Liability Factum - The Law of Workplace Sexual Harassment in Canada
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Liability Factum

Liability Factum


A Liberal Interpretation

  1. Given the broad policy considerations behind the human rights legislation, the statute should be interpreted in a manner “befitting the special nature of the legislation, which as described in, is “not quite constitutional”. The human rights legislation hence must be given “such fair, large and liberal interpretation as will best ensure the attainment of their objects”.

O’Malley v Simpson Sears [1985] 2 SCR 536

B. Burden of Proof

2.  The burden of proof rests on the complainant to establish a prima facie case of adverse discrimination.

3. A prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”.

4. Once this test of a prima facie case is made, the burden of proof then shifts to the employer to provide a reasonable explanation for the behaviour.

Supreme Court of Canada in O’Malley v Simpson Sears

Ontario Court of Appeal Shaw v Phipps

5. The three elements of a prima facie case require the complainant to prove that he or she is a member of a group protected by the Code, that he or she was subjected to adverse treatment and that the subject matter of the complaint as alleged was a factor in the alleged adverse treatment.

Ontario Court of Appeal in Phipps v Shaw

6. A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

7. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation.  The respondent must offer an explanation which is credible on all the evidence.

8. There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

9.  The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

The Divisional Court in Shaw vs. Phibbs 2010 ONSC 3884 (confirmed on appeal)

(para 5 to 9 above)

10. In discrimination cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. The standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

Ontario Court of Appeal in Peel Law Association v Pieters

11. (use where the defence of the employer is statutory)

In a case in which the respondent’s answer relies on a statutory defence, the burden of proof shifts to the respondent, following the presentation of a prima facie case by the complainant.

Ontario Court of Appeal in Peel Law Association v Pieters

Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202

12. (use where the defence of the employer is non statutory defence)

In a case in which the respondent’s answer is to lead further evidence to rebut the inference that its action was discriminatory, only the evidential burden shifts.

Ontario Court of Appeal in Peel Law Association v Pieters


13. The onus of proof upon the complainant is that of a balance of probabilities, as in a civil case. The applicant must show that he/she experienced within the meaning of the Code the discrimination, harassment and/ or reprisal she alleges.

Kowalczyk v Hudson’s Bay


Nature of the evidence – Reasonable Inference

14. Direct evidence of conduct contrary to the Code’s mandate is rare. The Tribunal typically makes its findings by reasonable inference from the evidence before it.

The Divisional Court in Shaw v Phibbs 2010 ONSC 3884 (confirmed on appeal)

15. It has been noted that since direct evidence is rarely available to a complainant, it is left to the Board to determine whether or not the complainant has been able to prove that the employer’s explanation is pretextual by inference from what is, in most cases, circumstantial evidence.

Ontario Court of Appeal Shaw v Phipps

16. It becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises.

Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (Can. Trib)

Conduct in Violation of the Code need only be a factor, not the factor

The offensive conduct need only be a factor propelling the conduct in question. It need not be the sole cause.

Hummel v Transport Training

Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum)

April 1987 Divisional Court decision of Scott v Foster Wheeler 8 CHRR D/4179

Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

Nelson v Lakehead University

Grace J. in Wilson v Solis Mexican Foods,

No Intent is required

18. It is not necessary to prove an intent to discriminate.

Nelson v Lakehead University

Cugliari v Telefficiency

Ontario Court of Appeal Shaw v Phipp

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