Reviewing the Ontario Human Rights System

recently submitted by the Ontario Human Rights Review to the Honourable John Gerretsen, Attorney General of Ontario
advocates for some potentially profound changes to the human rights system in
this province. The report was prepared by Andrew Pinto, a lawyer appointed by
the province to take stock of the human rights system. In Pinto’s determination
the human rights system in Ontario is a passably decent system, but one which
has much room for improvement. In the report, Pinto made a total of 34
recommendations to improve the system. Two particular aspects of the report
stand out.
“Significantly increased” Damage Awards
Recommendation 10 encourages a substantial increase
in the available damage awards in cases of discrimination, stating:
The Tribunal should reconsider its current approach to general damages
awards in cases where discrimination is proven. The monetary range of these
awards should be significantly increased.
If Pinto’s advice is
heeded and the recommendation helps to reform and increase the upper limits of
damages that may be awarded in discrimination cases, the change will have a
tremendous impact on employers and workers alike. Such an increase could have
the positive effect of encouraging employers to exercise more diligence in
preventing discrimination from occurring in the workplace. Take, for instance,
the case of
v. Janus Jones
, where a disabled employee who did nearly identical work to the
non-disabled employees was paid only $1.25 per hour, much less than the
non-disabled employees who received minimum wage.

Worse still, the $1.25 an
hour paid to the disabled employees represented a raise from the $1.00 per hour
“training honourarium” the disabled worker(s) had been paid! This is where
action on Recommendation 10 could be especially advantageous.  If the potential costs of damage awards
outweighed the financial benefits of discriminating against employees,
discrimination simply wouldn’t make good business sense and employers would be
prompted to treat employees fairly. In other words, if ethics will not guide
some employers, perhaps fear of higher damage awards will be sufficient
incentive to treat employees with dignity and respect.

The Jones case would never have occurred if Janus Jones Inc. was a
unionized workplace where, apart from the protection of the collective
agreement, the complainant would have had additional recourse to arbitration
grievance procedures. In this respect, the Jones
case is but another testament to the enduring importance of organized labour.  The Jones case may be a good example, but
maybe it can still serve some good as a horrible warning of the gross power
imbalance between employers and employees that exists when the employees are
not unionized.

Mandatory Workplace Human Rights

As discussed in an earlier
post, the Bill 168 amendments to the OHSA now require employers to have a
workplace violence and harassment policy in place. Pinto’s report suggests it
may be advisable for employer’s to be required to have workplace human rights
policies. On its face, it is hard to disagree with Pinto’s suggestion.

However, if a new Bill is
created to mandate workplace human rights policies, it must not carry the same
failings as Bill 168. The Bill 168 amendments have resulted in much uncertainty
as to the Ontario Labour Relations Board’s ability, or lack of ability, to
protect employees from employer reprisals. If workplace human rights policies
become statutorily mandated, any Bill requiring such policies must clearly
stipulate that employer’s cannot seek reprisals against employees who make
complaints under those same policies. Like violence and harassment policies, human
rights policies are too important to be mired in confusion. Pinto’s suggestion
is a sound one, but only if properly crafted
by the Legislature.

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