When conducting a workplace investigation, particularly those involving allegations of discrimination, harassment, or reprisal, one issue that may arise is the relevance of the intentions of the respondent.

Ontario (Human Rights Commission) v Simpson-Sears, [1985] 2 SCR 536 (“O’Malley“), established that, in Canadian human rights law, a complainant does not have to prove intent in order to prove discrimination. In O’Malley, the complainant observed the Sabbath from Friday sundown to Saturday sundown. She was required by her employer to work on Saturday. She filed a human rights complaint alleging that the requirement that all full-time employees work Saturdays discriminated against her on the basis of creed.

The Saturday shift requirement was adopted for sound business reasons, and there was no intention to discriminate. The employer argued that, as the rationale for adopting the rule had no discriminatory purpose, there could not be any contravention of the Ontario Human Rights Code ¹. This argument was rejected by the Human Rights Board of Inquiry, who held that intent to discriminate was not a requirement to prove discrimination.

On appeal, both the Divisional Court and the Ontario Court of Appeal determined that, based on the specific language of the Code, it was necessary to establish intent in order to reach a finding of discrimination. The result was that if an employer adopted a rule for valid business reasons, that would override the fact that the rule had a discriminatory impact.

The Supreme Court of Canada, however, recognized that this conclusion was not consistent with the underlying purpose of human rights legislation, namely the elimination of discrimination. McIntyre J., writing for the Court at para 14, noted that the requirement of proving intent, though appropriate in criminal or punitive legislation, should not be a factor in human rights cases where the goal was to address the “consequences of conduct rather than [to] punish for misbehaviour.”

The principle that discrimination need not be intentional is now a fundamental part of human rights law in Canada. The fact, however, that intent is not required to establish discrimination does not make intent irrelevant. In fact, there are a number of situations where the intent of the respondent will be an important consideration.

Reprisal

Some situations do, in fact, require intent. For example, in order to establish a claim based on reprisal under s 8 of the Ontario Human Rights Code, an individual must be able to establish that the actions taken against them were done with an intent to punish or retaliate. See Noble v York University, 2010 HRTO 878, at para 31, and Konesavarathan v Middlesex-London Health Unit, 2019 ONSC 3879 (Div Ct), at para 52.

The requirement for intent in reprisal or retaliation cases is somewhat different in other jurisdictions; see, for example, s 43 of the British Columbia Human Rights Code,² as interpreted by the BC Court of Appeal in Gichuru v Pallai, 2018 BCCA 78, paras 45-59, leave to appeal refused 2019 CanLII 5980, and s 14.1 of the Canadian Human Rights Act,³ as interpreted by the Federal Court in Millbrook First Nation v Tabor, 2016 FC 894. In these jurisdictions, though retaliation can be proven by intent, it can also be established by showing that what a reasonable complainant would perceive to be retaliation or reprisal was due to one having claimed their rights in the past. As noted by the Federal Court at para 64 of Millbrook First Nation, this is an objective test to determining whether the perception of retaliation is reasonable.

Further, in paras 53-54 of Gichuru, the BC Court of Appeal also noted that s 43 of the BC Code protects against retaliation, not the perception of retaliation, and that a reasonable perception does not itself prove retaliation, but rather simply provides circumstantial evidence.

From a practical perspective, the evidence required to establish retaliation or reprisal in these different jurisdictions will likely be the same, whether or not there is a specific requirement to prove intent.

Knowledge

One misunderstanding of the principle from O’Malley that arises on occasion is that if there is no need to prove intent, it is not relevant whether an employer knows that its conduct or rules have an adverse impact. This, however, is not correct. In the circumstances of O’Malley, prior to the applicant raising the issue, the employer was unaware that requiring her to work Saturdays was a concern. The point of O’Malley is that, once she raised the accommodation issue with the employer — that is, once the employer had knowledge that its rule had a discriminatory impact — it could not avoid addressing this impact simply because the rule was implemented for a non-discriminatory purpose.

Generally speaking, however, before an employer will have an obligation under human rights legislation to address an adverse impact, it will need to know that the adverse impact exists. This was, for example, expressly noted in Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489 (SCC).The obligation to make ones needs known before an employer would have an obligation to accommodate them is a generally accepted part of the accommodation process in human rights cases. See Daykin v Ford Motor Company of Canada, 2014 HRTO 319, at para 32, and Linklater v Essar Steel Algoma Inc, 2019 HRTO 273, at paras 37-39.

Of course, responsible employers who follow best practices in conducting workplace assessments, and in developing and implementing effective human resources and human rights policies, may go a long way to avoid barriers such that issues of accommodation can be addressed as a matter of course before any adverse impact occurs.

Harassment

Similar issues may also arise in cases involving workplace or sexual harassment. In order to establish harassment, human rights and occupational health and safety legislation, as well as corporate policies, generally require that the conduct must be known or ought reasonably be known to be unwelcome by the respondent. Proving harassment does not require proving intent; however, that does not mean evidence of intent should be ignored. As noted by the Ontario Human Rights Tribunal in Farias v Chuang, 2005 HRTO 22, at para 197, the definition of sexual harassment may well incorporate an element of intent, recklessness, or wilful blindness into the analysis. As with reprisal, even though there is no actual requirement to prove that actions were intentional, in practice, the evidence required to establish harassment may properly include evidence of intent.

Remedies

A further issue where intent may arise as a relevant consideration, if indirectly, is with respect to the appropriate remedy for discrimination. Damages in human rights cases are not punitive but are compensatory and are designed to put the individual in the position they would have been but for the discrimination having occurred. See Piazza v Airport Taxicab (Malton) Assn, 69 OR (2d) 281 (Ont CA).

Intentional, malicious treatment may well have significantly greater impact on an individual, and the manner in which they were treated could justify a correspondingly greater award of compensatory damages. See, for example, Strudwick v Applied Consumer & Clinical Evaluations Inc, 2016 ONCA 520, at paras 64-77.

Conclusion

Though intent is not required to prove discrimination, it may nonetheless be a legitimate and important consideration, particularly in cases involving human rights issues.

¹ RSO 1990, c H.19

² RSBC 1996, c 210

³ RSC 1985, c H-6

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