Discrimination in the workplace is a significant problem in Ontario. Understanding what constitutes discrimination and when employers are required to investigate a claim to maintain a fair and lawful work environment is critical for every workplace. When discrimination is suspected, or a complaint is made, conducting effective investigations is crucial for legal compliance and for promoting a safe and inclusive work atmosphere. Identifying and addressing systemic issues that may contribute to a discriminatory work environment is also important. Failing to investigate claims or incidents of discrimination can lead to legal and financial consequences for employers, and employees may lose trust in the company and resulting in decreased morale and productivity in the workplace.

What Constitutes Discrimination in the Workplace?

Discrimination in the workplace occurs when an employee is treated unfairly or unfavourably because of characteristics protected under the Ontario Human Rights Code (the “Code”). In the employment context, the Code-protected characteristics include:

• Age
• Ancestry, colour, race
• Citizenship
• Ethnic origin
• Place of origin
• Creed
• Disability
• Family status
• Marital status (including single status)
• Gender identity, gender expression
• Sex (including pregnancy and breastfeeding)
• Sexual orientation
• Record of offences (only in employment)

Discriminatory practices can manifest in various forms, such as:

• Unequal pay for equal work
• Harassment, including sexual harassment
• Denial of opportunities for promotion or training
• Retaliation for filing a complaint or asserting rights under the Code

While these forms of discrimination might be self-evident, it may be easy to overlook discrimination in less obvious forms, such as systemic discrimination and failure to accommodate.

Systemic discrimination

Systemic discrimination occurs when seemingly neutral policies, practices, or procedures lead to unequal treatment or have a negative impact on individuals from protected groups. Unlike overt discrimination, systemic discrimination is ingrained in the everyday functioning of an organization and can be difficult to identify and rectify, such as:

• Historical practices may disadvantage certain groups because they are no longer compatible with society’s development. The Ontario Court of Appeal affirms that systemic discrimination can result from simply doing things “the way they have always been done” without considering the impact on certain groups.

Failure to accommodate

According to the Code, failure to accommodate is also a form of discrimination. Discrimination may be found when employers fail to make reasonable accommodations for employees who fall under protected grounds, up to the point of undue hardship. Reasonable accommodations may include:

• Modifying workstations or equipment for workers with disabilities
• Offering flexible work hours or telecommuting options for workers with childcare responsibilities

When Must Employers Investigate?

Employers in Ontario have a legal duty to maintain a discrimination-free workplace. This duty is proactive, meaning employers must take steps to prevent discrimination and address it promptly when it occurs. An employer must investigate in two scenarios:

1. Formal Complaints: When an employee files a formal complaint alleging discrimination, the employer is obligated to investigate the claim thoroughly. In some cases, complaints may be submitted anonymously or by third parties. However, employers are still obligated to conduct an investigation.
2. Informal Reports or Observations: Even if a formal complaint is not filed, if an employer becomes aware of potential discrimination through informal reports or direct observation, they must investigate. The Ontario Superior Court of Justice affirmed this in Metrolinx v. Amalgamated Transit Union, Local 1587 (2024) (“Metrolinx”), and recognized that the victims may be reluctant to report discrimination and harassment. The court also emphasized that this obligation to investigate is not only related to the Code but also an employer’s mandate under the Occupational Health and Safety Act.

When Investigation Might Not Be Required?

There are limited circumstances where a full investigation may not be necessary:

1. False or Malicious Claims: If it is determined that a claim is made maliciously or is entirely baseless without any factual foundation, an employer might decide not to pursue a full investigation due to lack of merits. However, this determination should itself be based on preliminary inquiries. Additionally, the employer’s belief that the allegation cannot be substantiated does not necessarily mean that the complaint is meritless. Therefore, early engagement of legal counsel is recommended.
2. Special Programs: The Code provides that creating a program to reduce difficulty or financial inequality, or to support underprivileged individuals or groups in attaining equal opportunities, does not violate the Code ( 14 (1)). Therefore, complaints about the implementation of special programs may not trigger investigations.
3. Informal Resolution: Sometimes, issues can be resolved informally and to the satisfaction of all parties involved without a formal investigation. For instance, when an issue is resolved by workplace mediation, the employer is relieved from the obligation to investigate.

