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Are you ready for Bill 107? |
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Written by Matthew Dewar
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Thursday, 13 December 2007 |
Employers will face more litigation as a result of changes
With the passage of Bill 107, sweeping changes to the Human Rights Code
and its enforcement are imminent. The impact on employers will be
considerable.
Under the code, employees are assured of equality and
employment without discrimination because of a range of prohibited grounds,
including race, ancestry, colour, creed, sex, sexual orientation, marital
status, family status, and disability. Employees who feel that they have been
subjected to discrimination currently file a complaint with the Ontario Human
Rights Commission. That agency is charged under the legislation to
investigate the complaint and endeavour to have it resolved.
Typically,
the commission will attempt to mediate the differences between the parties.
If a settlement is not reached, investigators are then assigned the task of
collecting evidence relating to the allegations of discrimination. They, in
turn, make recommendations to the commissioners as to whether the complaint
should be referred to the Ontario Human Rights Tribunal for further
prosecution or not. If the commissioners believe that a complaint has merit,
the complaint is referred to the tribunal where the commission will prosecute
the complaint.
Under Bill 107, the commission¹s investigative authorities
will be eliminated. It will no longer have formal carriage of a complaint,
which will be assumed individually by the complainant. The commission will
no longer have the power to launch complaints for compensation on behalf of
the employee; complainants will, in turn, enjoy direct access to the
tribunal. That being said, the burden of assembling a case will shift from
the
commission to the individual employee. Complainants will now be required
to retain legal representation to assist them in preparing their case and
will not have commission resources to draw on.
For employers, the process
will become judicial, since the commission will no longer be conducting investigations. Employers will be charged with marshalling all of their
evidence in defence of their position. Because of the complainant¹s automatic
access to tribunal, most cases will be referred to tribunal for
adjudication.
The employer¹s exposure to damages for violations of the code
will be significantly increased under Bill 107.
1. The cap of $10,000
in compensation for damages for mental distress will be paid;
2. Wilful
or reckless conduct will no longer be required to be proven to obtain such damages;
3. The limitation period for claims will double from
six months to one year after the alleged infringement;
4. The
tribunal will have the authority to impose fines of up to $25,000 for
violating human rights;
5. Employees will now be able to sue employers and
claim damages for breach of the Human Rights Code, as a cause of
action.
The government of Ontario promises that Bill 107 will assure a
more streamlined process to deal with a backlog of human rights complaints.
In fact, the effect of the bill is to simply shift the volume of
complaints from the commission to tribunal. It remains to be seen how the
tribunal will establish practices and procedures to ensure an expeditious
processing of complaints and screening out frivolous
proceedings.
Employers now face the prospect of more regular litigation on
human rights complaints either through the Ontario Human Rights Tribunal or
through the court system. The cost of doing business in Ontario will rise
significantly.
Matthew Dewar is a lawyer with Lang Michener LLP.
Visit them at www.langmichener.ca.
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