Directing mind employee: This refers to managers, decision-makers and supervisors in an organization who function, or are seen to function, as representatives of an organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for guiding employees and other workers.  

Discrimination:  Means any form of unequal treatment based on a Code ground that results in disadvantage, whether imposing extra burdens or denying benefits. It may be intentional or unintentional. It may involve direct actions that are discriminatory on their face, or it may involve rules, practices or procedures that appear neutral, but have the effect of disadvantaging certain groups of people. It may be obvious, or it may occur in very subtle ways. Discrimination needs only to be one factor among many factors in a decision or action for a finding of discrimination to be made.

Discrimination because of association:  Discrimination or harassment because of a person’s association, relationship or dealings with a person protected by the Code. It includes actions taken against a person who has objected to discriminatory comments aimed at another group.

Harassment: means a course of comments or actions that are known, or ought reasonably to be known, to be unwelcome. It can involve words or actions that are known or should be known to be offensive, embarrassing, humiliating, demeaning or unwelcome, based on a ground of discrimination identified by this Policy.  Harassment during employment can happen based on any of the grounds of discrimination.

Personal harassment, such as workplace bullying, which is not based on a Code ground, is also covered under this Policy. 

Examples of harassment include:

• Epithets, remarks, jokes or innuendos related to an individual’s race, sex, disability, sexual orientation, creed, age, or any other ground
• Showing or circulating offensive pictures, graffiti or materials, whether in print form or using e-mail or other electronic means
• Singling out an individual for humiliating or demeaning “teasing” or jokes because they are a member of a protected group
• Comments ridiculing an individual because of characteristics, dress, etc. that are related to a ground of discrimination.

Even if a person does not clearly object to harassing behaviour, or if they appear to go along with it, do not assume they have agreed to this behaviour. It could still be considered harassment.

Hate activity: comments or actions against a person or group motivated by bias, prejudice or hate based on race, ancestry, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, marital status, family status, sexual orientation or any other similar factor. It includes, but is not limited to, hate crime, hate propaganda, advocating genocide, telephone/electronic communications promoting hate, and the display of hate through any notice, sign, symbol or emblem.  

Organizational responsibility and vicarious liability: Under section 46.3(1) of the Code, a corporation, trade union or occupational association, unincorporated association, or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents during their employment. In other words, an organization is responsible for discrimination that occurs through the acts of its employees or agents, done in the normal course of employment, whether or not it had any knowledge of, participation in, or control over these actions.

Poisoned environment: negative, hostile or unpleasant workplace or an unequal work environment due to comments or conduct that tend to demean a group identified by one or more prohibited grounds under the Human Rights Code, even if not directed at a specific individual. A poisoned work environment may result from a serious and single event, remark or action.

Sexual harassment: A course of comment or conduct based on an individual’s sex or gender that is known or ought reasonably to be known to be unwelcome.

Gender-based harassment is a subset of sexual harassment. It refers to behaviour that polices and reinforces traditional heterosexual gender norms.

Forms of sexual and gender-based harassment could include:

• Gender-related comments about a person’s physical characteristics or mannerisms
• Paternalistic comment or conduct based on gender, which undermines a person’s self-respect or position of responsibility
• Unwelcome physical contact
• Suggestive or offensive remarks or innuendoes about members of a specific gender
• Propositions of physical intimacy
• Gender-related verbal abuse, threats or taunting
• Leering or inappropriate staring
• Bragging about sexual prowess or questions or discussions about sexual activities
• Offensive jokes or comments of a sexual nature about an employee or client
• Rough and vulgar humour or language related to gender
• Display of sexually offensive pictures, graffiti or other materials, including through electronic means
• Demands for dates or sexual favours.

Sexual Solicitation and reprisal: Sexually related solicitations or advances by any person who is in a position to grant or deny a benefit to the recipient, where this is known or ought reasonably to be known to be unwelcome. This includes managers and supervisors, as well as co-workers where one person is in a position to grant or deny a benefit to the other. Reprisals for rejecting such advances or solicitations are also prohibited.

Systemic or institutional discrimination: Consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and that create or perpetuate a position of relative disadvantage for persons protected by the Code. They appear neutral on the surface, but have an exclusionary impact on persons identified by a Code ground. They can also overlap with types of discrimination that are not neutral, such as prejudice and stereotypes. Systemic discrimination may be identified by looking at:

• Discrepancies in numerical data
• Policies, practices and decision-making processes
• Organizational culture

Effective efforts to address systemic discrimination usually target changes to policies, practices, decision-making processes and organizational culture by gathering relevant data and using multi-faceted organizational change interventions.

Workplace restoration: promoting and/or restoring positive and respectful workplace relationships following a complaint of discrimination or harassment.

Requests for accommodation by a member of the public

Requests for accommodation by a member of the public should be made to the Commission employee who is the normal point of contact. For example, a person requesting accommodation regarding a public communications event could initially make the request to the communications officer. Any Commission employee who receives a request for accommodation is required to bring this request to the attention of his or her Manager or Director.  Alternatively, members of the public may bring requests for accommodation straight to the manager of the responsible branch.

Upon receipt of a request for accommodation from a member of the public, the Manager, assessing the request must:

• Normally accept the request for accommodation in good faith
• Obtain advice where needed (for example from the Executive Director)
• Seek additional information where necessary
• Grant approved accommodation requests in a timely manner
• Keep a record of the accommodation request and accommodation given
• Maintain confidentiality of the information to the extent possible

Requests for accommodation by an employee

Employees and other workers and management are expected to work cooperatively to facilitate the accommodation process.

Requests for accommodation by an employee should be made to the employee’s manager. Requests for accommodation by a Commissioner should be made to the Chief Commissioner.

