Frequently Asked Questions
- What is the purpose of the Ontario Human Rights Code (Code)
- The purpose of the Ontario Human Rights Code (Code) is to protect Ontarians from discrimination in important areas of their daily lives, such as in renting housing, in the workplace or in obtaining services, such as educational or police services. As such, the University of Guelph may be broadly considered as a service organization and a workplace. If you believe your rights under the Code have been infringed, it will help if you understand how discrimination can be proved before you consider filing a formal complaint with the Office of Diversity and Human Rights.
How Is Discrimination or Harassment Proved?
- Many complainants do not have direct evidence of discriminatory conduct, such as a witness to a racial slur or to sexual violence or a written record that shows that they were treated differently because of their gender expression, for example, or their sexual orientation. Discrimination is often hidden or subtle and can be the product of unspoken beliefs, biases and prejudices. Similarly, harassment may occur in situations where only the respondent and the complainant were present. This means that, in many cases, discrimination and harassment can only be proved by drawing inferences and conclusions from the circumstances surrounding an instance of negative or unfair treatment.
- Not all unfair or negative conduct is discrimination within the meaning of the Code. The Office of Diversity and Human Rights (DHR) does not have the authority to invesitgate cases involving general claims of unfairness or harassment that is not linked to Code discrimination.
- What is discrimination?
- Discrimination usually begins with a distinction or difference in how a person is treated that has a negative impact on that person. For the negative differential treatment to be discriminatory, it must be tied to one of the protected personal characteristics set out in the Code. Even where a person is treated the same way as others, discrimination can occur if the same treatment has a different and negative impact on the person because of a protected personal characteristic such as disability. The Code prohibits negative treatment based on any of the following:
- Race, colour
- Place of origin
- Ethnic origin
- Creed (religion)
- Sexual orientation
- Gender identity and expression
- Sexual solicitation or harassment
- Marital status
- Family status
- Receipt of social assistance (in housing only)
- Pardoned criminal record (in employment only).
- These protected personal characteristics are referred to as “prohibited grounds of discrimination”.
- The most common grounds of discrimination relied upon in complaints submitted under the University of Guelph's Human Rights Policy are disability, gender/sex, and race and related grounds.
- What is Harassment?
- The Code also prohibits harassment based on a personal characteristic including sex, race or sexual orientation. Harassment means “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
- How do I write a complaint of discrimination or harassment?
- To prove discrimination, you must show that there is a connection between negative treatment that you experienced and one of the personal characteristics (or prohibited grounds of discrimination) listed in the the Code.
- Put another way, to prove discrimination, you need to demonstrate that you were subjected to negative treatment because of your gender, place of origin, family status or any one of the Code-protected personal characteristics. Even if the discriminatory ground (e.g. your race) is only part of the reason (as opposed to the only reason) for the negative treatment, that is enough to prove discrimination under the Code.
- Answering the following questions can help you determine if you have experienced Code-based discrimination or harassment. Before you file a formal complaint, you should consider whether you will be able to articulate the following information in your submission. To make this clearer, we have used the example of disability but the same questions can be asked in relation to any of the personal characteristics listed in the Code.
Do you have a personal characteristic (such as a disability) that is listed as a prohibited ground of discrimination under the Code?
What is that personal charactersistic?
Were you treated differently than others?
Or, if you were treated the same way as others, did this put you in a different position or have a different impact on you because of your disability?
Did this have a negative impact on you? (or put you at a disadvantage compared to others?)
Is there evidence to show a link between the negative treatment or the negative impact that you experienced and your disability?
Is Any Form of Negative Treatment a Human Rights Complaint?
- You may be treated negatively for reasons unconnected to a Code-protected personal characteristic.
- A key consideration in a formal complaint investigation is whether there is a connection between an applicant’s protected characteristic under the Code and negative treatment that they have experienced.
- For example, a University of Guelph staff member who identifies as a Chinese-Canadian is terminated from her employment. As such, she will be able to show that she is a person with a personal characteristic (her race) that is listed in the Code as a prohibited ground of discrimination.
