Those Who Have Experienced Human Rights Violations Have Options
Individuals who feel that their human rights have been violated have options available to them, other than turning to the court to seek a remedy, says Barrie-area litigator Steve Rastin. "When people in Ontario talk about human rights, they are usually referring to the rights that are protected under the Ontario Human Rights Code (OHRC)," says Rastin, senior counsel with Gluckstein, who calls it "a unique piece of legislation that can take precedence over other pieces of legislation. "They could also be referencing the rights granted to all Canadians under the Charter of Rights and Freedoms," he says, adding that these rights only apply when citizens are dealing with the government or government agencies. "You can't sue a private company for a Charter violation," Rastin says. "You can only sue a provincial or federal government, or municipality or similar body. And the court action has to involve an infringement of voting rights, freedom of religion, freedom of association or some other item that is protected in the Charter."
Most Ontario workers covered by the OHRCHe says that approximately 90 percent of employees in Ontario are provincially regulated, so the provincial OHRC protects their rights. A much smaller percentage of Ontarians are covered by the Canada Labour Code, Rastin says, explaining it applies to federally regulated employees, such as employees of interprovincial trucking companies, nuclear power plants, banks and airlines, as well as all First Nations. "Some people call my office and say, 'I've been wronged, I want to sue,'" he says. "Before we can act, we have to determine which group they fit into and the circumstances of what happened that led to the complaint." Rastin explains that Part One of the OHRC states that people have the right to be free from discrimination when it comes to employment, housing, services, unions and vocational associations and contracts.
17 grounds for filing a discrimination actionThat same section of the Code spells out the 17 grounds for which people can make a discrimination claim. Those are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment). "Your discrimination complaint has to fit into one of those areas," he says, adding that in recent years, the Code has been updated to protect the 2SLGBTQ+ community. Rastin says one of the most common types of cases brought to the tribunal concerns employees who feel that their employment was terminated because of a disability, perhaps brought on by an accident or disease. "In those cases, there is definitely an element of employment discrimination that applies under the Code. Other significant areas are racial discrimination, gender discrimination, firing someone because they are pregnant, or firing somebody because of sexual orientation."
ESA offers protectionHe says people in those situations have a few options. One is to launch civil action in court, suing for wrongful dismissal while tacking on a human rights claim. "If you feel you were discriminated against because of pregnancy, the Employment Standards Act (ESA) has provisions that apply to your situation. Or you can file a complaint with the Human Rights Tribunal of Ontario. Rastin says people can go to the tribunal if they are being harassed in the workplace, but he cautions that harassment has to relate to one of the areas listed in Part One, such as race or sexual orientation. "If you are being harassed because of the football team you support, you can't bring that complaint to the tribunal," he says. "There is anti-bullying legislation in Ontario, but that's a different conversation."
No-cost awards with the OHRCRastin says one of the key differences between civil courts and the tribunal is that there are no-cost awards with the latter. "In some ways, that can be good because, in Ontario civil courts, the loser usually is ordered to pay some or all of the victor's court costs, which can be in the tens or hundreds of thousands of dollars," he says. The downside of not having cost awards is that some people attempt to use the tribunal as a weapon, he says, explaining a meritless complaint is filed to obtain compensation. "Businesses have been known to settle these cases because they don't like the publicity they bring," Rastin says. Because costs are not awarded, he says lawyers may be hesitant to represent clients at the tribunal. However, there are community legal clinics that will represent low-income people on a pro bono basis.
Damage awards are on the increaseRastin says an interesting development he is seeing relates to the value of the damages being awarded by the OHRC tribunal. "A few decades ago, awards were very modest, with 90 percent of the cases resolved for $10,000 or less," he says. "In recent years, the tribunal has ordered employers to pay tens of thousands of dollars in cases where people were terminated for discriminatory reasons. There have also been some sexual harassment cases where the awards were well over $100,000. "The tribunal has drastically increased the punishment for employers who act inappropriately," Rastin adds. When compared to the court, he says the key advantage of going to the tribunal is that it should be easier to access and cheaper for the public. "The disadvantage is there are limits in terms of the kind of damages that you're going to get compared to a civil action," Rastin says. "And you might have trouble getting a lawyer because there are no-cost provisions."
COVID slowed the Tribunal's operationsThe lockdown brought on by the COVID-19 pandemic really hurt the efficiency of the tribunal, he says. "While the courts struggled to maintain operations during COVID, the tribunal basically just stopped processing complaints," Rastin says. "Our firm has some cases sitting in abeyance for more than a year, even though there's a one-year limitation period for filing these cases." He advises people to think of all the options when pursuing a human rights complaint. "If your long-term disability benefits are terminated for what you think is a discriminatory reason, maybe you just sue for wrongful dismissal in civil court and add discrimination as an aggravating factor," Rastin says. "You might have recourse under the ESA, especially if it's pregnancy-related." "The OHRC tribunal may be a final option," he adds. "Under normal times, it is supposed to be a faster, more efficient route to accessing justice. We will have to see how it deals with the backlog caused by COVID."
Trusted expertiseGluckstein Lawyers is a firm that is always there for our clients and ready to advocate on their behalf. If you feel that you may have a Human Rights case, reach out to Steve Rastin for a free consultation.
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