Accommodation requests should, whenever possible, be made in writing. The accommodation request should indicate:

• The Code ground with respect to which accommodation is being requested
• The accommodation need related to the Code ground, including enough information to facilitate the accommodation and/or confirm the existence of a need for accommodation

All accommodation requests will be taken seriously and dealt with in a timely manner. The Commission expects that the Executive Director, managers, supervisors, directors and other workers will fulfill their respective responsibilities as are set out in more detail in the Employment Accommodation and Return to Work Operating Policy. These roles and responsibilities are appended to this Policy as Appendix F.

No person will be penalized for making an accommodation request.

Provision of information for accommodation

The Manager or Director may require further information related to the accommodation request, in the following circumstances:

• Where the accommodation request does not clearly indicate a need related to a Code ground
• Where further information related to the employee’s limitations or restrictions is required in order to determine an appropriate accommodation
• Where there is a demonstrable objective reason to question the legitimacy of the person’s request for accommodation

Where expert assistance is necessary to identify accommodation needs or potential solutions, the accommodation seeker is required to cooperate in obtaining that expert advice. Any costs associated with obtaining such expert advice will be borne by the Commission.

Failure to respond to such requests for information may delay the provision of accommodation.

The Manager or Director will maintain information related to:

• The accommodation request;
• Any documentation provided by the accommodation seeker or by experts;
• Status of the accommodation request
• Related notes from the accommodation seeker’s personnel file
• Any accommodation alternatives explored; and
• Any accommodations provided.

Where the accommodation seeker requests it, the manager or director will provide the above information within five working days.

Privacy and confidentiality related to accommodation

The organization will maintain the confidentiality of information related to an accommodation request, and will only disclose this information with the accommodation seeker. Health and disability-related information will only be shared outside the OPS with the accommodation seeker’s specific written consent, except where required by law. Medical information will be kept separate from the person’s corporate file.

Accommodation planning

Accommodation requests will be dealt with promptly. Where necessary, interim accommodation measures will be provided while long-term solutions are developed.

The Manager or Director, the person requesting accommodation related to a Code ground and any necessary experts will work together cooperatively to develop an Accommodation Plan for the individual.

The Accommodation Plan will be put in writing and signed by the individual requesting accommodation and the Manager or Director.

An Accommodation Plan may include the following:

• A statement of the accommodation seeker’s relevant limitations and needs, including any necessary assessments and information from experts or specialists, bearing in mind the need to maintain the confidentiality of medical reports
• Arrangements for necessary assessments by experts or professionals;
• Identification of the most appropriate accommodation short of undue hardship
• A statement of goals, and specific steps to be taken to meet them
• Clear timelines for the provision of identified accommodations
• Criteria for determining the success of the accommodation plan, together with a mechanism for review and re-assessment of the accommodation plan as necessary
• An accountability mechanism

Appropriate accommodations

The aim of accommodation is to remove barriers and ensure equality. Accommodations will be developed on an individualized basis. An accommodation is considered appropriate when it respects the employee’s dignity, responds to their individualized needs, and allows for full integration and inclusion in the workplace. Appropriate accommodations for employees and other workers where warranted may include:

• Work station adjustments
• Job redesign
• Modifications to organizational policies and practices
• Technical aids
• Human support
• Provision of materials in alternative formats
• Building modifications
• Counselling and referral services
• Temporary or permanent alternative work^[1]
• Modification of performance standards, while retaining core job requirements
• Leaves of absence
• Changes to scheduling or hours of work

Appropriate accommodations for members of the public may include:

• Information in alternative formats
• Access to language interpretation
• Extensions to deadlines

In considering accommodation for members of the public with disabilities, the Commission will adhere to standards set under the AODA.

In addition to the above lists, there may be other types of accommodation available.

Monitoring accommodations

The Manager or Director and the person receiving accommodation shall monitor the success of the Accommodation Plan, and shall promptly address any deficiencies or any relevant changes in the organization or the needs of the employee or member of the public.

Undue hardship

Accommodation will be provided to the point of undue hardship. A determination regarding undue hardship will be based on an assessment of costs, outside sources of funding, and health and safety. It will be based on objective evidence.  An analysis of what constitutes undue hardship is different from an analysis of appropriate accommodation.

A determination that an accommodation will create undue hardship may only be made by the Commission’s Executive Director in consultation with the Senior Management Committee. 

Where a determination is made that an accommodation would create undue hardship, the person requesting accommodation will be given written notice, including the reasons for the decision and the objective evidence relied upon within 90 days of determination being made. The accommodation seeker shall be informed of his or her recourse under this Policy, the applicable collective agreement, and under the Ontario Human Rights Code.

Where a determination has been made that an accommodation would cause undue hardship, the Commission will proceed to implement the next best accommodation short of undue hardship, or will consider phasing in the requested accommodation. 

For more information on accommodation and return-to-work procedures, please see the Employment Accommodation and Return to Work Operating Policy.

^[1] Salary adjustments may apply if temporary or alternative work is provided.

An employment-related complaint under this Policy will be handled according to the procedures set out in the WDHP, which are reflected in this section.

Access to information and advice

Employees, Commissioners and other workers can access information and seek advice under this Policy and the WDHP in the following ways:

1. Through contacting the OPS Employee Assistance Program (EAP).  EAP staff can provide confidential advice and information about human rights and WDHP-related matters.
2. By accessing the MYOPS Wellness Portal under Employee Services.  The Wellness Portal includes access to the WDHP and training on the WDHP.
3. By contacting the appropriate WDHP office. The WDHP advisor will provide neutral and expert advice to any person concerned about discrimination or harassment within the organization. The advisor will not act as an advocate for any person and will not provide legal advice. Any advice they provide is not confidential. The WDHP office will also accept human rights complaints and start the complaint resolution process. The WDHP advisor, upon becoming aware of an alleged breach of this Policy, must take appropriate action by informing a manager.
   The appropriate WDHP advisor for the Commission can be reached at [Provide contact details]:
4. Through contacting a manager, director or the Executive Director. Management has limits on confidentiality and must report alleged violations or potential violations of this Policy to the appropriate WDHP office and seek to resolve these situations.
5. Human rights advice can also be obtained through contacting the Human Rights Legal Support Centre (www.hrlsc.on.ca) and union representatives, where applicable.

