Written on behalf of Peter McSherry

When an employee believes their human rights have been infringed on in the workplace, they may file a human rights claim. Employment is listed in Ontario’s Human Rights Code as one of the areas in respect of which a complaint may be filed, if the complainant has experienced discrimination in their employment on the basis of one of the grounds enumerated under the Human Rights Code. Such grounds include discrimination on the basis of race, age, disability, ethnicity or gender.

In respect of claims of discrimination in the workplace, both employers and employees should be aware that an employee may make a claim of discrimination as a result of comments or actions of a client, coworker or manager of the employee. Moreover, when the person accused of engaging in the discriminatory behaviour is an employee, and was acting in their capacity as an employee at the time the comments were made and/or behaviour engaged in, then the employer may be held vicariously liable for that employee’s discriminatory actions. One such example is provided in the recent decision from the Ontario Human Rights Tribunal in Kenney v Thames Valley District School Board, which dealt with a complaint of discrimination in employment on the basis of race, amongst other things.

Teacher Alleges Discrimination at Work

The complainant in Kenney v Thames Valley District School Board, (“WK”) identifies as an Indigenous person who is a member of the Anishinabek nation in Ontario. He was employed by the respondent Thames Valley District School Board as a teacher in the technology department. The individual respondent (“JP”) was also a teacher at the same school. In WK’s complaint, he alleged that he had been discriminated against in his employment on the basis of race, as his coworker, PJ, had made several racist comments to or about him.

In particular, during a meeting between WK, PJ and the principal of school, Mr. Smith, PJ stated that WK “treats the tech room like his own personal reservation.” Moreover, PJ had called WK a “fat lazy Indian” during a conversation with another coworker, and had suggested that WK “should transfer to Saunders to be with more of his own kind” referencing another school in the district.

School Board Engages External Investigator

In response to WK’s complaint, the Thames Valley District School Board engaged an external investigator to examine the complaint. That report (the “McNair Report”) noted and accepted the evidence with respect to all three of the comments made by PJ, and included an acknowledgement that the “personal reservation” comment “was a plain reference to [WK’s] First Nation background”. However, the investigator’s report ultimately concluded that the complaint against PJ was “unsubstantiated”.

The School Board accepted this conclusion and made the decision to transfer both parties to different schools. As a result, WK was transferred to a new school in September of 2017, against his wishes, and PJ was transferred to a different school in September of 2018.

Human Rights Claim Justified

The Human Rights Tribunal noted at the outset that, in order to “successfully establish discrimination, an applicant must prove on a balance of probabilities that discrimination was a factor in the respondents’ actions. A balance of probabilities means that the Tribunal must determine whether it is more likely than not that the violations of the Code alleged by the applicant occurred.”

In this case, the Human Rights Tribunal was convinced by the evidence and the testimony of multiple witnesses that PJ had, in fact, made the remarks as alleged by WK. Moreover, the Human Rights Tribunal also concluded that “I have no doubt that these statements were references to the applicant’s Indigenous heritage and were meant to demean and disparage the applicant and did in fact do so. Accordingly, in making these statements, [Patrick] discriminated against the applicant on the bases of race, colour, ancestry, place of origin and ethnic origin, contrary to the Code”.

Employer Held Vicariously Liable

The Human Rights Tribunal pointed out that, under section 46.3(1) of the Human Rights Code, an employer is vicariously liable for the actions or inactions of an employee that occur in the course of their employment. As further noted, “this section does not limit an employer’s liability to only the actions of supervisory or managerial employees. There is no question that the individual respondent made the discriminatory remarks in the course of his employment.” Further, he had made the remarks to fellow employees, on the employer’s property. In these circumstances, Thames Valley District School Board was vicariously liable for PJ’s racist actions toward WK.

Moreover, the Human RIghts Code imposes upon employers an obligation to provide its employees with a discrimination-free work environment, which includes a duty to investigate any complaints of discrimination. The tribunal noted that Mr. Smith had reported the “personal reservation” comment to his Superintendent immediately after the meeting between himself, WK and PJ had taken place. However, the Superintendent apparently did nothing with that report. In these circumstances, the Human Rights Tribunal was satisfied that the Superintendent had breached their obligation to reasonably investigate – a breach for which Thames Valley District School Board was also found vicariously liable.

Transfer to New School Found to be Unreasonable

In regard to the fact that Thames Valley District School Board had engaged an investigator to examine WK’s allegations of racism, the Human Rights Tribunal noted that the McNair report’s conclusion (that the complaint of discrimination was unsubstantiated) had completely contradicted its acceptance of Mr. Smith’s testimony that PJ had indeed made the “personal reservation” remark and that it was a clear reference to WK’s heritage.

The Human Rights Tribunal determined that, “in these circumstances, the organizational respondent’s reliance on the Report was unreasonable”, which meant that Thames Valley District School Board had also failed to reasonably investigate WK’s complaint, in breach of the Human Rights Code. Moreover, WK’s transfer to a different school was found to have also been unreasonable, given that the complaint against him was unsubstantiated.

Remedies Ordered Against Personal and Organizational Respondents

Having found that WK had been discriminated against in his employment on multiple grounds, including race, the tribunal ordered PJ to pay $2,500 for injury to WK’s dignity, feelings and self-respect. As Thames Valley District School Board had been found vicariously liable, they were ordered to pay WK $20,000 on the same basis. The Superintendents of the School Board and Patrick were also ordered to complete the Ontario Human Rights Tribunal e-learning module “Call It Out: Racism, Racial Discrimination and Human Rights” and to furnish the Human Rights Tribunal with proof of completion of the course within the defined timeline.

Contact the Law Office of Peter A. McSherry for Assistance With Your Discrimination Claim

If you have been discriminated against during the course of your employment, contact Guelph employment lawyer Peter McSherry for guidance on the discrimination complaint process. We proudly serve clients throughout Southwest Ontario with their employment-related needs. Whether your claim is related to discrimination, wrongful or constructive termination, our employment law team will ensure you receive the compensation you deserve. Contact us online or by phone at 519-821-5465 to schedule a confidential consultation with one of our team members.