultations with stakeholders on this issue.
Larose v. Greater Sudbury Police Service et al. (Settlement, H.R.T.O.)
Mr. Larose is a right leg amputee who uses a prosthetic leg. On December 8, 2001, he was pulled over, taken to the respondent police station and held for a number of hours, after which he was released without charge. He alleged that, during this period in custody, the respondents failed to accommodate his disability-related needs because they confiscated his prosthetic leg.
The parties agreed upon an amount in settlement of the matter with no admission of liability or withdrawal of the allegations. The corporate respondent provided a letter of apology to the complainant. The corporate respondent also agreed to renovate the Police Service’s washrooms to better accommodate persons with disabilities. It will provide an on-site wheelchair, will train staff for such situations in the future, and will assign a human resources manager to address accessibility issues on an ongoing basis.
Lepofsky v. Toronto Transit Commission (Decision, H.R.T.O.)
In his complaint, Mr. Lepofsky requested that the Toronto Transit Commission (“TTC”) make audible, reliable and consistent subway station stop announcements in order to accommodate the fact that, as a patron who is blind, he cannot read the station names printed on the station walls. In its decision dated September 29, 2005, the Tribunal held that, for over 10 years, the TTC failed to accommodate the Complainant and other “TTC patrons with similar disabilities”.
The Tribunal ordered the TTC to immediately commence announcing subway stations, clearly and consistently at each station. It also ordered the TTC to conduct educational seminars for guards, drivers, and senior management on the importance of reliable subway stop announcements.
The Tribunal also set up various monitoring protocols. It declared, for example, that its order be copied to the TTC Commissioners who are responsible for correcting the situation. In addition, the TTC must conduct monthly surveys, copied to the Tribunal, tracking the consistency and appropriateness of subway stop announcements. Finally, the Tribunal appointed Matthew Garfield, former Chair of the Human Rights Tribunal of Ontario, to monitor the situation. Mr. Garfield will have all necessary authority to deal with the parties as well as such others as he deems appropriate in order to carry out the Tribunal’s orders.
Huang v. 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association) et. al. (Decision, H.R.T.O., under appeal)
Ms. Huang alleged discrimination in services based on creed. She joined the respondent Association in 2001, and later that year, revealed to them that she was a Falun Gong practitioner. At a subsequent Association gathering, an Association council member informed her that she could no longer participate in Association activities. When the complainant called the Chair of the Association in early 2002, he told her that no Falun Gong practitioner could be a member of the Association. In December 2002, new council members were elected but they decided to uphold the previous decision to cancel her membership. Ms. Huang filed a complaint with the Ontario Human Rights Commission.
The Tribunal found that Falun Gong is a creed. In addition, the Tribunal found that “services” includes offering membership in an association. The Tribunal further found that the complainant was banned from the Association because of her beliefs.
The complainant was awarded damages for loss of dignity and damages for mental anguish. The Tribunal also awarded public interest remedies. It ordered that the respondent Association immediately revoke the complainant’s exclusion from the Association. It also ordered that the respondent Association post English and Mandarin Code cards, and to implement an anti-discrimination policy and amend its Constitution to address religious bias and discrimination.
The Tribunal decision is currently under appeal to the Divisional Court.
Decisions from higher courts
Losenno v. Ontario Human Rights Commission and Metroland Inc. (Ontario Court of Appeal, leave to appeal to the Supreme Court of Canada denied)
Mr. Losenno filed a complaint with the Ontario Human Rights Commission, alleging discrimination on the basis of disability. The Respondent offered to settle the matter and the Commission did not refer the matter to the Human Rights Tribunal of Ontario because it felt that the offer was reasonable. Mr. Losenno appealed this decision.
Since the settlement offer was consistent with the legislative intent of the Commission’s enabling statute, the Court of Appeal held that the Commission could consider the settlement offer in coming to its decision to not refer the complaint to a Board of Inquiry. In addition, as Metroland did not claim privilege over its settlement offer, it could be placed before the Commissioners.