Addressing Discrimination or Harassment Concerns

If a person believes his or her right to be free from discrimination or harassment is being or has been infringed, he or she is encouraged, where possible, to attempt to make it known that the alleged behaviour is unwelcome. 

If the situation cannot be resolved by speaking to the person responsible, or such recourse is not available or not appropriate, employees and other workers are encouraged to quickly notify the first level of management not involved in the complaint, or the appropriate WDHP office, about alleged violations of this Policy. The first level of management not involved in the complaint, or the WDHP advisor may contact the managers or employers of other workers regarding alleged violations of this Policy.

Representation

During the complaint resolution processes related to this Policy, complainants and respondents have the right to be accompanied by another person, bargaining agent representative where applicable, or legal representative at their own expense.  

Documentation

Every person who believes that he or she has experienced harassment or discrimination, as well as every person who has been notified of a complaint against them, is advised to create and keep written notes about the events at issue, as well as maintaining any relevant written documentation.

Management Response

Managers must act immediately upon becoming aware of potential Policy violations by:  

• intervening to stop unacceptable behaviour
• contacting the WDHP office for advice and assistance, and to initiate the completion of a preliminary assessment
• notifying the Executive Director of the complaint
• taking action to protect complainants who raise allegations or file complaints of discrimination or harassment
• facilitating the resolution of issues that arise by implementing appropriate and timely resolution mechanisms as described below
• taking appropriate and timely remedial or disciplinary action to resolve the issue, when applicable.

Managers must make staff available at the earliest opportunity to participate in investigations and other complaint resolution mechanisms.

Senior management must notify police and consult legal services, as required, when information is brought forward about discrimination or harassment that may constitute criminal behaviour.

Managers must declare any potential conflict of interest in relation to an alleged violation of this Policy when they are, or may be perceived to be, either condoning or directly involved with an alleged violation. In such a case, the next level of management not involved in the complaint must assume responsibilities associated with a resolution.

When appropriate, management of another area, including another branch, ministry or Commission public body, may be asked to assume responsibilities associated with a resolution.

During the resolution of discrimination or harassment issues, management must determine, in consultation with the Executive Director, WDHP office and other human resource representatives where appropriate, whether a complainant or respondent should be placed on a paid or unpaid leave, relocated within the Commission, another ministry or Commission public body, provided with an alternate reporting relationship, or whether other similar and appropriate action should be taken.

Filing a Discrimination or Harassment Complaint

The WDHP advisor and managers are required to act on allegations of violations of this Policy, regardless of whether a written complaint has been filed. However, complaints under this Policy should be filed in writing, within six months of the alleged discrimination or harassment incident, and submitted to the next level manager not involved in the alleged incident or conduct, or the appropriate WDHP office.

The following details must be included in the written complaint:

• name(s) of the complainant, respondent and witness (if any)
• date(s) and location(s) of the alleged incident or conduct
• alleged Policy violation including the identification of prohibited ground(s) under the Code, if applicable
• names of witnesses, if any
• description of the event or situation giving rise to the complaint
• description of other proceedings underway
• resolution sought.

The person receiving the complaint will notify the person(s) complained against (“the respondent(s)”) and will provide the respondent(s) with a copy of the written complaint. Complainants can use the WDHP complaint form to file their complaint, or they can write up their complaint using the points above. A copy of the WDHP complaint form and instructions on how to fill it out are included in Appendix G. 

Managers who are responsible for the work area referred to in the complaint must exercise authority to appropriately enforce the Policy and manage the work environment when a complaint has been filed.

Preliminary Assessment

A preliminary assessment must be completed by the WDHP advisor  (or where applicable, the next level manager not involved in the complaint) within 15 working days of a complaint being filed or being advised of issues or allegations related to this Policy. Every effort must be made to complete the preliminary assessment as quickly as possible.             

WDHP advisors must recommend a resolution mechanism or other appropriate actions to the manager based on the results of the preliminary assessment. Resolution mechanisms include:

• direct management action
• alternate dispute resolution (ADR)
• investigation.

Managers must determine which resolution mechanism to pursue or another appropriate course of action, taking into consideration the advice of the WDHP advisor. After a resolution mechanism has been chosen, the manager responsible for handling the complaint has discretion regarding appointing an appropriate investigator or mediator, taking into consideration OPS procurement rules. Managers could choose to address the complaint themselves through direct management action, ADR or investigation. 

Appropriate steps will be taken to ensure the safety and/or peace of mind of the complainant and the respondent pending completion of the complaint process. Such steps will be made on a case-by-case basis having regard to the principle that, where it was made in good faith, the complainant will not be penalized for making the complaint, Similarly, the respondent will not be penalized prior to the completion of an investigation, or prior to having an opportunity to respond to the allegations.

Resolution Mechanisms

A chart outlining the complaint process under the WDHP is contained in Appendix H.

Direct Management Action

When direct management action is determined by the responsible manager to be the appropriate resolution mechanism, taking into account the advice of the WDHP advisor, he or she must attempt to resolve the complaint or issue through appropriate action within 30 working days of the completion of the preliminary assessment. Direct management action may include remedial or disciplinary action according to applicable collective agreement requirements or discipline policy requirements.

Respondents must be given the opportunity to respond to allegations before remedial or disciplinary action is taken.

Alternate Dispute Resolution   

Alternative dispute resolution (ADR) is often a preferable approach to addressing human rights disputes.  Approaches like formal mediation are known to be effective methods to address internal human rights matters and allow for the identification and negotiation of mutually beneficial outcomes. When the manager determines that ADR is the appropriate resolution mechanism as a result of the preliminary assessment, he or she must seek the agreement of the complainant and the respondent within five working days of the completion of the preliminary assessment.

