Commission-initiated complaint against the Ministry of Education
A settlement between the Commission and the Ontario Ministry of Education will promote school safety while ensuring that all students, including students with disabilities and racialized students, are given the opportunity to reach their full potential. The settlement follows a Commission-initiated complaint filed against the Ministry in July 2005, which alleged that the application of school discipline legislation and policies were having a discriminatory impact on racialized students and students with disabilities.
Commission concerns were based on submissions received during its Racial Profiling Inquiry, its consultation on disability issues in Ontario’s education system, and an external report prepared for the Commission, which supported these concerns with evidence from Nova Scotia, the United States and Britain.
The Ministry has agreed to initiate or continue developing measures that will promote compliance with the Code. These include:
- acknowledging the widespread perception that the Education Act has a disproportionate impact on students from racialized communities and students with disabilities
- confirming the concept of “zero tolerance” has no place in the legislation, regulations or policies
- considering applying progressive discipline as an alternative to suspensions and expulsions
- requesting expanding the regulations on mitigating factors and requiring principals and school boards to consider such factors before suspending or expelling a student
- providing access to alternative education opportunities to suspended or expelled students
- supporting the collection of data on suspensions and expulsions and making this information available
- requiring significant training initiatives for principals, vice-principals and teachers on anti-racism, anti-discrimination, cultural awareness and disability accommodation, along with training on amendments to the safe schools provisions
- working with the Ministry of Training, Colleges and Universities to promote, advertise and recruit teachers from racialized communities, persons with disabilities and other under-represented groups
- holding a provincial Safe Schools Symposium with participation by the Commission following passage of any amendments
- reporting to the Commission each year on its progress in implementing the agreement.
Ontario Lottery and Gaming Corporation (OLG)
The Commission reached settlements in related complaints against the Ontario Lottery and Gaming Corporation (OLG) and two of its gaming operations. The complaints were filed by employees who alleged managers at Woodbine Racetrack Slots and Casino Sault Ste. Marie violated Code provisions on an employer’s duty to accommodate staff experiencing disability. The employees alleged that they were required to return to work before their doctor recommended, return to activities not advised by their doctor, and produce a doctor’s note dated the same date as their absence due to medical disability.
The terms of the settlements will help ensure human rights are respected when applying corporate disability policies and procedures within all OLG workplaces, which employ nearly 8,000 workers at 23 locations. They also clarify that OLG and its gaming operators are responsible for the actions of third-party disability case management service providers.
Under these settlements, OLG will modify its policies to make sure that a request for medical documentation dated the same date as an absence is reasonable in the circumstances, given that an employee may not be physically able to see a doctor the same day. Corporate and management responsibility for maintaining confidentiality of medical and related information was also addressed.
OLG has agreed, within nine months, to hire an external consultant to review and update its disability accommodation policy, form a new independent review committee with both OLG management and staff, and develop an internal complaint mechanism, which the committee will oversee and monitor.
Within a year, OLG has agreed to train all staff members and its disability case management service provider in the new policy and complaints mechanism, with an emphasis on disability and the duty to accommodate, and focus training on the broad range of disabilities covered by the Code and the responsibilities of both OLG and its disability case management service provider under the legislation.
Decisions at the Human Rights Tribunal of Ontario
Brown v. Trebas Institute Ontario Inc.
This case involved a complaint filed by Delano Brown, who alleged the private post-secondary career college discriminated against him in his efforts to enrol in a Music Business Administration study program.
Mr. Brown, a blind student, required specially outfitted computer equipment and written course materials in alternative (electronic or audio) format. Although he passed the entrance test, was accepted into the program and paid his enrolment fee, former administrators testified that they either did not know how to pursue the matter of accommodation or did not consider it within the scope of their responsibilities, and left these issues to Mr. Brown to arrange. They also denied Mr. Brown’s request for an enrolment extension to complete arrangements for his disability-related accommodation needs and financial support.
The Tribunal found that Trebas Institute discriminated against Mr. Brown by failing to take appropriate steps to accommodate him and by denying his request to defer enrolment. Trebas Institute was also found to have misapprehended its legal obligation to remove barriers and take responsibility for the accommodation process.
