How Detailed Should Discriminatory Treatment Be Explained Within a Complaint Filed With the Human Rights Tribunal of Ontario?

Mistreatment May Occur Simply As Mistreatment Without Discrimination. Discrimination May Occur Only When Mistreatment Occurs Due to a Personal Characteristic Within a Protected Grounds, Such As Race, Origin, Sex, Marital Status, Among Others, As Per the Human Rights Code. Discrimination Allegations Must Be Connected to Protected Grounds.

Understanding the Requirements When Submitting a Human Rights Complaint Including Specifics of Alleged Discrimination

To begin the process of filing a complaint with the Human Rights Tribunal of Ontario, an Application containing specific details of the alleged discriminatory conduct is required.  The law requires more than just stating that a person within an protected group was mistreated; and accordingly, the details must how the mistreatment constitutes as discrimination.

The Law

The requirement that discrimination allegations contain details explaining how mistreatment constitutes as discrimination based upon the characteristics of a person within a protected group was explained in Lovrecich v. Shoppers Drug Mart, 2021 HRTO 848 where it was stated:

[5]  To proceed in the Tribunal’s process, an Application must fall within the Tribunal’s jurisdiction. An adjudicative body either has jurisdiction or it does not. See G.L. v. OHIP (General Manager), 2014 ONSC 5392.

[6]  The Tribunal’s jurisdiction is limited to enforcement of the Code. The Code only prohibits actions that discriminate against people based on the enumerated ground(s) in a protected social area. This means that the Tribunal does not have the jurisdiction over general allegations of unfairness unrelated to the Code. See Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (“Hay”) and Bello v. Toronto Transit Commission, 2014 ONSC 5535.

[7]  By virtue of their humanity, everyone will identify with at least one Code-enumerated ground and, over the course of their lifetime, most people will suffer some form of adverse treatment which may or may not be connected to the Code. Because of this, the Code does not assume that all adverse treatment is discriminatory.

[8]  To fall within the Tribunal’s jurisdiction, an Application must provide some factual basis beyond a bald assertion which links their ground(s) to the respondents’ actions and explains why they think that these actions are discriminatory in nature. See Hay, above.

[9]  The Application and the applicant’s response to the Notice, deal with allegations of the respondents’ treatment of the applicant and being subjected to harassment while shopping in the store. In this case, the applicant does not explain why the respondents’ actions or alleged failures to act were based on discriminatory factors, other than providing merely bald allegations of adverse treatment and her disagreement with the customer service.

[10]  As noted above, it is not enough for an applicant to assert that they have an enumerated ground and have received adverse treatment at the hands of the respondents. To come within the Tribunal’s jurisdiction, the applicant must provide some factual basis to link the respondents’ conduct to their Code-enumerated ground. A bald assertion that the adverse treatment they received was owing to their enumerated ground is not enough to provide the required factual basis.

[11]  In these circumstances, I find that the applicant has failed to provide a factual basis beyond a bald assertion which links their grounds to the respondents’ actions. Accordingly, the Application does not fall within the Tribunal’s jurisdiction.

[12]  For the above reasons, the Application is dismissed.

As explained, mistreatment must arise from, and be alleged as arising from, discrimination based on the race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, or disability, of a person. The Human Rights Code, R.S.O. 1990, c. H.19 prescribes the protection from discrimination based on any of these criteria and in respect of access to services, accommodations, contracts, employment, and vocational associations.  Additionally, the Human Rights Code also forbids discrimination within employment based upon record of offences.  Specifically, the Human Rights Code states:

Services

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Accommodation

2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

Harassment in accommodation

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

Contracts

3 Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Accommodation of person under eighteen

4 (1) Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.

Idem

(2) A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old.

Employment

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Harassment in employment

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Vocational associations

6 Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Sexual harassment

Harassment because of sex in accommodation

7 (1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.

Harassment because of sex in workplaces

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Sexual solicitation by a person in position to confer benefit, etc.

(3) Every person has a right to be free from,

(a)  a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b)  a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

Reprisals

8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

Infringement prohibited

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Summary Comment

The jurisdiction of the Human Rights Tribunal of Ontario, meaning the authority of the Human Rights Tribunal of Ontario to hear and decide cases, is limited to cases alleging mistreatment as a form of discrimination upon a person that is motivated by the race, sex, age, marital status, among other things, of the person. Furthermore, the discrimination must arise in relation to services, accommodations, contracts, employment, or vocational associations. Accordingly, a person must experience something more than just mistreatment and a characteristic within a protected grounds of the Human Rights Code before a case may be become a legitimate issue of concern to the Human Rights Tribunal of Ontario. Indeed, the allegation of discrimination must be alleged to arise because of, rather than just coincidental to, a characteristic that falls within a protected grounds. If discrimination is alleged without sufficiently stating the connection to a Human Rights Code protected grounds, then the alleged discrimination is merely an allegation of mistreatment and falls outside the realm of a Human Rights Code violation. Accordingly, an Application filed with the Human Rights Tribunal of Ontario should be well drafted so as to clearly explain how allegations of discriminatory conduct connect to concerns protected by the Human Rights Code.

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