ADR must only proceed with the expressed agreement of the complainant, respondent and manager responsible for addressing the complaint. A case must be assigned to an ADR resource (e.g. a mediator) within 15 working days of the parties agreeing to pursue ADR.

ADR must be completed within 30 working days of the assignment of a complaint to an ADR resource.

Persons conducting ADR must be knowledgeable about:

• Human rights issues and principles  
• The requirements of the Code
• The requirements of the applicable collective agreement
• This Policy and Complaint Resolution Procedure and the WDHP
• Methods for conducting mediations

When ADR is not effective or appropriate, the manager must initiate an investigation or take direct management action to resolve the complaint.

Depending on the circumstances of the case, even when ADR effectively resolves an issue between the parties, the manager may still initiate an investigation or engage in direct management action, for example, if discipline is warranted. 

Where the manager agrees, the parties may negotiate a solution by themselves without a manager or mediator present.

Investigation

Full and complete cooperation in the investigation of workplace discrimination or harassment is required by Commission staff when an internal or external investigation is determined by management to be the appropriate resolution mechanism as a result of the preliminary assessment.

Management must assign an investigation to an internal resource or external investigator within 15 working days of deciding that a complaint will be investigated. In deciding whether an internal or external investigation should be completed, management will consider the complexity of the matter, the nature of the allegations, the ability to be objective given the personnel involved, and any concerns about impartiality and objectivity that may be expressed. 

Where the parties agree, managers may choose to suspend an active investigation in favour of alternate dispute resolution, if appropriate.

The investigator is responsible for ensuring a thorough, fair and impartial investigation of the allegations in the complaint.  Persons conducting investigations must be knowledgeable about:

• Human rights issues and principles  
• The requirements of the Code
• The requirements of the applicable collective agreement
• This Policy and Complaint Resolution Procedure and the WDHP
• Methods for conducting investigations

Investigation Process

The investigator will interview the complainant, the respondent(s), and relevant witnesses suggested by the complainant and/or respondent(s), as well as gathering documents or things relevant to the matters in the complaint. 

The investigation will be conducted as follows:

• Complainants, respondents and witnesses will have access to statements they have provided
• Respondents and complainants must have access to all relevant information about the allegations and responses of other parties and witnesses to enable them to make a defence or a rebuttal
• All information must remain strictly confidential, except when sharing information required by Collective Agreement provisions or by law (e.g. possible Criminal Code violations). Personal information will only be used when administering this Policy, processing complaints, determining the appropriate means to either address, manage or resolve Policy violations, including appropriate disciplinary and other remedial actions, or for a consistent or related purpose.
• There must be no reference to a complaint under this Policy in an employee’s personnel file, unless disciplinary action was taken against the employee
• Parties may not share any summary of findings or investigation reports with anyone other than the person who accompanied them to complaint-related meetings and/or their representative.

Internal Investigation

An internal investigation must be completed within 60 working days of assigning a complaint to an internal resource, unless there are extenuating circumstances.

The manager responsible for deciding discipline resulting from internal investigations must decide on appropriate remedies, and notify the parties of the outcome of the internal investigation within 15 working days of the completion of the investigation.

If requested by the parties, a short summary of the findings of the internal investigation (e.g. background, positions of the parties, findings and conclusion) will be shared with the parties so they can make submissions to the manager for final decision before remedies are considered.  Submissions must be made within the investigation timeframe.

External Investigation

An external investigation must be completed, and a final report submitted, within 90 working days of assigning a complaint to an external investigator, unless there are extenuating circumstances. The WDHP advisor will review the report to ensure that the findings are complete and can withstand third-party scrutiny. The responsible manager and/or applicable WDHP advisor must submit the final report to the Executive Director.

Before a final report resulting from an external investigation is submitted to the Executive Director for review, a copy of a draft investigation report must be provided to the parties (complainant and respondent) so they can comment on the accuracy and the completeness of facts and allow them to make submissions before remedies are considered.

The Executive Director, or his or her delegate, must decide on appropriate remedies and notify parties of the outcome, where authorized, within 30 working days of receiving the final report. Where the Executive Director is not authorized to decide on a particular remedy, an authorized individual for the Commission must decide on the appropriate remedy and notify parties of the outcome within 30 working days of receiving the final report.

Appointing people to handle complaints

When determining whether to appoint advisors, mediators, investigators, designates or decision-makers that are external or internal to the Commission, managers and the Executive Director will consider the following factors:

• Any conflicts of interest that may exist
• Whether issues of trust in the process are evident
• Whether required expertise exists internally
• The OPS procurement procedures, where applicable 

Potential outcomes

If it is determined that the Policy has been violated, the manager shall determine the appropriate consequences for person(s) who have been found to have violated the Policy. These may include:

• An apology
• Counselling
• Education and training
• Verbal or written reprimand
• Suspension with pay
• Suspension without pay
• Transfer
• Termination of employment

In determining the appropriate consequences, management shall take into account all the relevant factors including the nature of the violation of the Policy, its severity, whether the individual has previously violated the Policy, and the provisions of any applicable collective agreement. Management will then notify the parties of the outcome.

Where a complainant is dissatisfied with the outcome of the complaint, he or she shall be reminded of his or her right under the Ontario Human Rights Code to file an application with the Human Rights Tribunal of Ontario. 

Workplace Restoration

Managers must take appropriate steps to improve and/or restore work environments and work relationships affected by incidents or allegations of discrimination or harassment by employing workplace restoration strategies.

Managers must review workplaces in which there were findings of discrimination or harassment at least six months after the conclusion of the complaint resolution process to determine whether additional workplace restoration strategies should be engaged.

Confidentiality and privacy

Managers, directors, designates, advisors, investigators, mediators, and persons making complaints and persons receiving complaints will, to the extent possible, protect the confidentiality and privacy of persons involved in a complaint, subject to the requirements of a fair investigation and resolution process.

