Starting a Human Rights Application in Ontario [video]

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This lecture provides a basic overview of the application process respecting human rights matters in Ontario.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone, this is Amer Mushtaq from You Counsel. Today we’ll give you an overview of how to commence a Human Rights application in Ontario. We’ll provide you with some basic steps so you get an understanding of how to commence this process.

We’ll begin with a disclaimer that this course is not legal advice, so if you have any specific questions you must contact a lawyer or paralegal.

What are we going to talk about today? The first and the foremost thing you want to understand is that the issue that you are raising, the dispute that you’re raising, is that considered legally considered discrimination or not? Would that fall under the general category of unfairness, harassment, workplace harassment, or something else or would it be squarely an issue that has to be dealt with by discrimination? We’ll talk about your status if you are an ordinary citizen and you went underwent a discrimination matter then your employment status is not relevant, but if your matter relates to your employment, either you’re a former employee or present employee then will talk about how your employment is relevant to what you do with your discrimination case. We’ll talk about Human Rights Tribunal’s jurisdiction it’s an important topic and you must understand that the jurisdiction issues clearly before you commence a Human Rights application. And we’ll talk about some of the resources that are available to you if you wish to commence a Human Rights application.

So what is the discrimination criteria? The important part that you want to understand is that for you to claim discrimination it must be based on one of the grounds that are provided in the Human Rights Code when you’re talking about issues in Ontario. If you’re dealing with a company or an organization or an employer who is federally regulated then you want to look at Canadian Human Rights Act, because that deals with federal legislation. If you’re in another province than obviously other provinces have their own Human Rights legislation and you must look at those to see whether your specific issue falls under the category of discrimination in those legislations. Most of the provincial legislations are similar, but there may be certain differences and you want to make sure that you understand that. So the key message here is that there are specific grounds that are listed in Human Rights legislation and your discrimination, the facts of your discrimination, must fall under one of those grounds, and if they don’t fall under those grounds then you don’t have a claim for discrimination.

What you want to understand is that there’s no common law cause of action. What this means is that if you remove these legislations, let’s say there was no Human Rights Code, there was no Canadian Human Rights Act, there was no legislation in Canada that existed that provided certain protections for Human Rights, then you cannot go to court and commence a tort proceeding saying that there’s a tort of discrimination, there’s no such thing. So the courts or the tribunals draw their jurisdiction their power from these specific legislations, and that’s how you can get to a claim for Human Rights.

Let’s go through Human Rights Code of Ontario and understand this a little bit better. Go to Table of Contents you will notice that Part 1 of the Human Rights Code of Ontario talks about freedom from discrimination and it has about 9 separate sections, and each section deals with a different subject matter: services, accommodation, harassment and accommodation, employment, so on and so forth. So let’s pick services as an example and see what the code says. Every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of, and now the grounds are listed: race, ancestry place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, or disability. So I believe these are 15 specific grounds, if you are a matter if your dispute is based on one of these grounds then you do or you potentially have a claim for discrimination on the basis of services, on the basis of one of these grounds. So essentially what you’re saying is that this restaurant, this bar, this organization treated me differently from others because of my race, or because of my disability, or because of my pregnancy, and so on and so forth.

So if you fall under one of these categories then you may have a potential claim for discrimination, if you don’t fall in one of these categories then you don’t. So it is important for you to be clear whether your case falls under the definition of Human Rights Discrimination in the respective provincial legislation or the federal legislation if that applies.

Now let’s talk about status. As I said if your matter is not related to employment then it doesn’t matter, your status is not relevant. But if you are complaining about discrimination with respect to employment, then it’s important for you to understand what is your status and then which status allows you to go where. If you are unionized employees then you have two options with respect to your Human Rights application. You can either file a grievance through the collective agreement it’s called the Grievance Arbitration Process so you can choose that or you can file an application with Human Rights Tribunal for Discrimination. You cannot do both; you cannot finish one and then start the other. You basically choose one or the other. There may be specific circumstances in which you may have gone through a grievance and may not be satisfied and the Tribunal may still be willing to hear your application, but those are very very limited circumstance. Generally speaking, you have the option to choose one or the other but not both.

If you’re a non-unionized employee you have only one option. Which is to go to the tribunal and file your Human Rights application. I put a question mark with the court action and I’ll talk about it in the next slide, in certain circumstances you may be able to go to court for your Human Rights application, but generally speaking you cannot.

So what is the tribunal jurisdiction? In this case because we’re talking about Ontario we’re talking about Human Rights Tribunal of Ontario which is the body that deals with all the all the discrimination issues arising under Human Rights Code. Canadian Human Rights Commission and Tribunal are two separate bodies with different functions, but they deal with Human Rights matters that relate to federally regulated entities.

