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Human Rights (Ont) - Reprisal

. Wang v. 1355844 Ontario INC. o/a Korean Grill House

In Wang v. 1355844 Ontario INC. o/a Korean Grill House (Ont Div Ct, 2026) the Ontario Divisional Court dismisses an HRTO JR, this brought against an order "dismissing a complaint of reprisal or threat of reprisal":

[4] The HRTO noted that the Applicant’s complaint is brought pursuant to s. 8 of the Ontario Human Rights Code, RSO 1990, c. H.19, which provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

[5] The Tribunal then summarized the elements necessary for finding a claim of reprisal, as follows (following Noble v. York University, 2010 HRTO 878):

(a) An action taken against or a threat made to the complainant;

(b) The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code;

(c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

[6] I see no reviewable error in this statement of the applicable statutory provision or legal test for a claim of reprisal.

The Applicant’s Human Rights Claim

[7] The Applicant says that he was an employee of the Korean Grill House in 2014-15. He says that during this time, Korean Grill House assigned work shifts in a discriminatory manner by giving daytime shifts to older women, and giving late shifts to younger employees, such as the Applicant.

[8] The Applicant did not initiate a claim at the HRTO respecting the events in 2014-15 at the time of the alleged discriminatory shift assignments, nor did he seek to bring such a claim to the HRTO at any subsequent time (the deadline to bring such claims has long since passed: Code, s. 34(1)).

[9] In December 2022, the Applicant posted an online negative review of Korean Grill House’s business, saying:

Manager assigns kids weekend night shifts from 10pm to 2am to wash grills because they are kids whereas Cantonese speaking women get morning shifts instead.

[10] In response to this review, Korean Grill House’s counsel wrote a “cease and desist letter” to the Applicant, threatening civil legal proceedings.

[11] The HRTO found that counsel’s letter satisfied the first branch in the test for a reprisal claim: it is a threat made to the Applicant by Korean Grill House’s agent. However, the HRTO found that the second and third branches of the test could not be satisfied on the Applicant’s account of the facts. In particular, the HRTO found:

(a) “… there is nothing to demonstrate that the online review was in any way connected to the appellant claiming or enforcing a right under the Code” (Decision, para. 10)

(b) There is no evidence that Mr Wang “[made] a complaint, [filed] an application or otherwise pursued any remedy under the Code” (Decision, para. 10)

(c) There was no basis on which the Tribunal could reasonably conclude that “the applicant was attempting to claim or enforce a right under the Code” (Decision, para. 10)

[12] On the basis of these findings, all of which are reasonable and available on the record before the Tribunal, the Tribunal concluded:

There can be no intention on the part of the respondent to retaliate for an applicant having claimed or attempted to enforce a right under the Code if the applicant never claimed or attempted to enforce a right under the Code.

[13] On reconsideration, the Applicant argued that the Tribunal applied an unduly narrow interpretation. He submitted “that the Tribunal failed to recognize that by simply raising an objection to discriminatory or harassing conduct an individual can be found to be claiming or enforcing a Code right” (Reconsideration Decision, para. 6). The Tribunal did not accept this argument and declined to exercise its discretion to reconsider its decision.

[14] The Applicant essentially repeats to this court the arguments he made to the Tribunal. He argues that “calling out” discrimination, as he submits that he did, is a means of enforcing Code protections and is covered by the anti-reprisal provisions of the Code. I would not accept this argument, for multiple reasons.

(a) The anti-reprisal provisions protect access to the Human Rights Tribunal to pursue claims under the Code. They do not protect public speech that is not connected with a claim to the Tribunal under the Code.

(b) To hold otherwise would permit wanton, vexatious, baseless allegations of socially deleterious conduct without civil recourse for those so maligned. The law of defamation includes multiple layers of protection of free speech but does not completely insulate a speaker from the consequences of maligning another person.

(c) Even where a claimant has pursued a claim to the Tribunal, that does not afford that claimant the right to assert their claims outside the Tribunal process with impunity. See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, where words alleged in a Statement of Claim were covered by absolute privilege, but where those same words, read from the statement of claim to a press conference outside the courthouse, were not protected by the privilege and were actionable.

[15] The Tribunal reasonably found that there was no factual basis for a reprisal claim: the threat of litigation was solely in response to the Applicant’s public statements outside the process of asserting a claim to the Tribunal, and not a reprisal for “claim[ing] and enforc[ing] [the Applicant’s] rights under this Act, to institute and participate in proceedings under this Act….”