All documents related to a complaint, including the written complaint, witness statements, investigation notes and reports, and documents related to the complaint, will be securely maintained by the Chief Administrative Officer or Executive Director separate from personnel files after the conclusion of the complaint resolution process. 

Personal information must only be collected, used or disclosed when the collection, use or disclosure is necessary to administer this Policy. Personal information must be collected, used or disclosed in accordance with applicable policies or guidelines.

There must be no reference to a complaint under this Policy in an employee’s human resource file unless disciplinary action was taken against the employee. When disciplinary action has been taken, retention of information in the employee’s human resource file is subject to the applicable collective agreement or Archives Ontario retention schedules.

Complaints against the Executive Director

All complaints against the Executive Director will be forwarded to the Deputy Attorney General with the request that this Policy along with the applicable corporate OPS policies be employed to handle the complaint.

Complainants not satisfied with this process or its outcomes will be directed to alternative processes available under the applicable collective agreement or under the Code.

Complaints against Commissioners

All complaints against Commissioners can be made with the Executive Director or with  the appropriate WDHP advisor. The Executive Director will endeavour to handle the matter employing procedures detailed in this Policy. Where the Executive Director is not satisfied that a procedure under the WDHP can be successfully applied he/she will recommend the complainant file an application with the Human Rights Tribunal of Ontario.

Complainants not satisfied with this process or its outcomes will be directed to alternative processes available under the applicable collective agreement or under the Code.

Commissioners’ Complaints

Commissioners can make complaints to the Chief Commissioner.  The Chief Commission may delegate complaint handling responsibilities to the Executive Director.  Where the Chief Commissioner or Executive Director are not satisfied that a procedure under the WDHP can be successfully applied he/she will recommend the complainant file an application with the Tribunal.

Measurement and Review

The Commission will collect and maintain statistics and program measures on workplace discrimination and harassment and prevention activity, and report this information to the WDHP Section, Centre for Employee Health, Safety and Wellness (CEHSW) on a quarterly basis.

People receiving service from the Commission and members of the public can file Human Rights Code-related complaints against Commission staff or Commissioners through the following process. Complaints that are not related to discrimination or harassment should be filed under the Ontario Human Rights Commission’s Public Complaints Policy, available on the Commission website at www.ohrc.on.ca.

Members of the public can access information about their human rights by contacting the Human Rights Legal Support Centre:  

Human Rights Legal Support Centre
180 Dundas Street West, 8th Floor
Toronto, Ontario M7A 0A1

Tel: (416) 314-6266
Toll Free: 1-866-625-5179
TTY: (416) 314-6651
TTY Toll Free: 1-866 612-8627

Fax: 1-866-625-5180 or 416-314-6202
www.hrlsc.on.ca

Addressing Discrimination or Harassment Concerns

If a person believes his or her right to be free from discrimination or harassment is being or has been infringed by Commission staff or a Commissioner, he or she is encouraged, where possible, to attempt to make it known that the alleged behaviour is unwelcome. 

Documentation

Every person who believes that he or she has experienced harassment or discrimination, as well as every person who has been notified of a complaint against them, is advised to create and keep written notes about the events at issue, as well as maintaining any relevant written documentation.

Filing a Discrimination or Harassment Complaint

If the situation cannot be resolved by speaking to the staff person or Commissioner responsible, or this type of action is not available or not appropriate, members of the public are encouraged to fill out a complaint form (included in Appendix I) and send it to the Executive Director’s office.  The following details must be included in the written complaint:

• name(s) of the complainant, contact details
• Names of staff members(s) or Commissioner(s) complained about
• Names of witness (if any)
• date(s) and location(s) of the alleged incident or conduct
• alleged Human Rights Code violation including the identification of prohibited ground(s) under the Code, if applicable
• description of the event or situation giving rise to the complaint
• description of other complaint proceedings underway (E.g. proceedings at the Human Rights Tribunal of Ontario) 
• resolution sought

If people need help writing the complaint, they should call the Executive Director’s Office at 416-314-4562.  Complaints must be signed and dated by the person making the complaint. If the complaint is from an organization, a signing officer representing the organization must sign and date the form. The written complaint must be received within six months of the last incident of discrimination or harassment.

Confidentiality and Privacy

Confidentiality of any client affected by a complaint under this policy shall be maintained, unless the client expressly consents otherwise.  Complainants will be asked to submit all relevant documents to the Executive Director to allow her or her designate to respond to the complaint and agree to allow the Commission to disclose these documents to people handling the complaint (e.g. mediators, investigators).

All documents related to a complaint, including the written complaint, witness statements, investigation notes and reports, and documents related to the complaint, will be securely maintained by the Chief Administrative Officer or Executive Director separate from employee personnel files after the conclusion of the complaint resolution process. 

Personal information must only be collected, used or disclosed when the collection, use or disclosure is necessary to administer this Policy. Personal information must be collected, used or disclosed in accordance with applicable policies or guidelines.

There must be no reference to a complaint under this Policy in an employee’s human resource file unless disciplinary action was taken against the employee. When disciplinary action has been taken, retention of information in the employee’s human resource file is subject to the applicable collective agreement or Archives Ontario retention schedules.

Representation

During the complaint resolution processes related to this Policy, complainants and respondents have the right to be accompanied by another person or legal representative at their own expense. 

Complaint Handling

All service complaints will be handled by the Executive Director’s office. The Executive Director or her designate will send the complainant a letter stating that the complaint has been received within three days of receiving the complaint. The letter will acknowledge receipt of the complaint and may ask for more information.

A copy of the complaint will be given to the staff member or Commissioner for a response.  

The Executive Director or her designate will try to resolve the complaint and may use a number of different methods, including alternate dispute resolution (ADR or mediation), investigation, or direct action. Where ADR is an option, both complainant and respondent must expressly agree to ADR. Complainants are allowed to be accompanied by a representative to the mediation.