The Tribunal ordered that Trebas must not apply its enrolment deferral policy in a way that would conflict with its duty to accommodate students with disabilities. Trebas is to make all inquiries necessary to ensure that written materials for courses offered by the Institute can be made readily available in formats accessible to persons with visual disabilities. The college was also ordered to designate a position in its administrative structure with primary responsibilities for meeting the accommodation needs of students with disabilities, and to ensure the training of that person in the principles of accommodating students with disabilities receiving educational services.
Nassiah v. Peel (Regional Municipality) Services Board
In February 2003, Peel Police were contacted to investigate a possible shoplifting allegation at a large department store in Mississauga. The Tribunal found that Ms. Nassiah, a Black woman, was subjected to a more intensive, suspicious and prolonged investigation because of her race.
The Tribunal found that Ms. Nassiah had been subjected to racial profiling. She had been wrongly apprehended by store security on suspicion of stealing a low-priced item despite her repeated and impassioned denials, and a Peel police officer conducted a discriminatory investigation that included:
- stereotypically assuming that a Black suspect might not speak English
- assuming that the White security guard was telling the truth and that the Black suspect was not, without properly looking at all the evidence, including a videotape of the alleged theft, which exonerated her
- adopting an “assumption of guilt” approach to the investigation by immediately demanding that Ms. Nassiah produce the missing item
- unnecessarily arranging for a second body search after the first one had demonstrated that she did not have the allegedly stolen item
- continuing with the investigation, rather than releasing Ms. Nassiah, even after the second body search confirmed that she did not have the stolen item
- spending up to one hour pursuing an allegation of theft, in the face of fragile evidence, for an item worth less than $10.
The Tribunal also found that the police officer subjected Ms. Nassiah to verbal abuse during the investigation, and threatened to take her to jail if she didn’t produce the missing item. The police and store security ultimately released Ms. Nassiah after they concluded that they had made an error.
The Tribunal found that racial profiling is a form of racial discrimination, and that it is contrary to the Human Rights Code for police to treat persons differently in any aspect of the police process because of their race, even if race is only one factor in the differential treatment. The Tribunal noted the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual “bad apples” but part of a systemic bias in many police forces.
In addition to awarding Ms. Nassiah $20,000.00 in damages, the Tribunal’s decision requires Peel Regional Police Service to take the following systemic steps to address racial profiling and to prevent future discriminatory practices of a similar nature:
- develop a specific directive prohibiting racial profiling, which should make clear that if race plays any irrelevant part in the police decision, the action is prohibited
- hire an external consultant with expertise in racial profiling to assist in preparing the new directive and training materials
- ensure that all new recruits, current officers, the officer in this case, new and current supervisors are trained on the new directive, the social science literature on racial profiling and the current case law
- publish a one-page summary of this decision in its monthly police bulletin, outlining the Tribunal’s findings and orders.
Lepofsky v. Toronto Transit Commission (TTC)
In July 2007, the Tribunal found that the TTC’s failure to ensure announcements of all stops on buses and streetcars violated the human rights of persons with disabilities, particularly riders with visual impairments. It ordered the TTC to begin announcing bus route stops within 30 days. This follows a similar ruling by the Tribunal in July 2005 involving a complaint about the lack of stop announcements in Toronto’s subway system.
The Tribunal ordered the TTC to take the following steps:
- drivers to announce all surface stops clearly and consistently
- develop an implementation plan within 15 days, and implement it within 30 days of the decision date
- offer educational seminars for drivers, supervisors and senior managers, and extend these to all future drivers, supervisors and senior managers
- amend job descriptions of applicable TTC employees to include the requirement to call out all stops, and that promotion or performance review decisions take into account an employee’s performance related to disability accommodation and accessibility
- if the electronic system the TTC has selected does not achieve a minimum 98% success rate for calling out stops, after one year the TTC must revert to manual announcements until it can make sure automated announcements will exceed the 98%
- provide training for TTC Commissioners on the obligation of the TTC to persons with disabilities under the Human Rights Code and other legislation
- hold an open, accessible and publicized forum on transit accessibility and accommodation issues, within six months of decision, and then hold forums at least once a year for the next three years
Lane v. ADGA Group Consultants Inc.
Mr. Lane was hired as a quality assurance analyst by ADGA Group Consultants Inc., an Ottawa-based company involved in contract government information technology services. A few days after he started his job, Mr. Lane advised his supervisor that he had bipolar disorder and required accommodation. The accommodation included monitoring for indicators that he might be moving towards a manic episode; contacting his wife and/or doctor; and occasionally allowing him to take time off work to avert a shift from pre-manic stage to a full-blown episode. His supervisor gave no assurances, but undertook to get back to him.
