Proving Discrimination

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.

In order to claim and protect your right to be free from discrimination, it is important to understand what “discrimination” is and what is prohibited under the Code as discriminatory conduct. 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 commencing a legal proceeding.

In Ontario, if you think that you have been subjected to discrimination, you can file a legal application at the Human Rights Tribunal of Ontario (Tribunal). Your application will proceed to a hearing before the Tribunal if it is not resolved by you and the alleged discriminator (called the respondent). The obligation is on you as the applicant to prove that the respondent’s conduct amounted to discrimination.

The Human Rights Legal Support Centre (HRLSC) provides legal and support services to assist individuals who have experienced discrimination, including assistance in pursuing a legal application to the Tribunal. In addition to providing legal advice and representation, the HRLSC has Information Sheets and Guides on its website to assist members of the public in pursuing a claim of discrimination at the Tribunal. This Information Sheet focuses on what is needed to prove discrimination under the Code.

Many applicants to the Tribunal do not have direct evidence of discriminatory conduct, such as a witness to a racial slur or to sexual harassment or a written record that shows that they were treated differently because of their age, for example, or their sexual orientation. Discrimination may be hidden or subtle and can be the product of unspoken beliefs, biases and prejudices. This means that, in many cases, discrimination can only be proved by drawing inferences and conclusions from the circumstances surrounding an instance of negative or unfair treatment.

To prove discrimination, you must be able to show at your hearing that it is more likely than not that, in all of the circumstances, discrimination was a factor in the events or actions that gave rise to your application.

In understanding how to prove discrimination, a good place to start is with the legal definition of discrimination. Not all unfair or negative conduct is discrimination within the meaning of the Code. The Tribunal does not have the power to hear cases that involve general claims of unfairness not tied to Code 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 personal characteristics protected under the Code are listed below. The Code prohibits negative treatment based on any of the following:

• Race, colour
• Ancestry
• Citizenship
• Place of origin
• Ethnic origin
• Creed (religion)
• Sexual orientation
• Gender identity and expression
• Gender/sex
• Pregnancy
• Sexual solicitation or harassment
• Marital status
• Family status
• Age
• Disability
• 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 applications under the Code are disability, gender, race/colour, ethnic origin and place of origin, pregnancy and age.

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”.

To prove discrimination, you must show that there is a connection (also referred to as the nexus or the link) 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 show at your hearing 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 discrimination that can be proved in a hearing before the Tribunal. 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.

1. Do you have a personal characteristic (such as a disability) that is listed as a prohibited ground of discrimination under the Code?
2. Were you treated differently than others?
3. 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?
4. Did this have a negative impact on you? (or put you at a disadvantage compared to others?)
5. Is there evidence to show a link between the negative treatment or the negative impact that you experienced and your disability?

In many discrimination cases, there is no dispute about questions 1 to 4 above. The last question is often the most difficult factual issue for the Tribunal to determine: were you treated negatively because of your disability (or any other personal characteristic that is a prohibited ground of discrimination under the Code).

Before you file a discrimination claim, you should consider whether the Tribunal will be able to answer these five questions in your favour. This Information Sheet will help you understand some issues that could arise in answering the questions.

An applicant may be treated negatively for reasons unconnected to a Code-protected personal characteristic. As discussed above, a key consideration in a Tribunal hearing is whether there is a connection between an applicant’s protected characteristic under the Code and negative treatment that they have experienced.

For example, if an employee who identifies as Arab-Canadian is terminated from her employment, she will be able to show at a hearing that she is a person with a personal characteristic (her race) that is listed in the Code as a prohibited ground of discrimination. This fact will likely be undisputed at the hearing, which means that the employer is unlikely to take a position that the employee is not a racialized person. And if she is the only employee who is fired at that time, she will be able to prove that she was treated differently from other employees and that the impact (ie unemployment) was negative.

However, this will not be enough to prove discrimination at the hearing. The connection between the termination and her race also must be proved. The applicant must bring factual evidence to the hearing to demonstrate the connection between her race and the termination. This would include her own testimony at the hearing about how she was treated as an employee.

Not all differences in treatment are negative and not all negative treatment is discriminatory. Sometimes the person alleged to have discriminated (usually an employer, landlord or business) will question whether the applicant was really harmed by being treated differently. To find discrimination, the Tribunal has to decide whether the conduct or treatment was truly negative in its impact.

