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Human Rights (Ontario) - Discrimination - Adverse Effect. Brandt Tractor Ltd. v Melissa Morasse
In Brandt Tractor Ltd. v Melissa Morasse (Div Ct, 2026) the Divisional Court dismissed a successor employer's JR, that brought against an HRTO finding that "found that Brandt discriminated against Ms. Morasse with respect to employment on the basis of sex and family status, contrary to the Human Rights Code, RSO 1990, c. H. 19 (the “Code”) when it did not consider Ms. Morasse for employment with Brandt and her employment with Nortrax was terminated".
Here the court noted that prohibited discrimination need only be a factor in the harm suffered by an HRC applicant:[11] Finally, Brandt argues that the Tribunal was unreasonable in disregarding Napolitano v. Friendly Times Child Care Centre, 2012 HRTO 603 and McClichey v. Regional Tourism Ontario Four Inc., 2021 HRTO 142.
[12] I disagree. Neither of these summary hearing decisions of the Tribunal were binding in this case. Nevertheless, the Tribunal considered both decisions and did not take issue with the principle that the applicant needed to do more than simply prove that but for the existence of a prohibited ground there would not have been an adverse impact. (Napolitano at para.14).
[13] Rather, the Tribunal merely observed that following the Napolitano decision, the SCC released Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Aerospace Training Center), 2015 SCC 39 which held that the prohibited ground need only be a factor and not the sole factor in the decision that led to the adverse impact (para.52.)
[14] The Tribunal did not commit either of the impermissible inferences warned of in Napolitano and Bombardier. In this case, no inference was necessary because Brandt admitted that it decided not to interview Ms. Morasse because she was on a leave of absence and was not immediately available to be interviewed. There was therefore a clear nexus between Ms. Morasse’s protected characteristic and the fact that she was deprived of the opportunity to be interviewed for potential employment.
[15] The Tribunal correctly found that in accordance with the binding and authoritative jurisprudence from the SCC in Bombardier, Ms. Morasse’s maternity/parental leave was a factor in both Brandt’s decision not to hire her and the termination of her employment by Nortrax. The Tribunal’s conclusion that the prima facie test had been established was logically sound and internally coherent. . Petrykowski v. Federation of Law Societies of Canada
In Petrykowski v. Federation of Law Societies of Canada (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR against the Federation of Law Societies of Canada ('FLSC'), here against a dismissal of an HRTO application involving a FLSC foreign (here, a UK) law degree accreditation decision.
The applicant unsuccessfully argued that the requirement that he attend an additional 2 years of Canadian 'in class instruction' constituted constructive/adverse discrimination under HRC s.11(1):[3] Since the Applicant’s law degree was obtained solely through online self-study, the NCA informed him that he would have to complete two further years of full-time, in class instruction before he could be accredited.
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[9] With respect to the prohibited grounds under the Code, the Applicant submits that mode of study is either a proxy for place of origin or should be treated as an analogous ground, relying on cases under the Charter of Rights and Freedoms. The Applicant submits that he is the sole breadwinner in his household and it is not possible for him to complete in-classroom education. He submits that his degree would be accepted throughout the European Union.
[10] The Tribunal reasonably found that mode of study was not a protected ground under the Code. Unlike Charter litigation, the HRTO has no jurisdiction to identify analogous grounds under the Code: Stukanov v. Human Rights Tribunal of Ontario, 2021 ONSC 262 (Div C.t), at para. 11. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal considers direct versus adverse effect discrimination:(3) Direct versus adverse impact discrimination
[56] In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), the Supreme Court adopted a revised unified approach to employer defences under human rights legislation, no longer based on categorizing discrimination as direct or adverse impact (sometimes referred to as indirect). The court gave several reasons for this, including that the distinction is sometimes artificial, difficult to apply, and manipulable; that it is difficult to justify different remedies depending on which category is applied to a discrimination claim; that it can tend to legitimate systemic discrimination; and that it is inconsistent with the purposes of human rights legislation: at paras. 25-53.
[57] However, the distinction between direct and adverse impact discrimination continues to have relevance in Ontario because the BFOR defence in s. 11 of the Code is only available where discrimination is indirect:[3] Entrop v. Imperial Oil Limited (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (C.A.), at paras. 67-69.