- And if she is the only employee who is fired at that time, she will be able to also prove that she was treated differently from other employees and that the impact (ie unemployment) was negative.
- However, these facts alone will not be enough to prove discrimination on a balance of probabilities, because the connection between the termination and her race also must be proved.
- As such, her complaint submission must refer to factual evidence to demonstrate the connection between her race and the termination.
- Negative treatment v. Negative treatment connected to a protected characteristic under the Code
- Not all differences in treatment are negative and not all negative treatment is discriminatory. To find discrimination, the fact finders have to decide whether the conduct or treatment was truly negative in its impact. Even when a person is treated differently, the fact finders may find that the different treatment did not have a negative impact on the person of a kind that would amount to discrimination under the Code.
- An example might be a situation where an employed Canadian-born white male student is not allowed to participate in a workshop for female students who are survivors of sexual violence. In this case, the man is treated differently, because of his gender, than a woman who qualifies for the program. However, the difference in treatment would not be found to be discriminatory. The man is not really harmed by not being allowed to participate a program that is designed to help individuals who are at a disadvantage by virtue of their gender. Simply put, the Code is designed to help disadvantaged individuals and groups, not those who enjoy a relative advantage.
- What is evidence?
- In deciding a case, the fact finders rely on the evidence presented by both sides during the investigation. The fact finding team weighs the evidence in making its findings of fact, considering its reliability and whether it is useful and relevant to the issues in dispute.
- Facts are proved by evidence. Evidence comes in two main forms – oral and documentary evidence. Simply put, oral evidence is what the complainant, the respondent and the witnesses say during their fact finding interviews. Documentary evidence includes written records as well as photographic, electronic or physical evidence. Examples would be letters, e-mails, minutes of meetings, etc.
- It should be noted that not all evidence may be considered relevant to the issue under investigation.
- Does the protected characteristic under the Code have to be the only factor in an allegedly discriminatory act?
- No. A complainant does not need to prove that discrimination was the sole, or even the primary, factor in the negative treatment that gave rise to the submission. It is enough if one of the reasons for the treatment was discriminatory.
- Do I have to prove the intent to discriminate*?
- No. You do not have to prove that the respondent consciously intended to discriminate against you. An intent or motive to discriminate is not a necessary element in proving discrimination.
- *There is one type of Code breach that does involve proving the intention of the respondent. Section 8 of the Code prohibits “reprisal” against an individual for claiming or enforcing rights under the Code. This means an applicant must establish that a respondent engaged in an action which was intended as retaliation for claiming or enforcing a Code right.
- What level of proof do I need to meet?
- An complainant bears the burden of proof that the discrimination occurred. This means you must be able to prove that it is more likely than not that the protected personal characteristic was a factor in the negative treatment that you experienced. This is called the “standard of proof”. In civil cases, including cases brought before the Human Rights Tribunal of Ontario, this means that you must prove your case on a balance of probabilities. This is sometimes described as “50% plus 1” probability. This is in contrast to criminal cases, where the burden of proof is “beyond a reasonable doubt”.
- In submitting your complaint, you bear the responsibility of establishing a basis for a finding of discrimination. This is sometimes called a “prima facie” case. This means that you must produce your evidence first and must produce enough evidence which, if believed, would support a finding of discrimination and a premise for the University to investigate.
For example. If your application alleges that disability was a factor in negative treatment by your supervisor, there are three initial components of your claim that need to be proved:
- That you have a disability;
- That you were treated in a way that is different from other employees
- That your disability was at least one of the reasons why you were treated differently.
- However, establishing that you have been treated differently and that you are disabled may not be enough to make out your initial or “prima facie” case. If that was enough, then every person with a disability experiencing conflict in the workplace would be able to “prove” discrimination.
- What defenses can a respondent raise against formal complaint?
- By providing evidence to establish a credible, non-discriminatory explanation for their actions, or
- By establishing a statutory defense under the Code that justifies the discrimination.
The above information is adapted from on the Ontario Human Rights Commission's general information about human rights complaints processes. It is not legal advice.