Even when a person is treated differently, the Tribunal can 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 man is not allowed to register in a community program designed to help racialized immigrant women who are isolated at home. In this case, the man is treated differently, because of his gender, race and place of origin, 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 into a program that is designed to help individuals who are at a disadvantage by virtue of their recent immigrant status, gender and race. Simply put, the Code is designed to help disadvantaged individuals and groups, not those who enjoy a relative advantage.

The term “substantive discrimination” was developed by human rights tribunals and the courts to describe negative treatment that impacts on individuals who are already disadvantaged. The Code does not aim to eliminate all differences in treatment. The purpose of the Code is to address differences or distinctions that have the effect of perpetuating disadvantage or promoting negative stereotypes about individuals who have a protected personal characteristic under the Code.

In deciding a case, the Tribunal relies on the evidence presented by both sides at the hearing. The Tribunal weighs the evidence in making its findings of fact, considering its reliability and whether it is useful and relevant to the issues in dispute.

Fact finding is a very important part of the Tribunal’s job. Most cases are decided based on the facts. Each case is different and, while other previous cases may be similar, the facts of a particular case are often what drive the Tribunal’s conclusion about whether discrimination is proved or not.

Facts are proved by evidence. Evidence comes in two main forms – oral and documentary evidence. Simply put, oral evidence is what the applicant, the respondent and the witnesses say under oath at a Tribunal hearing – referred to as “testimony”. Documentary evidence includes written records as well as photographic, electronic or physical evidence. Examples would be letters, e-mails, minutes of meetings, etc. The Tribunal will only allow the parties to introduce evidence at the hearing if it is relevant to the issues to be decided.

See the HRLSC’s Information Sheet on Disclosure and the Applicant’s Guide to Preparing for a Hearing for a fuller discussion of how to identify and prepare your evidence for your hearing. You will find examples of what evidence will be useful for you in preparing for a hearing.

An applicant cannot always rely on testimony or written documents that directly demonstrate that their race, for example, or another personal characteristic in the Code, was one of the reasons why they were treated negatively. The evidence in discrimination cases is often indirect evidence. This is also called “circumstantial” evidence. Cases that rely on circumstantial evidence are more difficult for the Tribunal to decide

Circumstantial evidence requires some reasoning in order to prove a fact. Circumstantial evidence often relates to a series of facts or events that together may prove that discrimination was a factor in the negative treatment at issue. An applicant relying on circumstantial evidence will argue that discrimination is proven by the evidence as a whole, including related proven facts or events that, taken together, make it reasonable to conclude or “infer” that discrimination was at play.

The Tribunal must decide what conclusions or inferences can be drawn from the facts that are proved by the oral and documentary evidence at the hearing. The Tribunal will consider if it is reasonable to conclude from its factual findings as a whole that the applicant experienced discrimination.

In making its decision on the case, the Tribunal considers the evidence brought forward at the hearing by both sides, the applicant and the respondent. In most cases, the respondent will present witnesses and documentary evidence to prove an alternative non-discriminatory explanation for the negative treatment. As an applicant, you must present enough evidence at the hearing to support the Tribunal in finding that it is more probable than not that you were treated badly because of a Code-protected personal characteristic. In preparing your case, you need to consider all the available facts and circumstances that point to discrimination.

The ultimate issue to be decided by the Tribunal is whether the evidence as a whole makes it more likely than not that the applicant was treated negatively because of a Code-protected personal characteristic.

The oral and documentary evidence presented at a hearing is assessed and weighed by the Tribunal with regard to both its credibility and its reliability. The Tribunal assesses the sincerity of testimony as well as the witness’s ability to accurately observe, recall and recount the events at issue. In making its decision, the Tribunal will not rely on the evidence of a witness who is not believable or credible. But even where a witness is credible and sincere, their evidence may be unreliable if, for example, their memory is impaired or they were not in a position to closely observe the events at issue.

Findings about the credibility and reliability of evidence are a major element in many discriminations cases, especially when there is conflicting evidence before the Tribunal about whether or how an action or event occurred.