[58] Although the Supreme Court in Meiorin signalled a move away from categorizing discrimination as direct or adverse impact, the concepts of direct and adverse impact discrimination have relevance to this appeal because one of the issues on which the majority of the Divisional Court found the tribunal decision to be unreasonable was the finding that Imperial’s policy constituted direct discrimination.
[59] The distinction between direct and adverse impact discrimination has its origin in Canadian law in Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”). In O’Malley, McIntyre J., writing for the court, described the distinction as follows, at p. 551:A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code, I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply. [Emphasis added.] [60] Thus, direct discrimination exists where a rule or policy discriminates against a protected group on its face. Adverse impact discrimination exists where a rule or policy is neutral on its face, but adversely affects members of a protected group (i.e., on the basis of a prohibited ground, such as race, sex, or creed).
[61] As is clear from the passage from O’Malley, the concern which motivated recognition of adverse impact discrimination is that a neutrally expressed rule or policy may affect particular groups protected from discrimination under human rights legislation in a discriminatory way. The fact the discrimination is not expressly intended by a neutral rule or policy does not make its effects any less real for the affected group: see also Meiorin, at para. 25; Entrop, at para. 71.
[62] More recent articulations of the distinction between direct and indirect discrimination have maintained the approach from O’Malley that discrimination is characterized as direct where a rule or policy is discriminatory on its face, and adverse impact where a rule or policy is neutral on its face but discriminatory in its effects on a particular group based on a prohibited ground: Entrop, at para. 65; Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at paras. 30-39; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at para. 15 (“Grismer”); Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, at para. 24.
[63] The Supreme Court in Meiorin and this court in Entrop recognized that in some cases, characterizing the alleged discrimination as direct or adverse impact may be difficult: Meiorin, at para. 27; Entrop, at para. 70.
[64] In light of the direction in Meiorin signalling a move away from undue focus on whether discrimination was direct or adverse impact, but mindful of the language of s. 11(1) of the Code which makes a BFOR defence unavailable for cases of direct discrimination, this court held in Entrop, at para. 80, that the s. 11 defence should be unavailable only in cases which can be “neatly characterized” as direct discrimination. In other words, if there is doubt about whether discrimination should be characterized as direct or adverse impact in a particular case, it should be characterized as adverse impact, to allow a BFOR defence under s. 11 to be considered.
[65] I flag now an issue I return to below. The Supreme Court has held that the test to establish prima facie discrimination is the same whether the claim is of direct or adverse impact discrimination: Grismer, at paras. 18-19; Fraser, at para. 49.
[66] As a result, whether a discrimination claim is characterized as direct or adverse impact has one practical effect in Ontario – whether a BFOR defence under s. 11 is available. Where a BFOR defence is not in issue, the question of whether a claim of discrimination is properly characterized as direct or adverse impact has no practical effect. . Ontario (Health) v. Association of Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal considered human rights systemic discrimination:[10] Adverse impact discrimination occurs when seemingly neutral rules, policies, procedures, systems, or structures have a disproportionate impact on disadvantaged groups: see Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at paras. 30-31. As Abella J. recognized in Fraser, an increased awareness of adverse impact discrimination has led to a shift away from a fault-based conception of discrimination towards an effects-based model. Identifying adverse impact discrimination involves critically examining systems and structures, recognizing that discrimination is “frequently a product of continuing to do things ‘the way they have always been done’”: Fraser, at para. 31, citing Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 S.C.L.R. (2d) 301, at p. 310.
[11] In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, Dickson C.J. defined systemic discrimination, at p. 1139, as follows:[S]ystemic discrimination in an employment context is discrimination that results from the simple operation of established procedures … none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job”. [Citation omitted.] Therefore, in a claim of systemic discrimination, it can be difficult to identify one single rule, policy, or procedure that results in adverse impact discrimination. Often “there is no single identifiable ‘villain’, no single action identifiable as ‘discriminatory””: Fraser, at para. 35, citing Mary Eberts & Kim Stanton, “The Disappearance of the Four Equality Rights and Systemic Discrimination from Canadian Equality Jurisprudence” (2018) 38 N.J.C.L. 89, at p. 92. Rather, systemic discrimination may emerge from an “invisible structure, with its accompanying set of practices” or as a “complex web of seemingly neutral, systemic barriers”: Fraser, at para. 35, citing Eberts & Stanton, at p. 92; British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at para. 42.
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