Human Rights Complaints Post Bill 107
The Ontario Human Rights Code Amendment Act, 2006 tabled as Bill 107 was passed by the Ontario legislature on December 5, 2006. With the passing of Bill 107, employers can expect a more litigious Human Rights system and a correspondingly more expensive one.Previously, and under the Ontario Human Rights Code regime, employees alleging discrimination on the basis of a prohibited ground such as colour, creed, race, disability, sexual orientation etc…would file a complaint with the Ontario Human Rights Commission. The Ontario Human Rights Commission would then consider the grievance and attempt to resolve it by way of settlement between the disputing parties. Failing settlement, the grievance would generally reach the Ontario Human Rights Tribunal following an investigation by the Commission resulting in a determination that the grievance merited prosecution.
Under the Bill 107 regime, an employee will have direct access to the Human Rights Tribunal and will be required to file, investigate and build its own case against the employer. Employers, in turn, will be required to mount and present their defence in a more adversarial setting as opposed to attending to more streamlined and informal mediation sessions before the Human Rights Commission as was the case under the old Code. And that’s not all. Bill 107 goes on to provide that employees alleging a Human Rights infringement may sue their employer for damages before the civil courts of Ontario. Furthermore, the new Act bars an application to the Human Rights Tribunal in cases where an employee has commenced a civil action against an employer for an alleged violation of the employee’s Human Rights.
Other noteworthy changes brought about by Bill 107 include an extension to the limitation period to launch a claim from six months to one year from the date of the alleged Human Rights infringement. As well, damages awardable on account of mental distress will no longer be capped at $10,000.00 and the Tribunal has been given the power to fine an employer up to $25,000.00 for infringing an employee’s Human Rights.
All in all, the risk of increased and costly litigation are relatively high as a result of the amended Act and employers will likely experience a marked increase in the cost of doing business as a result. Consequently, employers are encouraged to implement effective measures to counter the odds of having to defend against Human Rights claims whether before the Tribunal or the courts. In particular, employers should keep abreast of their obligations with respect to ensuring compliance with Human Rights legislation and, when in doubt, should consult legal counsel. Employers should also establish workplace policies which, promote respect for Human Rights and provide for internal management for complaints of alleged infringements. Counsel should nonetheless be consulted in order to assist in cases where complaints are made and handled through internal resolution processes established by the employer.