As Lane became more anxious about management's response to his accommodation request, he began to exhibit pre-manic symptoms. Although Mr. Lane's supervisor and manager were aware of this when they met with him a few days later, they did not address any of his needs, they did not consider putting the meeting off to get more information, and they did not obtain legal advice. Instead, they immediately terminated his employment, which triggered a severe reaction that led to full-blown mania. Mr. Lane was hospitalized for 12 days, after which he experienced severe depression due to his inability to obtain other work. His financial position deteriorated, he had to sell his house, and his marriage ended.
The Tribunal held that management terminated Mr. Lane because of his disability and perceptions related to his disability, with virtually “no investigation as to the nature of his condition or possible accommodations within the workplace.” The Tribunal also found that ADGA had breached the procedural duty to accommodate, and this itself constituted a form of discrimination. The Tribunal also rejected ADGA's argument that Mr. Lane had an obligation to disclose his disability during the hiring process.
The Tribunal awarded Mr. Lane $35,000 as general damages; $10,000 for mental anguish; a further $34,278.75 in special damages, as well as pre- and post-judgement interest. The Tribunal ordered ADGA to establish a written anti-discrimination policy and retain a consultant to provide training to all employees, supervisors, and managers on the obligation of employers under the Code, with a focus on the accommodating persons with mental health issues.
ADGA is appealing the decision to Divisional Court.
Bekele and Ontario Human Rights Commission v. Cierpich
Mr. Bekele, who identifies as Black, wished to purchase a unit in a co-operative apartment building. The building’s bylaws require that prospective purchasers be approaved by a majority of the Board of Directors. Ms. Cierpich was President of the Board at that time.
While it usually takes one meeting and at most seven business days for the Board to reach a decision, Mr. Bekele or his representative had to attend three different meetings. Approval was only granted after he threatened legal action, and the approval time was four times longer than the usual maximum.
The Tribunal found that race and colour were factors in this differential treatment. Incidents included the President demanding to see bank statements, based on the belief that Mr. Bekele was using drug money to pay for the unit, other Board members worrying that he was a member of Al-Qaeda, and the property manager fearing that he would bring cockroaches into the building.
During and after Mr. Bekele’s attempts to get approval, various residents within the building wrote letters to the Board raising concerns about racism within the Board and the building. These allegations were never substantively responded to.
Mr. Bekele originally filed a complaint against Ms. Cierpich, another Board member, the property manager and the building corporation itself, all but Ms. Cierpich settled during the Commission’s investigation, and the Tribunal hearing proceeded against Ms. Cierpich only.
The Tribunal found that she had violated Mr. Bekele’s rights to be free from discrimination with respect to the occupancy of accommodation. The Tribunal also found that as President of the Board, Ms. Cierpich violated the Code by failing to investigate or take action on allegations of racist comments being made in the building.
The Tribunal ordered Ms. Cierpich to pay Mr. Bekele $8,000 in general damages and $2,000 in damages for mental anguish, with prejudgement interest on these amounts. It also ordered that if Ms. Cierpich ever decides to run again for election to the Board, she must attend a human rights training session, at her own expense, and must send a letter to the Commission notifying it of her intention to re-join the Board, and confirming she has attended the training.
Giguere and Ontario Human Rights Commission v. Popeye Restaurant and Landry
Ms. Giguere was in a common-law relationship with a man who was HIV-positive and also had Hepatitis C, when she began working at Popeye Restaurant in a town in northern Ontario. When she applied for the job, she was open about her partner’s medical situation, and Ms. Landry, the restaurant owner, did not see this as a concern.
Two weeks later, Ms. Giguere was terminated because of customer complaints related to her common-law spouse, and the concern of customers that Ms. Giguere had or might contract the AIDS virus.
The Tribunal found that Ms. Giguere was fired because of her association with a person with a disability, and that a business owner is not entitled to terminate an employee because they feel their business will suffer because of the views of customers, where those views are related to proscribed grounds of discrimination.
