How To Defend A Human Rights Application?
In Ontario, the?Human Rights Code?(the “Code”) protects employees, tenants, contractors, customers and workers from discrimination and harassment based on protected grounds. The grounds include, but are not limited to, disability, citizenship, place of origin, sex, race, ethnic origin, colour, ancestry, age, creed, sexual orientation, and gender expression.?The protection under the?Code?applies to five different areas, including employment, the provision of services and housing.?A person alleging discrimination and/or harassment on one of the protected grounds can file a Human Rights Application (“Application”) before the Human Rights Tribunal of Ontario (the “Tribunal”).
If you have been named as a Respondent in an Application before the Tribunal, you must file a Response. A Response is a formal legal document filed with the Tribunal to address the allegations in an Application. In the Response, you can give your version of facts, deny the allegations and defend your actions using the defences listed in the?Code. The Response should be filed within 35 days after the Tribunal sends you a copy of the Application. Defending a Human Rights Claim can be an uphill task if the defending party does not know the available defences and how to properly plead them.
This article will explain the most common defences to a Human Rights Claim and when to plead them.
Request for Early Dismissal
The Tribunal allows a Respondent to request an early dismissal of the Application in certain circumstances. The Tribunal may dismiss the Application without needing a full response when:
Accommodating the Applicant would Cause Undue Hardship
The?duty to accommodate?can arise in many different situations because of a person’s age, disability, family status, marital status or any other protected ground listed in the?Code.
Examples of accommodation include but are not limited to:
However, the duty to accommodate has limits. The employers, service providers and landlords are required to accommodate unless doing so would cause undue hardship.
The?Code?mentions three considerations to determine whether an accommodation would cause undue hardship:
1.Cost
The organization must prove that the cost of accommodating was so high that it would have altered the nature of the enterprise or substantially affected its viability.
2. Any Outside Source of Funding
Before using the undue hardship defence, the Respondent must also show that they tried to take advantage of any available government funding (or other) program to help with such costs.
3. Health and Safety Risks
If an organization can show that accommodating would have caused health and safety risks, it could be considered an undue hardship.
The threshold for proving undue hardship is quite high. For example, an employer might be able to raise a defence of undue hardship if the costs of accommodating a disabled employee were exponential. They cannot claim undue hardship if accommodating the employee would have been simply expensive or inconvenient.
Further, if the Applicant shows that the Respondent could have accommodated them or even provided temporary accommodations, the Respondent could be liable for violating the?Code. For this reason, an organization should consult with legal counsel when an employee requests accommodation.
The Employee is Incapable of Performing their Essential Duties due to Disability
An employer can defend an Application by showing that the employee cannot perform an essential requirement of their job due to disability. However, the employer must satisfy the Tribunal that they could not have accommodated the person without undue hardship.
The onus is on the employer to show the incapacity on the Applicant’s part and make a claim of undue hardship.
The Applicant Did Not Participate in the Accommodation Process
Sometimes a respondent can assert they fulfilled their duty to accommodate because the Applicant did not participate in the accommodation process.
For example, an employee who refused to provide a medical note detailing their disability might not be able to assert a failure to accommodate.
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However, a Respondent must exercise caution while pleading the Applicant did not take part in the accommodation process. If the Applicant’s accommodation needs are apparent, the Respondent may not defend by asserting that the Applicant did not request an accommodation.
The Discriminatory Standard or Policy was a?Bonafide?Occupational Requirement
An employer can also defend a Human Rights Claim by showing that the discriminatory standard, rule, or policy at their workplace is a?bonafide occupational requirement.
The Tribunal analyses whether a requirement is reasonable and?bonafide?after the Applicant has made out a?prima facie?case of discrimination.
To prove that a discriminatory rule or standard is a?bonafide?occupational requirement, the employer must establish that the standard or rule:
Other Defences
The?Code?lists various other defences the Respondent can raise depending on the allegations. For instance, where an employee alleges discrimination based on citizenship, the employer can defend the claim by showing that the discrimination was authorized by law.
How A Lawyer Can Help
The Tribunal process consists of different stages, namely, the pleadings stage, mediation, and the hearing.
A human rights lawyer knows the ins and outs of the Tribunal process. They can help your organization defend allegations of human rights violation in the following ways:
The best way to defend a Human Rights Application is to avoid it altogether. Every organization should explore the option of hiring a?chief legal officer?(CLO), otherwise known as general counsel.
A CLO heads a company’s legal department, supervises the work of the in-house legal team and advises on various human rights and legal issues. Their job description includes reporting to the chief executive officer.
A CLO provides a wide range of legal services to the company, including but not limited to advising:
Conclusion
Defending a Human Rights Application can be stressful, as it requires engaging in a lengthy and costly legal battle. The success of your case depends on the defences you plead and the justifications you give for your actions.
A slight error in the pleadings can seriously impact the viability of your defence. A human rights lawyer can help you assess the strength of your defence and guide you through the entire process to give you the best chance of success.
Contact Us
If you need any help defending a Human Rights Claim, our team of experienced employment and human rights lawyers at Achkar Law can help. Please contact us either by phone at?+1-888-730-0146?or by email at?[email protected], as we are always happy to assist.