Consequences of Not Investigating

Failing to investigate a discrimination claim can have severe consequences for an employer.

First, employers are exposed to legal liability. Employers who fail to investigate discrimination claims can be held liable under the Code. This can lead to costly legal battles and significant financial penalties. In Kaur v. 1865898 Ontario Inc. (2020) (“Kaur”), the Ontario Human Rights Tribunal held an employer’s failure to investigate complaints of sexual discrimination and harassment was a violation of the Code and contributed to a poisoned workplace environment. As a result, the employer was ordered to pay the former employee $40,000 as monetary compensation for injury to dignity, feelings and self-respect.

There is also a risk of reputational damage. Failing to address discrimination can damage an organization’s reputation, leading to a loss of trust among employees, customers, and the public. This can have long-term impacts on the business. For instance, the Toronto Police Association was criticized for its failure to protect police officers facing harassment or discrimination.

Additionally, as demonstrated in Kaur, discrimination and failure to address it can lead to a toxic work environment, reducing overall employee morale and productivity.

Proper Investigation is Necessary for a Just Resolution

Every case of workplace discrimination is unique, with its own set of circumstances and details that merit careful consideration. In Metrolinx, the Court remitted the matter back to a different Arbitrator to reconsider the appropriateness of the termination. The Court also reiterated the principle for evaluating appropriate action to address sexual harassment, which is a common form of workplace discrimination and harassment. The principle was confirmed in Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011 (2013): “[N]ot every case of sexual harassment or assault demands a discharge. There are cases where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the continuum and the grievor has demonstrated remorse for his behaviour.”

In light of this, employers should objectively evaluate the specific conduct involved in each situation to determine the most appropriate response. Handling workplace discrimination with a thorough and proper investigation plays an essential role in this process. This approach allows for a decision as to whether termination is warranted or if a lesser penalty might be more fitting for an incident of discrimination.

Investigate Now

Thorough investigations into discrimination claims within the workplace are not just a legal obligation for employers in Ontario but a cornerstone of maintaining a respectful, inclusive, and productive work environment. They serve as a critical tool in uncovering and addressing not only overt discrimination but also more insidious forms such as systemic discrimination and failure to accommodate. By diligently investigating discrimination claims and incidents, employers can identify and rectify issues before they escalate, thereby averting significant legal, financial, and reputational consequences. Additionally, a commitment to rigorous investigations underscores an organization’s dedication to fairness and equality, fostering a culture of trust and safety among its employees.

Losing your job can be a stressful and emotional experience. Whether you were terminated due to downsizing, performance issues, or other reasons, it is essential to understand your rights and options. If you have been let go, here are some key things you need to know before signing any documents and as you navigate this challenging situation. Most employers offer only the minimum, which is often about a quarter or even less of what you are owed. Why? Because employees sign without seeking legal advice.

Do I Have to Sign a Termination Letter Right Away?

When your employer informs you of your termination, they may ask you to sign a termination letter immediately or within seven days. You do not have to sign immediately or within any timeframe they provide. It is crucial to pause and get legal advice immediately.

Understanding Your Rights

Under Ontario’s Employment Standards Act, 2000 (“ESA”), you have certain rights, such as the minimum statutory notice of termination or pay in lieu of notice, severance pay, etc. However, absent an enforceable termination clause that limits your termination entitlement to the ESA minimum, you are entitled to common law reasonable notice, which is generally much more than the ESA minimum standards.

Consequences of Signing Severance Documents

Termination letters often include a “full and final release” to prevent terminated employees from pursuing further rights after they sign it. In addition to statutory or contractual entitlements, employers usually offer extra benefits in exchange for signing this full and final release, such as additional severance pay, extended benefits, outplacement services, or other forms of compensation.

By signing the release, you agree to receive the extra benefits and give up your right to sue for any additional claims related to your employment or termination. In Hall v. ESC Automation Inc., 2023 HRTO 1676, an employee’s application at the Human Rights Tribunal of Ontario (“HRTO”) was dismissed because the employee had already voluntarily signed a full and final release. Therefore, they lost the right to submit the human rights claim to pursue extra entitlements.

