Judge slams tribunal decision

Ontario court slams Human Rights Tribunal decision

Norman Grosman|

In this case, the employer, Audmax Inc. and its CEO, Maxcine Telfer, provide settlement related services to female immigrants to Canada, including helping them gain employment.

The complainant, Seema Saadi, had been employed as an intake worker for just six weeks when Audmax let her go during her probationary period.  Ms. Saadi identified herself in the Ontario Human Rights Tribunal proceedings as being legally blind, of Bengali origin, and an adherent of the Muslim faith – and claimed to have been discriminated on based on all of those grounds.

In June 2008, after her employment at Audmax was terminated, Ms. Saadi filed a human rights application with the OHRT.  Ms. Saadi alleged that Audmax and Ms. Telfer discriminated against her on the basis of “her race, colour, ancestry, place of origin, ethnic origin, disability, creed and sex”.  Audmax and CEO Maxcine Telfer categorically denied those allegations.

The adjudicator, Faisal Bhabsa, determined that while many of Ms. Saadi’s allegations were unfounded, Audmax and Ms. Telfer had engaged in some prohibited discrimination. The Tribunal concluded that Audmax and Ms. Telfer discriminated against Ms. Saadi on the basis of her ancestry, ethnic origin, creed and sex in relation to its enforcement of the staff microwave and dress code policies.

He was also not satisfied with the employer’s reasons for termination and concluded that the discrimination against Ms. Saadi culminated with her termination from employment. Mr. Bhabsa awarded Ms. Saadi general damages of $15,000.00 for violation of her right to be free from discrimination and for injury to dignity, feelings, and self-respect, and an additional $21,070.00 for lost salary.

Audmax and Ms. Telfer commenced judicial review proceedings before the Divisional Court to set aside the OHRT decision.

As to the standard of review required of a court in considering a human rights tribunal decision, the Divisional Court stated: decisions of the tribunal are required to be rationally supported and to fall within a range of possible, acceptable outcomes that are defensible in fact and law.  Otherwise, they will be considered to be ‘patently unreasonable’ within the meaning of the legislation.

From the perspective of employers, The Audmax case provides useful instruction on the type of conduct that will attract liability for discrimination.

In that regard, Audmax’s microwave policy was actually in place to address employee environmental sensitivity concerns.  While not targeting any particular ethnic group, the policy was found to impose reasonable restrictions on foods with “strong odours” and ingredients that may cause other employees to suffer an allergic reaction.

Ms. Saadi alleged that she was disciplined by the employer for reheating a colleague’s Tunisian food, and that this incident had violated her human rights based on her race, ancestry, ethnic origin and place of origin.  The Court determined that there was no connection between the microwave policy and the various heads of discrimination alleged and that the policy did not violate Code requirements on either a direct or indirect basis.

In addition, the Divisional Court set aside the adjudicator’s finding that the employer breached the Code in relation to Ms. Saadi being disciplined for wearing certain clothing and a hijab, and criticized Mr. Bhabsa for the ‘process’ he used to reach his conclusions.

In this case, the employer’s evidence, in support of its discipline, was that it actually objected to Ms. Saadi’s clothing when she had worn a tight short skirt and leggings to work (which was viewed as unprofessional attire).  The court found that Mr. Bhabsa had rejected Ms. Telfer’s evidence on this point, without offering any reason for its rejection.

Correspondingly, Mr. Bhabsa accepted Ms. Saadi’s evidence that she would never wear such clothing since she was an observant Muslim woman.  In the court’s view, there was similarly no logical connection between the clothing to which Audmax and Ms. Telfer objected and the alleged Code grounds violated.

Further, the Court found that it was not discriminatory for an employer to have a male employee in attendance at a disciplinary meeting with a female employee in relation to a complaint about the female employee’s violation of the employer’s dress code.  On this basis, the court set aside the findings of the Ontario Human Rights Tribunal and awarded costs to Audmax and Ms. Telfer fixed at $10,000.00.

This case raises some public policy questions about the new direct access OHRT hearing mechanism under the Code.  Without the benefit of a Human Rights Commission investigation, cases that are of tenuous merit come before the OHRT without the benefit of the Commission’s prior screening and investigation process.

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Norman Grosman tackles your employment law dilemmas regularly on Workopolis. More information about him and his legal services can be found on his website grosman.com


Category: Employment Law,