What is discrimination?

 Discrimination occurs when a person is subjected to differential treatment and/or denied an opportunity in employment or accommodation or, excluded from access to service or a facility on the basis of one or more protected grounds whether direct or indirect. The protected grounds include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex including pregnancy and breastfeeding, sexual orientation, gender identity, gender expression, age, receipt of public assistance (accommodation) record of offences, marital status, family status and disability (physical and/or mental). Discrimination does not have to be intentional.

The Supreme Court of Canada defined “discrimination” in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, as follows:

“(...) a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.” 

The test for discrimination requires a complainant to establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment. Discrimination is not made out simply because the impugned treatment has a negative impact on a member of a protected group. 

Justice Abella stated in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, [2007] 1 S.C.R. 161: 

“(...) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.” 

In some cases, the discriminatory nature of the treatment will be obvious when the link between the treatment and the prohibited ground of discrimination is established. In other cases, it will not be readily apparent and a more nuanced inquiry will have to be conducted to determine whether the distinction actually engages the right to equal treatment under the Human Rights Code in a substantive sense. (See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593).

In order to determine whether the impugned treatment constitutes substantive discrimination, the focus of the inquiry is on the actual impact of the treatment, taking full account of the social, political, economic and historical factors concerning the protected group. The Supreme Court stated in Withler v. Canada (Attorney General), 2011 SCC 12: “The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.”

As determined in Shaw v. Phipps, 2010 ONSC 3884 (CanLII) (Div. Ct.), and upheld in  Shaw v. Phipps, 2012 ONCA 155 (CanLII), in order to establish a case of discrimination, the complainant must establish the following:

(1) s/he is a member of a group protected by the Code;

(2) s/he was subjected to adverse treatment; and,

(3) a Code ground was a factor in the adverse treatment.

Once a prima facie case of discrimination has been made by the complainant, the burden shifts to the respondent to provide a reasonable justification for the alleged behaviour.

However, it is important to remember that it is not the purpose of the Code to police every offensive comment made in the workplace; rather, the purpose of the Code is to remedy a comment or comments, which amount to substantive discrimination.