The Human Rights Code — Framework and Structure
The Human Rights Code RSO 1990 c H.19 (the "Code") is a quasi-constitutional statute in Ontario. As confirmed in Tranchemontagne v Ontario [2006] 1 SCR 513, the Code prevails over other provincial statutes unless the conflicting statute expressly provides otherwise. The Code creates rights, not merely remedies — its interpretation is purposive and generous (Ontario Human Rights Commission v Simpsons-Sears Ltd [1985] 2 SCR 536, "O'Malley").
The Code prohibits discrimination and harassment in five social areas:
- Services, goods, and facilities — s.1 (retail, professional services, restaurants, public transit, insurance)
- Accommodation (housing) — s.2 (tenancy, co-operative housing)
- Contracts — s.3
- Employment — s.5 (hiring, terms, conditions, dismissal)
- Membership in vocational associations — s.6 (unions, professional associations)
Protected Grounds
- Race, ancestry, place of origin, colour, ethnic origin
- Citizenship
- Creed (religion — includes non-belief and sincerely held non-theistic beliefs)
- Sex (includes pregnancy — s.10(2); gender identity and gender expression added 2012)
- Sexual orientation
- Gender identity and gender expression (s.1 since 2012)
- Age (defined s.10 as 18+; no upper limit for employment since 2009 repeal of mandatory retirement)
- Marital status (includes conjugal relationships outside marriage)
- Family status (parent-child relationship — Johnstone v Canada Border Services Agency 2014 FCA 110)
- Disability (s.10 broad definition — physical, mental, psychiatric; past, present, or perceived; includes addiction)
- Receipt of public assistance (housing only — s.2(1))
- Record of offences (employment and housing — s.5, s.2; pardoned offences)
Grounds are intersectional — discrimination may arise at the intersection of two or more grounds.
Constructive Discrimination — the O'Malley Principle
Ontario Human Rights Commission v Simpsons-Sears Ltd [1985] 2 SCR 536 established that the Code reaches not only intentional discrimination but also constructive (adverse effect) discrimination: a rule that appears neutral on its face but has an adverse effect on a person because of a protected ground.
In O'Malley, a Saturday-work requirement adversely affected a Seventh-day Adventist employee whose creed prohibited Saturday work. The employer had a duty to accommodate to the point of undue hardship.
The Supreme Court unified the direct/constructive distinction in BC (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3 ("Meiorin"), adopting a single three-part test:
- The standard was adopted for a purpose rationally connected to the function being performed;
- The standard was adopted in honest and good-faith belief it was necessary; and
- The standard is reasonably necessary — the employer cannot accommodate without undue hardship.
Duty to Accommodate
The duty to accommodate requires modifying rules, practices, or physical environments to remove barriers experienced by persons with protected characteristics, to the point of undue hardship.
Undue Hardship — Factors
Section 17(2) specifies three factors in the disability context: cost, outside sources of funding, and health and safety requirements. Courts have confirmed:
- Cost must be quantified — speculation is insufficient (Central Okanagan School District v Renaud [1992] 2 SCR 970)
- Morale costs alone (co-worker resentment) do not constitute undue hardship
- Health and safety risks must be significant, not merely speculative
- The employee has a duty to cooperate in the accommodation process
Accommodation Process
Accommodation is collaborative. An employee must: (1) inform the employer of the disability and need for accommodation; (2) participate in finding solutions; and (3) accept reasonable accommodation even if not the preferred solution (Renaud). Medical information: employers may require confirmation of disability and functional limitations but not generally a diagnosis.
Harassment
Section 5(2) prohibits harassment in employment based on a protected ground. Section 7 prohibits sexual solicitation and reprisals. "Harassment" in s.10(1) means a course of vexatious comment or conduct known or ought reasonably to be known to be unwelcome.
Employers are vicariously liable for harassment by supervisors and managers (Janzen v Platy Enterprises [1989] 1 SCR 1252 — sexual harassment is sex discrimination). An employer who had no knowledge and took all reasonable steps to prevent harassment may rebut liability.
HRTO — Human Rights Tribunal of Ontario
Since November 30, 2008 (Bill 107), applicants file complaints directly at the HRTO rather than through the OHRC. The OHRC retains public interest functions — education, policy development, and independent applications.
Limitation Period
An application must be filed within one year of the last alleged discriminatory act (s.34(1)). Extension possible where in the interest of justice.
Process
Applicant files Form 1; respondent files Response within 35 days. HRTO screens for jurisdiction and abuse of process (s.45.6 — overlap with grievance arbitration; s.45 — overlap with other proceedings). Mediation before hearing resolves approximately 60-70% of applications.
Hearing and Burden
Standard of proof: balance of probabilities. Once the applicant establishes a prima facie case (the ground was a factor in the treatment), the burden shifts to the respondent to justify the conduct (Moore v BC (Education) 2012 SCC 61).
Remedies — s.45.2
- General damages — injury to dignity, feelings, and self-respect (typical range $5,000–$50,000)
- Lost wage compensation and future wage loss
- Reinstatement (employment)
- Policy changes, training, monitoring
- Public interest remedies — systemic change orders
No punitive damages. No costs orders. Post-award interest available.
Key Case Law
- O'Malley [1985] 2 SCR 536 — constructive discrimination; duty to accommodate; creed (Saturday work)
- Renaud [1992] 2 SCR 970 — employee duty to cooperate in accommodation
- Meiorin [1999] 3 SCR 3 — unified three-part test for all discrimination
- Grismer [1999] 3 SCR 868 — individualized accommodation assessment; visual acuity standard
- Moore v BC (Education) 2012 SCC 61 — disability (dyslexia); systemic discrimination; prima facie burden shift
- Tranchemontagne v Ontario [2006] 1 SCR 513 — Code quasi-constitutional; addiction as disability
- Janzen v Platy Enterprises [1989] 1 SCR 1252 — sexual harassment is sex discrimination; employer vicarious liability
- Johnstone v CBSA 2014 FCA 110 — family status; childcare obligations as protected ground
Special Programs — s.14
Section 14 permits special programs designed to relieve hardship or disadvantage for groups protected under the Code. Such programs do not violate the Code even where they create preferential treatment for a protected group.
Human Rights and LSO Obligations
Ontario lawyers have obligations under both the Code and the LSO Rules of Professional Conduct. Rule 6.3 (Discrimination and Harassment) prohibits discrimination and harassment in professional dealings and in the operation of a law practice. An Ontario firm's practice management platform should support accessible interfaces and not create barriers for lawyers with disabilities.