Timeframes

The Executive Director will attempt to resolve the complaint within the following timeframes:

Direct management action timeframe: 45 working days

• 15 working days to decide on a resolution method
• 30 working days to resolve the complaint

Alternate Dispute resolution (mediation) timeframe: 65 working days  

• 15 working days to decide on a resolution method
• 5 working days to obtain permission from the parties to mediate
• 15 working days to assign a mediator
• 30 working days to complete the mediation

Investigation: 105-135 days  

• 15 working days to decide on a resolution method
• 15 working days to hire or appoint an investigator
• 60-90 working days to complete the investigation
• 15 working days to notify the parties of the findings and receive submissions

If a case is complex, this may delay the resolution.

At any time during the resolution process, complainants have the right to file an application at the Human Rights Tribunal of Ontario.

Appointing people to handle complaints

When determining whether to appoint advisors, mediators, investigators, designates or decision-makers that are external or internal to the Commission, the Executive Director will consider the following factors:

• Any perceived bias that may exist
• Any conflicts of interest that may exist
• Whether issues of trust in the process or power imbalances are evident
• The OPS procurement procedures, where applicable 

Report of Findings

In cases that are investigated, the Executive Director or her representative will send complainants a written decision, including reasons, within 15 business days from the date of completing the investigation.  Complainants will be given a chance to respond to the findings.

If complainants are satisfied with the Executive Director’s decision, the complaint will be closed. If the complainant is not satisfied with the decision, they can apply to the Human Rights Tribunal of Ontario.

Complaints about Executive Director

Complaints about the Executive Director should be sent to the Deputy Attorney General, Ministry of the Attorney General.

Complainants not satisfied with this process or its outcomes will be directed to alternative processes available under the applicable collective agreement or under the Code.

Employees and other workers (including Commissioners)

Employees and other workers are responsible for:

• Refraining from discrimination and harassment, including offensive remarks or other actions that create intimidating, hostile or humiliating working conditions based on the prohibited grounds of this Policy   
• Adhering to this Policy, the WDHP and related ministry processes
• complying with obligations under the Code, the OHSA and regulations, other relevant legislation, this Policy, the WDHP and other policies, programs and procedures that support an inclusive, respectful workplace free from discrimination and harassment
• participating in education and awareness programs related to this Policy and the WDHP
• When possible, telling alleged offenders about unwelcome conduct or actions perceived to be harassing or discriminatory, and asking the respondent to stop
• reporting alleged Policy violations they have witnessed or experienced to a manager or the appropriate WDHP advisor
• raising complaints under this Policy within six months of the alleged incident unless there are compelling and extenuating circumstances
• following the complaint filing protocols outlined under this Policy, and advising the responsible manager of related proceedings (e.g. a Tribunal application)  
• cooperating fully and completely in the investigation of workplace discrimination or harassment
• not threatening or retaliating against another employee or worker for exercising a right under this Policy
• exercising rights under this Policy in good faith
• meeting performance commitments associated with workplace discrimination and harassment prevention.

Managers, directors and supervisors

Managers, directors and supervisors are responsible for:

• complying with obligations under the Code, the OHSA and regulations, other relevant legislation, this Policy, the WDHP and other policies, programs and procedures that support an inclusive, respectful workplace free from discrimination and harassment
• Ensuring all employees and other workers know that discrimination and harassment will not be tolerated
• Ensuring that all employees and other workers know their rights and responsibilities under this Policy, including ways in which allegations of discrimination and harassment can be resolved
• Managing the process for resolving allegations of discrimination, harassment or other Policy violations as soon as they become aware of them, whether or not a complaint has been written; consulting with the WDHP advisor within the timeframes stated in the Policy;
• Advising employees and other workers not to threaten or retaliate against any complaint, respondent or witness to a complaint
• declaring any potential conflict of interest in relation to an alleged violation of this Policy when he or she may be perceived to be either condoning or directly involved with an alleged violation
• Cooperating with investigators and alternate dispute resolution service providers, such as ensuring availability of witnesses and the confidentiality of information
• Restoring or improving workplace relationships when either Policy violations or resolutions have disrupted these relationships
• Maintaining and providing statistical information on this Policy and the WDHP to the Executive Director through appropriate channels.
• participating in mandatory education and/or training as outlined in this Policy and the WDHP
• ensuring this Policy is posted in a conspicuous place in the workplace
• When appropriate, advising members of the public, including visitors to OPS facilities or individuals conducting business with the government that they are expected to refrain from discrimination or harassment of employees, other workers and members of the public.
• monitoring and maintaining awareness of potential discrimination or harassment issues in the workplace and taking proactive steps to prevent or address these issues
• not threatening or retaliating against an employee or other worker for exercising a right under this Policy
• meeting performance commitments associated with workplace discrimination and harassment prevention

The Commission Public Body Designated Official (Executive Director)

The Executive Director is responsible for:

• Providing leadership in creating and maintaining a workplace free of discrimination and harassment
• integrating discrimination and harassment prevention responsibilities in performance criteria for managers and employees and other workers, and holding accountable managers and others responsible for implementing this Policy
• Ensuring that managers responsible for implementing this Policy have the appropriate knowledge, skills, processes and resources
• Ensuring that employees and other workers are informed of rights and responsibilities under this Policy
• Deciding on cases and appropriate remedies including discipline, when assigned
• Ensuring that remedies to violations of this Policy will create or restore a workplace which is free of discrimination and harassment
• Handling complaints made against Commissioners
• Monitoring (e.g. time frames noted under mandatory requirements)
• Receiving and reviewing reports arising from external investigations
• Ensuring effective implementation of settlements, remedies and corrective actions
• Informing the Chair of the Policy breach and remedy applied, where appropriate  
• Ensuring that appropriate statistics are kept about violations under the WDHP and submitted quarterly to the CEHSW
• Ensuring that duties designated by the Chief Commissioner and Commission are carried out, including:
  integrating discrimination and harassment prevention strategies into the Commission’s business plans by:
  - allocating funds and human resources to address local discrimination and harassment issues 
  - developing strategies and priorities for discrimination and harassment prevention programs if appropriate 
  - evaluating and reporting on the effectiveness of the Commission’s discrimination and harassment prevention programs to HROntario, where applicable   

