Defining Discrimination
The essence of discrimination was defined in a case interpreting the Charter of Rights and Freedoms. 1 It remains nonetheless the touch stone for setting out the meaning of discrimination for purposes of human rights legislation. The term was defined to mean “practices or attitudes” intentionally or otherwise which limit a person’s opportunities based upon an attributed characteristic based on an association to a group.
The Basics
The first remedy is to file a complaint with the relevant human rights body. This process, of course, is available to any person employed in Canada.
In Ontario, presuming that the individual is governed by provincial and not federal law, there is a second manner of seeking a human rights remedy. Ontario amended its legislation 2 on June 30, 2008 to allow civil claims for a breach of a human rights violation when included with another civil claim. Hence, a plaintiff suing for wrongful dismissal, or any other form of civil relief, may also add a claim, where appropriate, for damages and other remedies for a human rights violation.
Prima Facie Case
The applicant must show a prima facie case to cause the employer to respond. This is reviewed here.
Subtle Forms of Adverse Treatment
Often discriminatory conduct is not overt. Case law has allowed the applicant to show the prima facie case by reasonable inference, statistical evidence, and by demonstrating conduct which display systemic discrimination. The adverse factor must be only an influential one and not the sole reason for the questioned conduct. Intent is not required to be shown.
A review of these issues follows.