Okay so what you want to keep in mind is that when you look at Human Rights Code you will find there’s one specific section that says that Human Rights Tribunal has the exclusive jurisdiction to deal with Human Rights matters. And I want you to understand the part of jurisdiction and exclusivity both. So when we’re talking about jurisdiction what you want to understand if you’re not clear about what a jurisdiction is, jurisdiction is really the power of the judge or that court to decide upon your specific issue and grant you the remedy. Does that court have that power or does it not? And what you want to keep in mind is that not every single court in Ontario or in Canada has the power to deal with every single issue that may come before them, no. They draw their power from specific legislation, and their powers are limited to that legislation. So a common example I can give you is that when you go to Small Claims Court, the judge in Small Claims Court only has the power to grant remedies up to $25,000 and anything beyond $25,000 he or she does not even have the power to grant you that remedy, whether or not he have a good case or not, so there are limited powers.

With respect to jurisdiction for Human Rights matters the Human Rights Code say that Human Rights Tribunal has the exclusive jurisdiction for Human Rights matters, so that means you cannot go to court for Human Rights matters. So far it’s simple but then it gets complicated. How it gets complicated is that let’s say if you have a factual dispute and on the one side it’s a discrimination issue, but in addition to discrimination there is another legal dispute that arises because of those facts, and those facts or those legal matters are not in the power of Human Rights Tribunal. So let’s talk about it by way of an example.

Let’s say you are filing a Human Rights application or you have a Human Rights dispute with respect to your employment, but at the same time you’re also terminated from your employment and now you have a Wrongful Dismissal action, which may or may not be related to your Human Rights application, but now you have two issues against the same organization, the same company, the factual matrix, the underlying facts are the same or similar for both matters. So now the law does not say that you go for your discrimination issue to the tribunal and go for the Wrongful Dismissal issue to the court, it doesn’t say that. So in that situation you have an option to go to the court, take your entire case to the court, and the court will deal with your discrimination issue and the Wrongful Dismissal action. So that’s sort of a basic example but there could be other categories in which your matter may overlap into more than one legal category. Some of them may not be under the jurisdiction of Human Rights Tribunal and so the appropriate course of action is to go to the court.

Now when we deal with Human Rights matters, not only that we look at this issue the jurisdiction issue, but we look at some of the strategies in terms of what will get us the best results respect to the specific issues. Sometimes we take the entire case to the tribunals because that may be a better place strategically. Sometimes we take the entire issue to the court because that may serve our client’s interests better. So as long as you understand that jurisdiction is an important factor that you have to consider you will not end up going to the wrong place.

Now let’s talk about some of the resources. Human Rights Legal Support Center is an organization that is created by the government and it provides free services to applicants, not to respondents unfortunately, but just to the applicants who believe that they have been discriminated. So I have provided the website here and there should be contact information here. But if you type into Google, “Human Rights Legal Support Center,” and make sure that you understand the wording correctly, because you know with Human Rights you can mix up the tribunal, the commission, the support center, so you want to be clear that “Human Rights Legal Support Center” is the entity. If you believe you have been discriminated they can they have lawyers they have other staff and they can provide you with free advice and free services to fight your Human Rights matter, and bring an application on your behalf to the Human Rights Tribunal if necessary. So contact that organization if you wish to not hire a lawyer and then seek advice for free.

Human Rights Commission also has a number of resources, Human Rights Commission of Ontario essentially is a body that does a lot of research on Human Rights matters and posts and puts out a lot of tutorials and other information about Human Rights issues so it’s a good body to look at and you can check their website and then use that as a resource. Human Rights Tribunal of course has its own website and you can always go to their website, and they have a lot of resources, and they actually have all the forms and stuff that you need for your Human Rights matters. So it’s a it’s a good place for you to go, understand some of the issues, read their resources, all of the laws, rules, decisions, they’re all here. You can understand the procedure and then benefit from that. And all the forms are here, you can actually have these forms and smart forms, which you can actually complete online and then file electronically, but all the forms that are used in Human Rights matters in Ontario are provided by Human Rights Tribunal of Ontario.

Okay so what do you want to keep in mind, is that the most important part that you want to remember is that whether your specific issue comes under the definition of discrimination or not because if it doesn’t you will be in the wrong place going to the Human Rights Tribunal will not help you. Then you want to be very clear where do you want to file your complaint, should it be filed as a grievance procedure should it be filed with the Human Rights Tribunal, or should you commence a court action in Ontario. Also you want to make sure that you line up your resources so that whatever help you need with respect to the processing of your application you have that lined up. And hopefully you’re able to present your case in a better form to the tribunal or to the court.

We’ll keep building on this information but we at least wanted to tell you what the basic process is to file a Human Rights application and what are some of the resources you need to go if you want to do some further research. We’ll keep building on it in our future lectures and if you have any questions or any comments please share with us and we’ll be happy to include more topics and more issues with respect to Human Rights matters. Thank you for watching.

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