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59Supreme Court in 1987 in Robichaud in reviewing the Canadian Human Rights Act; Back to book Page ‣
622000 the Supreme Court of Canada in Quebec v Montréal (City) Back to book Page ‣
64The distinction as to carriage of the human rights complaint is also important and discussed later. May it suffice to say presently in most Canadian jurisdictions, apart from Ontario and B.C., it is the Human Rights Commission which is the party that presents the case to the decision making body, commonly called a Board of Inquiry.Back to book Page ‣
66In the same case it was determined that the commencement date of the filing was the initial return date of the motion to amend the complaint to add these allegations of sexual harassment. The motion had been adjourned on its first appearance. Back to book Page ‣
67It is to be noted that while a finding of an employment relationship may be a precursor to jurisdiction of the human rights code to a workplace sexual harassment complaint, this does not automatically lead to employer liability for a sexual harassment complaint in all jurisdictions. This is discussed in detail subsequently.Back to book Page ‣
68See for example, Payette v Alarm Guard Services (Dimovski) in which this test was successfully applied. A reconsideration motion was dismissed by the Tribunal (Doyle). Back to book Page ‣
69The case involved the determination of employment status as an issue in the argument of vicarious liability, as a finding of an employment relationship would have been most beneficial as a stepping stone to the establishment of vicarious liability. Back to book Page ‣
70The Supreme Court also noted that the language which the parties may have chosen to define their relationship will not be determinative of the court’s finding.Back to book Page ‣
71The cited reference reflected the words of MacGuigan J.A. in a tax case, Wiebe Door Services Ltd v MNR, 87 DTC 5025 Back to book Page ‣
73Much to the same effect is the decision of the Alberta Court of Appeal in 1986 in Re Reference re Individual’s Rights Protection Act dealing with taxi cab drivers and their broker, also known as Pannu v Prestige Back to book Page ‣
75Canada (Attorney General) v. Rosin (1990), 16 C.H.R.R. D/441, the Federal Court of Appeal,Back to book Page ‣
80See Pannu v. Prestige Cab (1986), 8 C.H.R.R. D/3911 (Alta.C.A.); Yu v. Shell Canada [(2004), 49 C.H.R.R. D/56] and Szabo v. Poley, 2007HRTO37(CanLII), 2007 HRTO 37 (CanLII) and McCormick Back to book Page ‣
82Simpson v CAC, (leave to appeal refused by the Supreme Court of Canada, [2002] S.C.C.A. No. 83) Back to book Page ‣
83See also Tellier v. Bank of Montreal (1987), 17 C.C.E.L. 1 (Ont. Dist. Ct.) a civil action for wrongful dismissal; Back to book Page ‣
85van Woerkens v Marriott Hotels of Canada, in a civil action for wrongful dismissal. Back to book Page ‣
86Davison v Nova Scotia Construction Safety Association, a decision of the Nova Scotia Human Rights Board of Inquiry, upheld in the N.S. Court of Appeal Back to book Page ‣
88This issue of the employer defence of due diligence is reviewed subsequently. S. 65 of the Canadian Human Rights Act sets out the defence. Back to book Page ‣
92S. 46.3 (1) Ontario Human Rights Code Back to book Page ‣
93S. 5(2) OHRC Back to book Page ‣
95The Ontario Human Rights Tribunal publishes a guide for the filing of human rights complaints, which quite rightly discourages employees from naming personal respondents. This should be ignored in sexual harassment cases.Back to book Page ‣
97This defence is not available where the questioned conduct is that of an officer or director of the employer, which basically incorporates the “organic theory” of employer liability described below.Back to book Page ‣
99The Ontario Divisional Court in OHRC v Farris, McKeague, Leonard et al., which was a case of gender discrimination.Desousa v Gauthier (DeGuire) and Payette v Alarm Guard Services (Dimovski). In Payette, the manager was found to be personally liable. This was not a case of organic liability as the directing mind.Back to book Page ‣
100Section 5(1) of the Ontario Code creates an obligation of the corporation to make a proper and timely investigation of the complaint. The same is true for the OHSA even prior to the September 2016 amendments. Failure to investigate will lead to an allegation of negligence and or constructive dismissal and or breach of an implied contractual term in civil court. Back to book Page ‣
101The Divisional Court decision of Walton Enterprizes v Lombardi Back to book Page ‣
102This applies only to liability under the human rights statute for failure to investigate. Common law liability for such a default is not as straightforward and is discussed subsequently. Back to book Page ‣
103This is referred to in this text as “sexual reprisal” to distinguish such conduct from “general reprisal” which is retaliatory action taken due to the making of a human rights complaint.Back to book Page ‣