​Within HROntario, MGS the Centre for Employee Health, Safety and Wellness is responsible for:

• providing discrimination and harassment complaint resolution and workplace restoration advisory services for all ministries except the Ministry of Community Safety and Correctional Services (MCSCS)
• leading the development of training and education programs for preventing and responding effectively to workplace discrimination and harassment issues
• supporting managers, employees and other workers where applicable through centralized case management
• providing advice and assistance to managers and human resource advisors in handling discrimination or harassment complaints
• leading the preliminary assessment of complaints in collaboration with managers and recommending appropriate resolution strategies and remedies
• providing advice and support to all parties (complainant, respondent witness, decision-maker, etc.) throughout the complaint resolution and workplace restoration process by answering questions, providing information on process and where to find appropriate resources
• managing applicable vendor of record agreements and providing orientation to vendors on the application of this policy
• overseeing investigations and reviewing draft WDHP investigation reports to ensure findings and conclusions are based on collected evidence and can withstand third-party scrutiny
• monitoring WDHP compliance by producing metrics and reports for senior management and providing quarterly reports to deputy ministers on complaints that are not resolved within nine months of the filing date.

Chair of the Commission Public Body (Chief Commissioner)

Key responsibilities of the Chief Commissioner include:

• providing leadership in fostering and sustaining inclusive, diverse, equitable, accessible and respectful workplaces free from discrimination and harassment through compliance with the Code, the OHSA and its regulations, other relevant legislation, this Policy, the WDHP, and other policies, programs and procedures
• Applying this policy and related policies and programs
• Ensuring that the approved business case integrates discrimination and harassment prevention strategies in the Commission’s business plan
• Involving HROntario in Commission-based initiatives that may have public service-wide implications for managing discrimination and harassment issues
• delegating appropriate authorities and responsibilities under this Policy

HROntario, Ministry of Government Services (MGS)

HROntario, Ministry of Government Services (MGS) is responsible for:

• conducting the annual review of the WDHP
• ongoing monitoring of compliance with the WDHP and establishing reporting requirements
• developing and communicating corporate discrimination and harassment prevention policies, programs, guidelines, training and performance measurement tools to assist ministries in addressing discrimination and harassment issues
• interpreting the WDHP and providing expertise, advice, guidance, instructional materials and information to ministries and Commission public bodies on discrimination and harassment prevention programs, and the interpretation and application of relevant legislation, corporate policies and programs recommending WDHP improvements to Management Board of Cabinet, as appropriate coordinating the management of discrimination and harassment prevention issues that have enterprise-wide significance liaising with bargaining agents, as appropriate, on discrimination and harassment issues with enterprise-wide significance.

As set out in the Employment Accommodation and Return to Work Operating Policy (EARW)

Deputy Heads (Executive Director)  

Deputy heads are responsible for:

• Providing leadership in creating and maintain workplaces that support and facilitate employment accommodation and return to work;
• Ensuring that mangers implement this Policy and the EARW Policy ;
• Ensuring that managers and supervisors receive training in fulfilling the government’s obligations with respect to accessibility in employment, pursuant to the Ontarians with Disabilities Act, 2001;
• Ensuring that managers and others responsible for implementing this Policy have the appropriate knowledge, skills, processes and resources;
• Ensuring that all employees are provided information about the right and obligations of the government with respect to accessibility in employment, pursuant to the Ontarians with Disabilities Act, 2001;
• Reviewing ministry practices, to ensure that employment barriers to people with disabilities are prevented where possible, or identified and removed, in accordance with the Ontarians with Disabilities Act, 2001, and the Human Rights Code;
• Ensuring that the ministry does not request an OPS-wide health reassignment unless the ministry reviewed and considered internal alternatives available at the time;
• Ensuring that the ministry accepts health reassigned from other ministries, as long as the employee is minimally qualified and his/her accommodation needs can be met, short of undue hardship.

Managers

• Safeguarding confidentiality of employees’ health information
• Ensuring that all job applicants are made aware of the availability of employment accommodation during recruitment process, and are provided accommodations, short of undue hardship, when they request it; and
• Providing and paying for documents prepared by their work units, in alternate formats, that OPS employees with disabilities may use.

Managing specific employment accommodation of return-to-work situations:

• Working cooperatively with employees (and their representatives, where necessary) to develop accommodation and return-to-work plans;
• Obtain information and assistance, as appropriate and with the employee’s consent, about:
  - The employee’s capabilities/limitations/needs-from the employee and if appropriate, medical practitioners, LTIP carriers, the Workplace Safety and Insurance Board (WSIB), and/or other assessment specialists in health professions;
  - accommodation and return-to-work options- from the employee and if appropriate, rehabilitation professionals (including LTIP carriers, WSIB), external vendors and specialists, in employment accommodation, and/or internal staff in areas such as human resources, information technology and procurement;
• Consulting human resources staff and obtaining approval before implementing an accommodation that may be inconsistent with collective agreement provisions;
• Implementing and adhering to accommodation/return-to-work plans.
• Documenting accommodation/return-to-work plans, including information about discussions held, options considered, reasons for acceptance or rejection of options, and actions taken;
• Paying for accommodation-related expenses, and requesting human resources staff to help arrange reimbursement of eligible expenses from the Employment Accommodation Fund for People with Disabilities, when appropriate;
• Ensuring that employees who are incapable of performing the essential duties of their home job, despite best efforts to accommodate them are:
  - advised of benefits entitlements in a timely manner;
  - only retained on salary to the extent of their eligibility to be paid;
  - put forward for reassignment to another position, when appropriate.