In determining issues of credibility and reliability, the Tribunal often cites the following excerpt from Faryna v. Chorny, (1952) 2 D.L.R. 354 (B.C.C.A.) at pages 356-357:

“Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”

See Lugonia v. Arista Homes, 2014 HRTO 1531 for a recent Tribunal decision making reference to Faryna v. Chorny.

Respondents are uniquely positioned to know why they acted as they did, for example, in firing an employee or changing conditions of work. As discussed above, the respondent’s evidence will be used by the Tribunal in determining what happened and why.

The Tribunal’s rules allow applicants to request documentary evidence in the respondent’s possession before the hearing. This is an important part of preparing for your hearing.

For information on how an applicant can obtain information and records in the respondent’s possession, see the HRLSC’s Applicant’s Guide to a Hearing and Information Sheet on Disclosure.

No. An applicant does not need to prove that discrimination was the sole, or even the primary, factor in the negative treatment that gave rise to the application. It is enough if one of the reasons for the treatment was discriminatory.

Where there are a number of reasons for negative treatment, your discrimination claim will be accepted by the Tribunal if you can show through your evidence at the hearing that a Code-protected personal characteristic was one of the factors in the negative treatment.

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. The focus of the Tribunal’s enquiry is on whether the respondent’s actions had a negative effect on you.

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.

An applicant at the Tribunal bears the burden of proving that 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 Tribunal cases, 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”.

The Tribunal will examine the relevant evidence presented at the hearing by the applicant and the respondent to determine whether it is more likely than not that a violation of the Code occurred. Both the applicant and the respondent bear responsibility to bring forward evidence at the hearing to prove their position.

The applicant bears the initial burden of establishing a basis for a finding of discrimination. This is sometimes called a “prima facie” case. This means that an applicant at a hearing must produce their evidence first and must produce enough evidence which, if believed, would support a finding of discrimination. If the applicant does this, then the respondent must present evidence to disprove or “rebut” the applicant’s evidence. The respondent will bring evidence to the hearing to show its action were not discriminatory (or to establish a statutory defense under the Code which justifies the discrimination – discussed below).

An example is helpful. If your application alleges that disability was a factor in the termination of your employment, there are three initial components of your claim that need to be proved:

1. That you have a disability;
2. That you were fired, and other employees were not fired (i.e. negative differential treatment); and
3. That your disability was at least one of the reasons why you were fired.

With respect to the question of why you were fired, what you need is evidence of a connection between the termination and your disability. Disability must be a factor in the termination of your employment. Establishing that you have been terminated 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 who loses their job would be able to “prove” discrimination, even if the employer terminated the employment of all employees in the same position, included employees without disabilities.

In order to make out a case of discrimination, the applicant’s evidence must establish a foundation upon which the Tribunal could find that the applicant was negatively treated because of the prohibited ground under the Code (e.g. disability). If an applicant is only able to prove #1) and #2) above, then the applicant has not made out an initial case and the Tribunal may dismiss the application.

A respondent can defend against a discrimination allegation in two main ways:

• By calling evidence to establish a credible, non-discriminatory explanation for their actions, or
• By establishing a statutory defense under the Code that justifies the discrimination.

An example of the first kind of defense is when a respondent leads evidence to show that the reason for the termination of employment was poor performance or an organizational restructuring that was unconnected to the employee’s protected personal characteristic under the Code (e.g. age, race or disability).

An example of a statutory defense would be a licenced bar that relied on the Liquor Licence Act to defend itself in an application involving under-age consumption of alcohol. If an 18-year old customer brought an application to the Tribunal claiming discrimination after being refused alcohol on the basis of age, the bar could rely on section 20(2) of the Code. That section states that the minimum drinking age of nineteen years, as set out in the Liquor Licence Act, does not violate the right to equal treatment on the basis of age under section 1 of the Code. Section 20(2) is a “statutory defense” and a complete answer to the claim of discrimination.

Other examples of statutory defences include sections 24 and 25 of the Code which set out various exceptions to claims of employment- related discrimination. The statutory defences available under the Code are diverse but generally recognize other social values that may outweigh the right to equal treatment.

Also, the special programs defence under section 14 makes it clear that not every distinction is a discriminatory distinction under the Code. Special programs promote equality by treating some groups differently while making distinctions among groups.