Your Right to Seek Legal Advice

Your employer cannot force you to sign any termination documents right away. You have the right to seek advice from an independent lawyer before signing. If you are pressured or rushed into signing a severance agreement or final release without enough time to seek legal advice, you could challenge the validity of these documents. In Rubin v. Home Depot Canada Inc., 2012 ONSC 3053, the Ontario Superior Court of Justice found the employer pressured the employee, suggesting that he would only receive termination package benefits if he signed the termination documents, making the employee believe he had no other option. As a result, the signed termination letter and release were unenforceable. The employee was awarded a 12-month reasonable notice period under common law, almost doubling the 28 weeks offered by the employer.

Understand Your Options

You are not obligated to sign any termination documents, especially when the termination package is less than what you are legally entitled to. By choosing not to sign the release, you can retain the right to pursue additional claims or entitlements under common law and start your negotiation for a more favourable package with your former employer.

If the severance package is far below your legal entitlement and the negotiation does not result in any improvements, you may have to resort to legal procedures. Under Ontario’s Limitations Act 2002, you must file a claim in court within a maximum of two years from the date of termination to avoid losing the right to sue. Further, if your termination is a result of discrimination under the Ontario Human Rights Code (“Code”), you can also consider filing a case with the HRTO within one year from the termination date.

Practical Steps

Here are some practical steps to take after being let go:

1. Engage Legal Counsel: Have a qualified lawyer review any severance documents. These are complex documents understood by lawyers. Even a few words misplaced can entitle you to payment four times the minimum ESA standards.
2. Document Everything: Keep records of conversations, emails, and any evidence of your termination. This documentation can be crucial if you decide to pursue legal proceedings.
3. Timelines Matter: Contacting a lawyer immediately is your best strategy to protect your rights. While you have two years to sue there are obligations to mitigate by finding a job. Ultimately remember the two-year limit under Ontario’s Limitations Act 2002, and the one-year limit under the Code. If you are considering a legal proceeding, do not miss the deadlines.

Being let go is never easy, but do not rush to sign anything, even if your employer asks you to sign the severance documents within a specific timeframe. Consult an employment lawyer to ensure you are treated fairly and receive the compensation you deserve. Signing a release usually forfeits your right to seek additional compensation or take legal proceedings against your former employer. Ensure you fully understand the implications before signing.

Most employers will, at some point during the lifetime of their business, have to deal with a workplace incident that results in a harassment or discrimination complaint. Although you can always hope no such incidents occur, you should be prepared to deal with them if they do. In some instances, this may require a workplace investigation.

The challenge for many employers is that it can be hard to know where to start.

Creating a solid foundation

A crucial first step for dealing with workplace harassment, which includes sexual harassment and violence, is to develop, post, regularly update, and reinforce anti-harassment policies that comply with Ontario’s Occupational Health and Safety Act (“OHSA”). The OHSA requires employers to develop written workplace violence and harassment policies, and then review and update them yearly. Every workplace harassment policy should feature the following:

• Clearly articulated definitions of discrimination and harassment that align with the Code and OHSA;
• Measures and procedures that enable employees to make complaints without fear of reprisal;
• A procedure for how the employer will address and investigate incidents and complaints of workplace harassment and discrimination.

Regarding discriminatory harassment and discrimination, Ontario’s  Human Rights Code (“Code”) recommends discrimination and harassment policies, which cover discrimination or harassment that occurs in the workplace, based on any of the prohibited grounds, such as Age, Gender, Race, Colour, Ancestry, Creed (religion), Ethnic Origin, Citizenship, Sex  (including pregnancy, gender identity), Sexual Orientation, marital Status, Disability, Receipt of Public Assistance or Family Status. Developing workplace harassment policies, including Code-based discrimination or harassment, ensures you satisfy your statutory obligations pursuant to the OHSA and Code.

If you do not already have workplace harassment policies in place, you have contravened the OHSA, and should immediately rectify the breach. Contacting an experienced employment lawyer can begin this process.