Monitoring and follow-up:

• Maintaining contact with employees who are absent from work because of injury or illness, to communicate concern for the employee’s health, obtain information about expected return-to-work date and anticipated accommodation needs, and prepare for his/her timely and safe return;
• Monitoring and revising accommodation/return-to-work plans in cooperation with the employee to respond to changing employee and operational needs;
• Advising accommodated employees as early as possible about upcoming operational changes that may cause the employee to need new or different accommodation;
• Addressing co-worker cooperation issues throughout the employment accommodation process.

Employees

• Employees who need disability-related accommodation or are absent from work due to injury or illness are responsible for:
• Identifying to the manager as soon as possible any accommodation needs that relate to their ability to perform job duties or participate fully in the workplace;
• Cooperating with requests for health information about capabilities, limitations and prognosis, and with independent medical evaluation, when required, to provide clear and sufficient information to support employment accommodation or return to work;
• Collaborating with the manager in developing an employment accommodation and/or return-to-work plan;
• Accepting an accommodation/return-to-work solution that meets the employee’s accommodation needs and treats the employee with dignity, even if the solution is not necessarily the one the employee would have preferred;
• Adhering to the accommodation or return-to-work plan, monitoring how well it is working, and advising the manager promptly about any difficulties encountered;
• Advising the manager promptly of any changes in health/disability status that may require changes in an existing accommodation/return-to-work plan; and
• Completing required documentation where the employee is being considered for a reassignment for health/disability reasons (e.g., identify skills and competencies).

In addition, employees who are absent from work due to injury or illness, and who may not be able to return directly to their regular duties or working hours without accommodations, are responsible for:

• Maintaining ongoing communications with their managers on recovery progress, anticipated return to work date, potential employment accommodation needs, and work scheduling needs to accommodate treatment/rehabilitation. Information about anticipated return-to-work date and accommodation needs should be provided as early as possible in order to give the manager and employee time to prepare a return-to-work/ EA plan before the anticipate dated of return. If sufficient advance notice is not provided, it may not be possible for the manger to make accommodation arrangements in time for the employee to return on the anticipated date.

All employees are responsible for:

• Supporting the employment accommodation and return to work of other employees, including accepting some change in duties when necessary to accommodate a co-worker’s needs; and
• Treating with dignity and respect other employees who require accommodation and or are returning to work after an absence due to injury, illness or disability.

Human Resources

Human resources are responsible for:

• Providing advice and coaching to managers and supervisors about this Policy and its implementation; relevant legislation and collective agreements, and related benefits and entitlements, including LTIP and workplace Safety and Insurance Act (WSIA) entitlements;
• Seeking advice from subject matter experts, when necessary;
• Safeguarding confidentiality of employees’ health information;
• Carrying out ministry-level administrative responsibilities with respect to the Employment Accommodation Fund;
• Conducting timely searches for possible health reassignments within the ministry, when an employee cannot be accommodated in his/her own position;
• Working with MGS to help identify cross-ministry health reassignments available in their ministry;
• Assisting managers in assessing employee skills and competencies against the requirements of vacancies available in their ministry;
• Determining when the conditions for requesting an OPS-wide health reassignment exist, coordinating provision of required documentation, and representing the ministry on all related matters;
• Assisting managers with referrals and requests for assistance from external specialists, in relation to assessment of employee capabilities and needs; rehabilitation planning; and employment accommodations solutions.
• Consulting with the employee relations division (ERD) on any situation when a proposed accommodation solution would be inconsistent with collective agreement provisions and/or on the right of other represented employees, and either discussing the matter with the bargaining agent(s) concerned or allowing ERD to do so, as ERD determines; and
• Providing or arranging other related services, as determined by the ministry- e.g., education/information for managers and employees, resolution of disputes related to employment accommodation or return to work.

Ministry of government services

The Ministry of government services is responsible for:

• Maintaining and revising the EARW Policy and related guidance and tools;
• Providing advice to ministries about the interpretation and application of the EARW Policy, as well as related legislation, collective agreements and programs;
• Working with ministry HR branches to identify cross-ministry health reassignments;
• Developing, related OPS-wide performance measures, specifying any reporting requirements, and monitoring EARW Policy implementation;
• Reviewing OPS-wide human resources policies and practices to help prevent, and otherwise identify and remove any systemic barriers facing employees and job applicants with disabilities;
• Consulting with bargaining agents on a timely basis whenever a proposed accommodation would conflict with collective agreement provisions, or approving consultation at a ministry level;
• Providing advice on OPS-wide training with respect to the EARW Policy;
• Providing training content for manager that meets the government’s obligation under the Ontarians with Disabilities Act, 2001;
• Ensuring delivery of training for managers and supervisors that meets the government’s obligation under the Ontarians with Disabilities Act, 2001;
• Safeguarding confidentiality of employees’ health information
• Administering the OPS Employment Accommodation Fund for people with disabilities, which reimburses (funding permitted) eligible expenses related to employment accommodation for people with disabilities;
• Providing information and advice to employees and managers about OPS benefits entitlements related to work absences due to injury, illness or disability;
• Providing procurement advice and assistance that facilitates the timely procurement of goods and services required for accommodation, including the development and management of OPS-wide vendors of record (VORs) for EA and RTW-related service and expertise;
• Preventing and otherwise identifying and removing systemic information technology barriers to the productivity and full participation of employees with disabilities, where appropriate;
• Providing advice and assistance to managers and employees in accommodating the information technology-related needs of individual employees with disabilities; and
• Maintaining information technology and procurement policies that support and facilitate the productivity, full participation, and timely accommodation of employees with disabilities, where technology can be utilized to assist the employee to attain his/her maximum contribution and participation in the workplace.