During the Tribunal process, allegations arose that Ms. Giguere offered money to another person to provide certain testimony before the Tribunal. The Tribunal found that the complainant engaged in abuse of the Tribunal’s process. Even though she had been discriminated against, the Tribunal refused to award Ms. Giguere damages because of these circumstances. Instead, it ordered the respondents to make a charitable donation of $2,500 to an organization that provides services to people living with HIV/AIDS in the town, or that provides public education or outreach on HIV/AIDS issues. It also ordered the respondent to post Human Rights Code cards at the restaurant.
Settlements at the Human Rights Tribunal of Ontario
Because the Commission has carriage of the complaint at the Tribunal, settlements almost always involve the inclusion of strong public interest remedies. Since the Commission must sign Minutes of Settlement, it can negotiate for these remedies, particularly in cases that may initially appear to affect only the individual, but which in fact have a broader public interest component. Under the terms of each of these settlements, there was no admission of liability, nor was there a withdrawal of the allegations.
Dodd v. 1301429 Ontario Inc. o/a Days Hotel and Conference Centre, Toronto Airport East
Days Hotel and Conference Centre, Toronto Airport East and hotel guest Barbara Dodd reached a settlement that will see the establishment of new fire safety practices for the hotel, and sets a positive example for using visual strobe light fire alarms for deaf, deafened and hard of hearing individuals in Ontario hotel accommodations.
Ms. Dodd, who is deaf, stayed at the Days Hotel for a special event. In the early morning, the fire alarm went off, unbeknownst to her and other deaf guests. Although it was a false alarm, the hotel did not have a visual fire alarm system in place to warn deaf patrons of a fire.
Days Inn agreed to install a strobe light fire alarm system in select locations of the hotel, including the lobby, restaurant, swimming pool area, ballroom, public washrooms and four selected guest rooms. Rooms equipped with visual fire warning devices will be reserved for people identifying themselves as deaf or hard of hearing until all others rooms are occupied. The hotel will also develop and implement policies and procedures for safely accommodating visitors with hearing disabilities, in consultation with the Commission, Ms. Dodd and expert advisors.
Industry associations applaud the settlement, which will support their efforts to provide leadership and resources to their members to meet accessibility requirements.
Malkowski and Simser v. Alliance Atlantis Cinemas Partnership, AMC International Inc., Cineplex Entertainment LP and Rainbow Centre Cinemas Inc.
This settlement will increase the number of theatres with closed captioning systems so more people who are deaf, deafened and hard of hearing can fully enjoy theatre-going experiences in the same way as everyone else.
The settlement includes the installation of new closed captioning systems in multiple Ontario theatres. These installations will occur on a phased-in basis following a comprehensive selection and testing period of new commercially available closed captioning systems by the exhibitors. Most of the exhibitors have also agreed to add a closed captioning system to all new theatres opened in the province of Ontario. The agreement also includes the appointment of a monitor to oversee settlement obligations. The Commission is still attempting to negotiate a settlement with Paramount Canada.
R. by litigation guardian R. v. Toronto District School Board, et al.
The complainant was a high school student who was diagnosed with behavioural disorders. The student alleged inadequate accommodation and unfair and harsh discipline by the School Board.
Despite being aware of the disability, the School Board suspended the complainant 13 times in 18 months. The majority of these suspensions were for “defiant,” “oppositional” or “confrontational” behaviour that was related to the complainant’s disability.
As a result of these suspensions, the student was transferred to a different school and required to sign a behaviour contract. The student was then expelled for an altercation. After attending an alternative program, the complainant returned to school in September 2004 for a short period of time and then dropped out of the school system.
The parties engaged in a lengthy mediation process that took more than 18 months, and involved seven mediation meetings, two mediators, a special education expert, an education coordinator and an independent psychiatrist. During this process, the parties obtained an independent assessment of the complainant to determine accommodation needs, and ensured that the complainant was given access to interim educational opportunities.
As part of the settlement, the School Board agreed to pay for the services of an education assistant to provide a liaison between the complainant and education service providers including the TDSB; provide a computer to the complainant; and reimburse the complainant for Internet access for two years. It also agreed to update their training in accordance with Bill 212 and its regulations, which require Boards to consider mitigating factors before deciding to suspend or expel. Finally, it agreed to meet with Commission staff with respect to an earlier settlement.
Cases in higher courts
R. v. Badesha (Ontario Court of Justice)
The Commission appeared as an intervener at the Ontario Court of Justice in Brampton. Mr. Badesha, a devout Sikh who, in observance of his faith, wears a turban, was charged with operating a motorcycle on a highway without wearing a helmet contrary to the Highway Traffic Act. Mr. Badesha was seeking to be excused from this requirement for religious reasons.