In determining the reasonableness of the offer, the Court further held that the Commission was entitled to significant deference and its decision could only be re-evaluated based on the standard of patent unreasonableness. The Court held that the Commission evaluated Metroland’s offer and found it was equivalent to what the appellant could reasonably expect to receive should the case proceed to a Board of Inquiry (now the Tribunal). The Court agreed that it was open to the Commission to find that the offer was reasonable with regard to the general, specific and public interest remedies. The Court also agreed that it was open to the Commission to find that many of the claims made by the appellant would not receive compensation.
Mr. Losenno sought leave to appeal to the Supreme Court of Canada; leave was denied.
Multani v. Commission Scolaire Marguerite-Bourgeoys (Supreme Court of Canada)
This is a significant case on religious accommodation. Mr. Multani, a young Sikh student in Quebec, wished to wear his kirpan, a metal object resembling a dagger, worn as an expression of the Sikh faith. The school’s governing board prohibited this. The Quebec Court of Appeal affirmed the governing board’s decision. Mr. Multani appealed to the Supreme Court of Canada. The OHRC intervened because of its expertise arising from its success in a similar 1991 case. As a result of the Commission’s argument in that case, all schools in Ontario must accommodate this religious practice, provided the kirpan is worn with safety conditions. In intervening in this case, the Commission argued that the Ontario practice set out in the 1991 precedent should be applied across Canada.
In its unanimous decision, the Supreme Court followed the submissions of the Ontario Human Rights Commission, and struck down the Quebec Court of Appeal’s decision in finding that Mr. Multani should be permitted to wear his kirpan to school provided it was in a sheath, was difficult to remove and was worn under his clothes. The court held that the total ban on wearing of a kirpan violated the Charter of Rights and could not be justified as a reasonable limit prescribed by law.
Tranchemontagne and Werbeski v. Director of the Ontario Disability Support Program of the Ministry of Community Family and Children’s Services and Social Benefits Tribunal (Supreme Court of Canada)
The complainants applied for income support as persons with disabilities, but were denied. The Ontario Human Rights Commission intervened in the appeal to the Supreme Court of Canada, which was heard on December 12, 2005. At issue was whether the Social Benefits Tribunal could find that a section of the Ontario Disability Support Program Act, 1997 (the “ODSPA”) was inconsistent with the Human Rights Code, and therefore could be disregarded by that Tribunal. The section states that a person is not eligible for income support as a disabled person if his or her only substantial impairment is alcohol or other substance dependence or addiction. In contrast, the Human Rights Code recognizes alcohol and drug addiction as a disability.
The Social Benefits Tribunal refused to consider whether this section was contrary to the Human Rights Code.
In its ruling dated April 21, 2006, the Supreme Court agreed with the Commission’s position. The Court held that the Human Rights Code is fundamental law. Any tribunal that has the power to consider questions of law also has the power, as a matter of ordinary statutory interpretation, to determine whether another statute is inconsistent with the Code. In the case of an inconsistency, the Code prevails unless the other statute expressly states that it overrides the Code. The Social Benefits Tribunal could, therefore, determine if the effective exclusion of alcoholism from disability coverage was contrary to the Code. If that Tribunal makes such a finding then the remedy would be to ignore that restrictive provision in the ODSPA and to grant the disability benefit.
Gurofsky v. Ontario Human Rights Commission (Supreme Court of Canada)
The Commission argued that it had correctly decided, under sections 34 and 37 of the Ontario Human Rights Code, that Gurofsky’s complaint could more appropriately be dealt with under the collective bargaining regime in place at his college. The Divisional Court agreed, holding that so long as the Commission was satisfied that a grievance was outstanding and had not been disposed of, it was not patently unreasonable for the Commission to decide that it was appropriate to be dealt with through the union process.
The Supreme Court of Canada dismissed the application for leave to appeal and, as is its practice, did not issue reasons.