The Human Rights Administrative Process

Ontario’s Human Rights Code ¹ contains a deeming provision holding an employer responsible for the conduct of its officer, official, employee or agent in the course of their employment.

This provision, however, does not apply to freedom from harassment in the workplace, ²sexual harassment in the workplace ³and sexual solicitation and freedom from reprisal connected to sexual solicitation.

There is hence is no deemed liability upon the employer for wrongdoings under these remedy sections.

Thus, under the Ontario Code, the complaint must be brought personally against the individual who is accused of the offensive conduct. ⁴

The Federal legislation, however, allows for a “due diligence” defence to be raised against the assertion of vicarious liability.  The employer must show that (1) it did not consent to questioned conduct, (2) and it used all due diligence to prevent event and (3) did all it could to minimize or avoid the adverse consequences.

This does not, however, end the analysis of employer liability, again to a complaint of pure sexual harassment under the administrative process.

Organic Liability

This concept of “organic liability” provides an argument that the employer company is responsible for the conduct of its principals. It is different from vicarious liability. The theory is that a legal entity can only act through its principals and hence the company will held liable for such conduct of its “principals” or “its directing mind” in a sexual harassment case, or a similar situation where the statute’s deeming provision of liability upon the employer does not apply.

The above review, however, does not end the analysis of employer liability.

Poisoned Work Environment

The remains a further means of establishing employer liability for a sexual harassment allegation due to the existence of a “poisoned work environment”. ⁵This liability is not exempted from the deeming provisions of the Ontario Code.  Management employees who fail to take remedial action to eliminate such a work environment and the corporation may both be liable for a breach of this obligation, ⁶In essence, a company which has failed to deal with Code violations prevalent in the workplace will take on this liability due to its failure to assure a proper and safe workplace.

General Reprisal

The word “reprisal” can lead to confusion as there are two types of such retaliatory conduct often described as “reprisal”. The first is such actions taken by the employer in response to the filing or threatened filing of any human rights complaint. To make the analysis clear, this is referenced as “General Reprisal”.

The second is conduct of the employer or an individual against a person who has not acceded to demands for sexual favours. This conduct is generally defined as a form of sexual harassment which for this purpose, it will be referenced as “Sexual Reprisal”. ⁷

Conduct which is retaliatory to the threat of or the commencement of a human rights complaint is actionable as reprisal. This is to be distinguished from adverse conduct due to the failure to reply to sexual solicitation.

The employer has direct liability for such a complaint.

A complainant for a General Reprisal remedy stands alone. ⁸ Success in the substantive complaint is not required. The applicant must only show that rights were claimed or threatened to be claimed under the Code and she was the subject of adverse treatment or the threat of as a result. ⁹ The applicant in such a case simply must show that rights under the code were claimed and she was then the subject of threats of, or actual adverse consequences.

Unlike a complaint of adverse discriminatory conduct which does not require proof of intent, ¹⁰a claim of General Reprisal requires proof that the action or threat was indeed intended as a retaliation to the claim to or enforcement of a right under the Code.

Such intent may be inferred from circumstantial evidence, ¹¹but there must be evidence to support the proposition that the decision maker was aware of the steps being taken to enforce Code rights. ¹²

It is generally conceded that to prove General Reprisal, intent must be shown. The intent to reprise may be inferred from the facts ¹³and is a matter of credibility. ¹⁴To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint. .¹⁵

To show General Reprisal, the complainant must show a link between the alleged retaliatory conduct and the threat of or the filing of the complaint, which is normally proven by inference as direct evidence is invariably non-existent. The second aspect of the test is to show that the offensive conduct is, at least in part, an intentional response to the complaint. ¹⁶

To succeed on such a General Reprisal claim, the substantive claim which has been threatened or actually brought, need not succeed. ¹⁷The applicant cannot threaten or bring a claim which she knows lacks merit. He must, however, have a genuine belief in its merits. ¹⁸

A General Reprisal claim may also lead to a lost income award, again independently of the merits of the substantive complaint. ¹⁹