[16] The Applicant also argued that he had some sort of duty to speak up, to prevent continuing discrimination to others still in the employ of Korean Grill House, and thus the cease and desist letter was threatened reprisal for “refus[ing] to infringe the rights of another.” This argument is, obviously, without merit, and verges on being tendentious.

[17] The Tribunal’s decision is reasonable; the application for judicial review is dismissed.

. Yan v. 30 Forensic Engineering Inc.

In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court considered the s.8 'reprisal' provisions of the HRC:

Did the HRTO err in its dismissal of the allegation of reprisal?

[74] The Tribunal did not err in its rejection of Ms. Yan’s complaint of reprisal. Its conclusion was reasonable. Section 8 of the Code says:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.

[75] For a reprisal to be made out under s. 8 of the Code, an action taken against, or threat made to, the applicant must be related to the applicant having claimed or attempted to enforce a right under the Code. Then, there must be an intention on the part of the respondent to retaliate for the claim or attempt to enforce that right.

[76] In her factum before this court, at para. 111, Ms. Yan submitted that the reprisal by 30 Forensic was not limited to the termination of her employment. Rather, the harassment she encountered, the poisoned work environment, management’s internal bad-mouthing of Ms. Yan, and the company’s characterization of her internal complaint as a work issue, were all retaliatory and the result of her internal complaint. She added that management bad-mouthed her after she spoke to the President on December 17, 2018. Ms. Yan alleged that the Tribunal erred in its conclusion on this point because it failed to consider the cumulative sum of these experiences as retaliatory and in response to her complaints.

[77] The Tribunal considered the issue of reprisal, only in terms of 30 Forensic’s termination of Ms. Yan’s employment. The decision is silent on Ms. Yan’s submission before this court that all her negative experiences during her employment were retaliatory and resulted from her internal human rights complaint.

[78] Turning first to the way the Tribunal addressed the issue of reprisal, it reviewed the following evidence. Ms. Yan pursued an internal human rights complaint on July 17, 2018, immediately following the issuing of the PIP. The complaint was dismissed in late August of 2018. Ms. Yan was terminated six months later. On the evidence before the Tribunal, which the Tribunal accepted, Mr. Sparling, one of 30 Forensic’s principals, decided to terminate Ms. Yan’s employment after she refused to assist on an urgent file. The Tribunal accepted his evidence. Although it observed that the specific conflict was consistent with Ms. Yan’s previous resistance to assist with files, it found nothing in the evidence to suggest that Mr. Sparling’s decision to terminate Ms. Yan’s employment was retaliatory. It went further to note that it did not have to determine if whether Mr. Sparling had unreasonable expectations when he asked Ms. Yan to assist him. For the purposes of deciding whether the termination was retaliatory, it was sufficient that the termination was linked to Mr. Sparling’s perception of Ms. Yan being uncooperative.

[79] With respect to Ms. Yan’s submission before this court, it may have raised a pause for concern, were it not for the evidence that Ms. Yan encountered difficulties six weeks into her employment, and well before she launched her internal complaint. To suggest that everything she encountered post-July 17, 2018 was retaliatory does not accord with her own evidence. On the uncontradicted evidence before the Tribunal, Ms. Yan’s first complaint to the company was in early June 2018. By the middle of June there were continued difficulties and by June 29, 2018, one of the one of the principals wanted to terminate Ms. Yan’s employment in response to some interpersonal conflict and the difficulties with the RFP. The Human Resources Manager and Mr. Sparling acknowledged the difficulties were not necessarily Mr. Yan’s fault and preferred instead to issue the PIP. By all evidentiary accounts, there was confusion and toxicity in the workplace, that had nothing to do with Ms. Yan’s internal complaint.

[80] The Tribunal acknowledged the bad mouthing of Ms. Yan by management but it also found a genuine attempt by management to understand and address Ms. Yan’s concerns. As noted above, it specifically found that “management paid attention to Ms. Yan’s concerns and sympathized with her.” Then in her performance review, Mr. Sparling readily acknowledged Ms. Yan’s strengths. Also on the evidence before the Tribunal, Mr. Sparling learned that Ms. Yan went away pleased with her review and it was only after it was confirmed that she would not be getting a raise that Ms. Yan confronted the President of 30 Forensic and raised her difficulties with PTSD. It is reasonable to infer that had she perceived the difficulties she now raises as retaliatory, she would have raised them with Mr. Sparling, in her encounters with him in October 2018 and with the President in December 2018.

[81] Against that evidentiary backdrop, there is nothing unreasonable in the way the Tribunal considered and ultimately disposed of this issue.