104B.C., Saskatchewan, Nova Scotia, PEI, Newfoundland & Labrador, Quebec, Nunavut Back to book Page ‣
105Robichaud v The Treasury Board Back to book Page ‣
106Nova Scotia and Manitoba Back to book Page ‣
107That is, whether there is a “due diligence” defence available. Back to book Page ‣
108That is, a reprisal for the use or threatened use of the Code remedy as opposed to conduct retaliatory to the sexual solicitation.Back to book Page ‣
110It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd Back to book Page ‣
112in Kowalczyk v Hudson’s Bay (Hart); Jones v. Amway of Canada Ltd. [2002] O.J. No.1504 (Ont. Div. Ct.) Back to book Page ‣
113This arises from S. 5(1) of the Ontario Code.Back to book Page ‣
115The June 1968 decision of the Board of Inquiry (Tarnopolosky) Britnell v Michael Brent Personnel Placement Servicesunder the Age Discrimination Act of 1966 was an early decision to deal with the burden of proof. Back to book Page ‣
120Such is not the case where the respondent relies upon a statutory defence, in which context the burden of proof does shift as per the Supreme Court, in Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982CanLII15(SCC), [1982] 1 S.C.R. 202, and to the same effect Ontario Court of Appeal Peel Law Association v Pieters Back to book Page ‣
126Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (Hornung), a decision of the Canadian Human Rights Tribunal.Back to book Page ‣
128Simpson v CAC, (leave to appeal refused)Back to book Page ‣
131Divisional Court in Smith and Ontario (Human Rights Commission) v Mardana. Div. Ct. confirmed that the Code violation need only be a factor and that intent is not required to be proven.Back to book Page ‣
132Take for example this analysis:
… The customer blamed Smith and the employee blamed Smith. Smith said that he should have been listened to and believed by management. Whether or not Smith is correct, I find the termination was not racially motivated. Why would the very people who hired him, who were impressed by him, who promoted him, and who accommodated his school schedule in terms of working hours, suddenly make a decision against him based on his race?
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134Supreme Court of Canada in Janzen v Platy, Human Rights Tribunal in Hummel v Transport Training (Cleghorn) Back to book Page ‣
135April 1987 Divisional Court decision of Scott v Foster Wheeler 8 CHRR D/4179, sitting on appeal from the decision of the Board of Inquiry; The Federal Court of Appeal in Holden v Canadian National Railway1990 14 CHRR D/12Back to book Page ‣
136Wilson v Solis Mexican Foods. The Court accepted in its analysis the application of a human rights principle of construction, namely, that the alleged violation of the Code need be shown to be but a factor and not the sole factor in the decision to terminate.Back to book Page ‣
137Ontario Divisional Court in Smith v. Mardana Ltd. (No. 2) (2005), CHRR Doc. 05-094; Cugliari v Telefficiency (Faughan) ack to book Page ‣
139Apart from a general reprisal or sexual reprisal, where such rules are very helpful. Back to book Page ‣
140Bell and Korczak v Ladas and Flaming Steer Steak House(Shime) 1 CHRR D/155 Back to book Page ‣
141Bell, as above Back to book Page ‣
142Similar fact evidence, of course, will always be prejudicial, Papa Joe’s Pizza and OHRC, Divisional Court Back to book Page ‣
145Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8,Back to book Page ‣
146Bell v. Ladas, [1980] O.H.R.B.I.D. No. 16 Back to book Page ‣
148As stated in Cugliari by the Tribunal Back to book Page ‣
149As set out by Supreme Court of Canada in R.v W.(D.) Back to book Page ‣
150MacDougall, Back to book Page ‣
154The Neinstein case then cited was at the Divisional Court level. It later went to the Court of Appeal and was set aside, although not on this issue.In the intervening period between the Divisional Court decision and that of the Court of Appeal, the Supreme Court of Canada released its decision in MacDougall which confirmed that the three part step process was not applicable to civil cases, a point noted by the Court of Appeal in indicating its agreement with the Divisional Court on this issue.Back to book Page ‣
156A further reference source is Justice Green in R. v. Taylor, 2010 ONCJ 396(CanLII), [2010] O.J. No. 3794, 2010 ONCJ 396, (at paras. 58 to 60) Back to book Page ‣
157Kowalczyk v Hudson’sBay (Hart). (There were multiple reasons expressed for the Tribunal not accepting the complainant’s evidence. This was one of them expressed – ed); This issue was also discussed in CugliariBack to book Page ‣
158Ontario Court of Appeal in Rasanen v Rosemount provides a good review of the test of issue estoppel. The parties and issue must be the same and the decision must be judicial and final. There is overall discretion to apply or deny the principle as well.Back to book Page ‣
164R. v. Hall, 2010 ONCA 421(CanLII), 2010 ONCA 421 (CanLII) at para. 11.Back to book Page ‣