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We hope that most employers are familiar with their substantive obligations under the Ontario Human Rights Code (the “OHRC”). However, I have found that employers can overlook a “hidden” provision in the OHRC which imposes liability on them not only for the discriminatory actions of their controlling minds and/or senior employees, but also for those of their customer-facing employees. Consider the language of s. 46.3 (1) of the Code:
Acts of officers, etc.
46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization. [Emphasis Added]
It is always interesting to come across cases in which employers were completely oblivious to that potential legal exposure, and were unexpectedly confronted with orders to compensate victims for injury to dignity, feelings and self-respect. Not surprisingly, such cases have often involved untrained employees who were equally ignorant of the potential impact of their actions on their employer. These scenarios become especially prevalent when employees are asked to interact with customers who suffer from “non-obvious” or “hidden” disabilities.
The decision of the Ontario Human Rights Tribunal (the “Tribunal”) in Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 is a case in point. In that case, the applicant alleged that she was discriminated against with respect to services because of her disability. Specifically, the applicant alleged that she was denied access to the respondent restaurant (the “Restaurant”) because she was accompanied by her service dog (“Koby”).
The applicant was a person diagnosed with autism whose doctor advised that she could benefit from a support dog. On the date of the alleged incident, the applicant arrived at the Restaurant and a server told her that she was not permitted to enter with Koby, despite having been informed that Koby was a service animal. Upon leaving the Restaurant, the applicant experienced severe anxiety, and has since been unable to frequent the establishment. In his testimony, the server acknowledged that he was agitated and did not know how to handle the situation.
The Restaurant did not dispute that the applicant was denied service because she was accompanied by Koby. Instead, the Restaurant argued that Koby was not a service animal protected by the provisions of the OHRC, or by the provisions of the Access for Ontarians with Disabilities Act (the “AODA”). In the alternative, the Restaurant argued that an employer should have no liability for the discriminatory actions of its employees.
In finding that the applicant and Koby were indisputably protected by the legislation, the Tribunal noted that the definition of “disability” in the OHRC expressly refers to “physical reliance on a guide dog or other animal”. Similarly, the Tribunal referred to the AODA regulations, which stipulate that an animal is a “service animal” if it is “readily apparent that the animal is used…for reasons relating to [one’s] disability”.
On that basis, the Tribunal concluded that the applicant had been discriminated against due to her disability. The Tribunal held the Restaurant liable for the actions of the server, succinctly dismissing any suggestions to the contrary:
The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the OHRC is that of the employer. This too is a well-established legal principle and is set out in section 46.3 of the OHRC.
Although the applicant was ultimately awarded nominal compensation for injury to her dignity, feelings and self-respect, the decision serves as an important reminder to employers of their potential legal exposures. Accordingly, employers would be well-advised to take all reasonable steps to train employees on the requirements of the OHRC and the AODA if they wish to avoid being unexpectedly “bitten” by the law.
About the Author: Toronto employment lawyer Titus Totan supports both employee and employer clients in all areas of employment law, including employment standards, contractual and implied obligations, terminations, workplace investigations and workplace human rights.
Postscript: The Tribunal’s comments regarding the important relationship between the applicant and her service dog reminded many of us at RT how lucky we are to have our own four-legged friends for love and companionship.