The Commission intervened as the case involved the interpretation and application of Ontario’s Human Rights Code, and took a position in support of Mr. Badesha’s request for religious accommodation. The court found that the health and safety requirement of wearing a helmet outweighed Mr. Badesha’s religious rights in this case. Mr. Badesha has appealed the decision.
1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association) o/a Ottawa Chinese Senior Association et al. v. Ontario Human Rights Commission and Huang (Ontario Divisional Court, Huang's motion for leave to appeal to the Court of Appeal denied)
The Ottawa Chinese Senior Association (OCSA) appealed the Human Rights Tribunal's decision which found that Falun Gong constituted a creed within the meaning of the Human Rights Code, and that the Ottawa Chinese Senior Association had discriminated against Ms. Huang for refusing her membership based on her creed.
The Divisional Court allowed the appeal on the basis that the OCSA did not have adequate notice of the proceedings, and sent the matter back to the Tribunal for a new hearing. The Court did not comment on the merits of the appeal.
Attorney General for Ontario and Chief Coroner v. Ontario Human Rights Commission, Braithwaite and Illingworth (Divisional Court decision)
This was an appeal from the decision of the Honourable Peter Cory, sitting as a Human Rights Tribunal, in which he had found that Ontario's Coroners Act was contrary to the Human Rights Code, because it gave prisoners in jail an automatic inquest when they died behind bars, but denied an automatic inquest to involuntarily committed psychiatric patients who are confined to psychiatric hospitals.
The Court held that a reasonable person aware of the different purposes for which psychiatric patients are held in custody would not feel that their inherent human dignity has been impaired, and that the coroner conducts an individualized assessment in deciding whether or not to conduct an inquest.
Commission counsel and counsel for Braithwaite have filed a Notice of Motion seeking leave to appeal to the Court of Appeal.
Zubovits v. Ontario Human Rights Commission (Divisional Court decision on an Application for Judicial Review)
This was an application to judicially review a decision of the Commission. The Commission had decided that Mr. Zubovits’ complaint could more appropriately be dealt with under the Crown Employees Collective Bargaining Act, and the Labour Relations Act.
Mr. Zubovits had entered into a settlement at the Greivance Settlement Board. However, he later sought to retract his consent to the settlement. The Commission in its decision noted that the applicant was a member of a union and through the two acts, he had access to a grievance procedure in which human rights violations could be fully arbitrated. The Commission noted that he had filed grievances concerning the same situation as referenced in his complaint, including harassment and dismissal from employment, and that a mediated settlement had been reached.
The Divisional Court upheld the Commission's decision. It held that the human rights issues raised in the complaint overlapped with his grievances and were addressed by the settlement. Significantly, the Court held that there does not have to be an arbitration under another statute before the Commission concludes that the other statute is the more appropriate route for dealing with the complaint. The Court also acknowledged that Mr. Zubovits understood that the settlement included compensation for the human rights component of his complaint.
Mr. Zubovits has filed an application for leave to appeal to the Court of Appeal.
Ontario Human Rights Commission v. Dofasco Inc. (Divisional Court)
The Commission's appeal from the Tribunal decision in this case was dismissed.
The complainant had worked as a crane operator at Dofasco, but went off work with an injury. After approximately four years off the job, Dofasco offered her a switchboard operator's position and gave her a limited time to take the position. She did not take the job within the time provided, indicating that she wished to speak with her doctor first. The Tribunal made central findings of fact including that the complainant did not genuinely want to return to work at Dofasco. Rather, she wanted the Worker’s Compensation Board to provide her with retraining to become an accountant, and the Tribunal found her refusal to take the switchboard job when offered was unreasonable. The Divisional Court upheld the Tribunal's decision.
In addition, the Tribunal had found that the complainant's human rights complaint was filed for an improper purpose. On this basis, the Tribunal also ordered the Commission to pay substantial costs to Dofasco. The Commission argued that for it to be required to pay costs, there must also be Commission misconduct. The Court agreed with the Tribunal that Commission misconduct was not a pre-condition for an award of costs.
The Tribunal also dismissed one part of the complaint as an abuse of process for the Commission's delay in adding it as a ground to the complaint. The Commission was not successful in having this finding overturned on appeal.