Leading Affirmative Evidence

If a case is commenced, the employer can defend the case by leading evidence to show what the true motivation and reason for its actions was, and hence rebut the inference of adverse treatment.

For example, if an applicant asserts that he was not hired due to his race and offers statistical or other evidence to support the inference, the employer can reply by leading evidence to show that the education and background experience of the complainant was lacking, which was the reason for the decision.

The same concept applies to any liability defence. The employer should be prepared to lead evidence to demonstrate what the apparent motivator was, as opposed to simply denying the alleged offensive action.

Accommodation

In a case involving a medical disability, or any case requiring accommodation, such as creed, family status, the test of “undue hardship” is a difficult one to meet, but it can be done. The test is twofold, one being “procedural” and the second substantive.

The procedural aspect requires the employer to show what steps it took to determine the nature of the relevant issue and then assess how it might be able to accommodate the request. External advice may be required. The employee must co-operate in this endeavour. Disability cases will require the employee to be co-operative and share details of the nature of the restrictions, whether the condition is temporary or permanent.

The employer must then provide evidence to show why it could not offer accommodation. This requires proof of the nature of hardship, the expense, the difficulty this presented and the impact on the business. Also, the consequences of such accommodation upon other employees is a factor to be considered.

Investigation

At all times, the employer should also be prepared to show that it quickly and diligently investigated the merits of the complaint as soon as it was made aware of the issue. This is important not only because it is required to do so, but also because it will have access to timely evidence which it can use to defend itself, as may be appropriate.

The employer policy manual may be of assistance as well in the early stages. It will encourage any alleged victims to come forward freely and also tend to internalize the issue and minimize the likelihood of litigation.

Certain cases, such a sexual harassment claims, are particularly difficult as the employer often has no view of which party is correct in the allegation or the denial. A third party investigator can be useful at this stage to try to make factual findings of what actually did happen. This report will not be binding on a human rights tribunal but it can give the employer some direction as to what did happen. It may also be influential in leading to a resolution or putting into place remedial steps which may avoid litigation.

Also, in the jurisdictions allowing a due diligence defence, such prompt action to investigate and take remedial action where appropriate is very important. ¹

Poisoned Work Environment

Not all human rights violations are considered equal. Some can be very serious and some may involve conduct which is offensive, yet not worthy of termination if the offending employee is to be reprimanded. Similarly, if there has been a finding of improper conduct, it does not necessarily follow that the aggrieved employee may argue that she may cease employment due to a poisoned work environment and claim an income loss.

There must be a contextual review of the conduct to determine where on the spectrum of gravity the offence may lie.

Limiting the Income Loss

On the lost income award, even if there is a finding of fault, there is no necessity that the award for lost income be set for the time period to the date of hearing, as many cases have done. (see, https://empl-human-rights.com/2023/08/03/special-damages-lost-income/#Intervening_Factor)

The employer may show evidence that even if the complainant was not terminated, the person’s employment would have terminated for other reasons unconnected to a human rights issue.

For example, if the company suffered a loss of business and had, in any event, made plans to reduce its workforce which would inevitably have led to the termination of the complainant, the claim for lost income would also come to an end of this date.

Similarly, any other legitimate business reason, apart from a loss of business, which would have caused the complainant even a risk to being terminated, may factor into the calculation of the income loss.

If the employee had shown serious performance issues prior to termination, even if there is a finding of adverse treatment that led to the termination, the employer may still argue that the likelihood of a long term of employment was remote and hence the claim for lost income should be abridged.

The theory of this determination of the claim for lost income is all based on the obligation of the claimant to prove a causal link between the adverse conduct of the employer and the claim for lost income. The Alberta Court of Appeal in Walsh v Mobil Oil, referenced above, stated that “there must be a causal link between the discriminatory practice and the loss claimed”.

The test, hence as defined, becomes: but for the employer’s adverse conduct, what income would have the applicant otherwise have received? This then allows the employer to introduce evidence to prove that even if there was no termination for adverse reasons, the employee would have been legitimately terminated for other business reasons.

Failure to Mitigate

The employer may also argue that the complainant has not taken reasonable steps to seek other employment. This is a difficult plea as the company must not only show that the employee was not diligent in his or her job search, but also that if he or she did so, such attempts would likely have been successful. This means calling evidence from another employer to confirm that this company would have likely hired him or her, had there been an application. This may be an awkward and formidable task, which may be the reason that this defence rarely yields results.

Reinstatement

The remedy of reinstatement is not reflexive and is within the discretion of the decision maker. Often the employee does not seek reinstatement. Where it is requested, the employer may offer evidence as to why a continued relationship of employment is unworkable. The list of reasons may be infinite. It may include the inherent difficulty in dealing with a person who has litigated with the employer, personal relationships within the company, a decline in the size of the work force, loss of business, the likelihood of there being an unproductive working environment, and any other factors showing prejudice to the employer in the making of this order.

Care should be taken in making this submission as a denial of reinstatement, where the employee remains unemployed, could lead to a future income loss beyond the date of hearing.

Offer

It may be a difficult thought to contemplate but sometimes the employer’s best defence may be to admit the error. Where the complainant’s case is valid, an offer from the employer to pay reasonable damages for hurt feelings, a fair income loss and even an offer of re-employment, particularly when made early in the day, may be the best defence.

Many complainants have no interest in returning to active employment. Even when such an offer is refused, this could be the company’s best defence.

Legal costs are not awarded in Ontario to either party, successful or otherwise. Even in the jurisdictions which contemplate costs orders, there are generally reserved for exceptionally outrageous behaviour. Accordingly even a successful defence will represent an unrecovered cost, a factor to be considered in the interests of an early resolve. Similarly the corollary is true. A successful complainant will be required to reimburse his own counsel.

Motion to Dismiss

Ontario, B.C. and Nunavut are the only jurisdictions which employ the direct user access system. In every other jurisdiction, the human rights commission controls the process of the complaint. Apart from Quebec, in each of these provinces or territories, the commission has the ability to drop the case if it is of the view a reasonable offer of settlement has been made. There is a big advantage to take a reasonable approach where liability looks imminent and end the case, even without the claimant’s consent, which can be done. Typically, the commission is not interested in litigation where a reasonable settlement can be obtained.

In Quebec, the individual has the right to take the case to hearing where the commission decides to cease its involvement.

Because many claimants in B.C. and Ontario are unrepresented and there is no gate keeper such as human rights commission, as is the case in most of the remaining jurisdictions, motions to dismiss are relatively common and for good reason may be successful.

The test to show success on such a motion is set out above. There are, again, two popular arguments.

The first is that even if the claim is taken as valid and factual on the complaint as filed, there is no violation of the code made out.

The second is that the evidence does not support a claim and that there is no reasonable chance of success. The advantage of bringing such a motion is that the worst case for the employer is that the complainant will likely show all the evidence to support the case at an early stage. The best result, of course, would be an early dismissal.