Before commencing a costly investigation, consider mediation

Mediation can be a cost effective and efficient method to resolve a dispute in instances where the allegations are not serious and do not trigger an obligation to investigate. For example, in a situation where there is a workplace conflict, but harassment that meets the OHSA definition has not been alleged. There are numerous benefits to mediation, such as:

• Early mediation can prevent workplace conflicts from escalating into more serious instances of workplace harassment or discrimination;
• Mediation is less costly and more time efficient than a workplace investigation;
• Mediation is less disruptive to the workplace; and
• Mediation can lead to reconciliation between the parties and a mutually agreeable outcome.

The Investigator

If mediation is not an option, your first step is to consider what kind of investigation is appropriate for the situation. Investigations are costly if you need to hire an external investigator, and not every situation warrants it.  However, if you err and conduct an internal investigation with inexperienced staff, or staff that may have or be perceived to have a bias, there could also be costly consequences. If the situation involves senior management, or there are complex allegations, you should find an experienced external workplace investigator. Where you might also need a legal opinion along with the investigation and findings, you should seek out a lawyer with investigation experience.

Whether you choose to an internal or external investigator, bear in mind that the ideal investigator is familiar with OHSA, as well as the Code where discrimination is also alleged, and should also be familiar with workplace law and the employer’s policies and practices.

Dealing with the results of an investigation

The investigator will provide you with a report on the findings and recommendations of the investigation. In some instances, you may ask the investigator for a legal opinion to accompany the report. If you do, you must hire a lawyer with workplace investigation experience.

Depending on the results of the investigation, you may be required to take action. For example, if the investigator concludes that harassment or discrimination did, in fact, occur, you could be required to take disciplinary measures against the respondent, up to and including termination for cause in serious situations.

Employees who have been recklessly terminated may claim significant damages against their employer. In Luckman v. Bell Canada, 2022 CHRT 18, a recent Canadian  Human Rights Tribunal‘s decision, the employer, Bell Canada (“Bell“), was ordered to pay more than $120,000 in damages to their former employee, Mr. Luckman, for recklessly terminating him. This is a hefty price tag for terminating an employee who had worked for only about a year.

The facts were not complicated. During Mr. Luckman’s time at Bell,  Mr. Luckman was diagnosed with cancer. As a result, he started a medical leave and returned to work. Bell set up a gradual return to work schedule to accommodate his weakened health conditions. However, Mr. Luckman felt overwhelmed by the work due to this medical limitation and raised the issue with his supervisor. Rather than provide further accommodations, Bell terminated the employment agreement, first citing performance as the reason, then altering the reason of termination to corporate restructuring. Nevertheless, HRTO member, Mr. Pannu, found Mr. Luckman’s disability (his cancer) was a factor in his termination, and thus Bell’s termination was discriminatory.

In addition to other damages’, Mr. Pannu also awarded special damages against Bell for their “reckless termination.” He found Bell’s termination was reckless as, among other reasons, even though Mr. Luckman’s medical limitations were known to Bell, no one seemed to have “considered whether firing an employee recovering from cancer surgery might be discriminatory.”

How to support your argument of discriminatory firing

While it is important for employers to accommodate employee scenarios that are under protected grounds, you need to do a number of things to protect your position should you be “recklessly” fired.

• Clearly communicate accommodation needs: As this case demonstrates, it is important for all employees to communicate any accommodation needs with employers. Document all communication via emails or notes, as they may become important for later disputes. Requesting accommodation can not only make the day-to-day less challenging at work, but it also better protects your job should you find yourself in a difficult situation. Remember that accommodation needs should be communicated over time, so your employer understands whether the accommodations set up are meeting your specific needs.
• Understand what is considered protected grounds: Termination due to job performance or corporate restructuring might still be discriminatory if protected grounds under the Canadian Human Rights Tribunal was a factor that affected your job performance and that played a role in your employer’s termination selection process during corporate restructuring.
• Consult with an experienced employment lawyer: If you feel like your job may be at risk after you have requested accommodations at work, engage a lawyer early on. As the case has shown, even sophisticated employers, such as Bell, can act recklessly. They fired an otherwise high-performance employee to boost efficiency, but the decision backfired.