Flawed Analysis Sends Matter Back to HRTO


Divisional court has overturned portions of a Human Rights Tribunal of Ontario decision, and a general damages award of $20,000, sending the questions back to the tribunal for a re-hearing.

Court overturned the part of the decision finding that the dismissal was discriminatory. The judicial review also overturned the award of general damages, finding that the award would have been different if the Tribunal had come to different conclusions after an analysis.

In human rights matters, a claimant must advance facts that could lead to an inference that an action was discriminatory. Once that is established, the onus shifts to the employer to defend its decision.

An adjudicator provided a one-sentence analysis for finding that the claimant’s dismissal was discriminatory.

The retail-setting case was brought by an employee who claimed harassment from co-workers and a supervisor. Grounds were disability, perceived disability and perceived sexual orientation. He was dismissed after a fist-fight at work, and claimed the dismissal was discriminatory. Court found the adjudicator should have applied an analysis to determine whether the employee had provided sufficient evidence to shift the onus to the employer to account for its decision on the termination.

The employer did not challenge the finding of harassment, but did challenge the finding of discrimination in the dismissal.

Further reading:

Judicial Review Decision
Walton Enterprises v. Lombardi, 2013 ONSC 4218 (CanLII)

HRTO Decision

%d bloggers like this: