By Howard Levitt And Puneet Tiwari
Howard Levitt and Puneet Tiwari: Lawyers take note — not everything is a human rights breach that will lead to a big payday
In the ever-evolving tapestry of the workplace, one term has woven itself into the fabric of discussion with increasing prominence: wokeism. Often under the guise of equality, justice, identity and race, it continues to shape how we interact with our colleagues at work. Many organizations now have large and robust diversity, equity and inclusion (DEI) departments dedicated to raising awareness of these issues and to ensure workplace decisions are made with these ideas in mind.
But along with progressive change, the DEI movement has brought much controversy and has given rise to an onslaught of frivolous human rights applications filed across the country. We have received numerous demand letters from overzealous lawyers with often comically overstated demands for seemingly minor inconveniences experienced by their clients. This phenomenon further adds to the backlog the Human Rights Tribunal of Ontario (“HRTO”) is facing and delays matters that need to be heard such as sexual assault, violence and discrimination. The situation is no different in other provincial and federal human rights tribunals.
It would appear that the HRTO has taken note as the pendulum that had swung to the extreme end in favour of the employee seems to be coming back to reality. In two recent decisions, the HRTO has sent a clear message it will not give awards for frivolous claims.
In Knauff vs. Ontario (Natural Resources and Forestry), the applicant alleged reprisal and discrimination in employment based on creed, contrary to the Human Rights Code. The creed in question was his status as an ethical vegan. The applicant was a firefighter who would often be deployed in remote camps where his employer would provide him with lodging and meals. The applicant described his creed as ethical veganism and alleged that the employer failed to accommodate him by not meeting his dietary requirements.
The Ontario Human Rights Commission defines creed as a belief that: is sincerely, freely and deeply held; is integrally linked to a person’s identity, self-definition and fulfilment; addresses ultimate questions of human existence, including ideas about life, purpose, death and the existence or non-existence of a creator and/or a higher or different order of existence; is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices; and has some nexus or connection to an organization or community that professes a shared system of belief.
The decision by the HRTO was swift — the application was dismissed at a preliminary hearing. The applicant had two expert witnesses testify and even brought in international case law (which the HRTO refused to consider). The HRTO concluded that ethical veganism was not a creed as it does not meet the definition of creed. The HRTO dismissed the application and stated there was no reprisal. Of note, the decision also highlights the fact an employer cannot read the minds of its employees. The applicant admitted that he never advised his employer that his requests were based on his creed and therefore, there could be no reprisal. This application was originally filed in 2018 and heard in 2023.
In another decision, Leason vs. Adamanda Inc., the applicant alleged discrimination based on disability and reprisal. She alleged that she was terminated for taking time off due to her disability. At first she claimed her disability was a concussion, which she suffered during a fall in the workplace. She later admitted that the employer did accommodate her for this injury. However, she also claimed that she suffered from depression and the employer failed to accommodate her. She never informed the employer that she suffered from depression; it was only revealed in the application.
The applicant worked a Dairy Queen restaurant. Her cousin was the manager, and her other cousin worked there as well. They often texted each other using foul language and calling each other names. The applicant alleged there was also a toxic work environment created by the manager through these communications. The HRTO held that rather than a toxic work environment, it was a family issue as the cousins were merely arguing over an upcoming birthday party and often spoke to each using foul language outside of work. A family dispute outside of work did not then create a toxic environment in the workplace.
Further, the HRTO found that the applicant never even advised the employer of her depression at the time — there was no request to accommodate and thus no reprisal and no discrimination. This application was also dismissed. It was originally filed in 2018 and heard in 2023.
Both of these applications clogged the tribunal system for five years before being heard. Both were devoid of merit and dismissed.
Lawyers should take note — not everything is a human rights claim. If there is no breach of the Human Rights Code, the atmospheric evidence alone is not sufficient to receive an award. As employers grapple with the intricacies of identity and equality in the workplace, it does not mean everything is a human rights breach that will lead to a big or any award at the tribunal. If there is no breach, there will be no award.