Documentation:Torts/Discrimination

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Discrimination
Discrimination can be defined as "an action or a decision that treats a person or a group badly for reasons such as their race, age or disability."[1] There is currently no recognized tort of discrimination in Canada.[2] Instead, complaints of discrimination are addressed by federal and provincial human rights legislation and agencies.[3][4] There has been criticisms of the effectiveness of such legislation in regard to providing victims with adequate redress,[5] and some argue that the courts should recognize discrimination as a distinct tort.[6][7]

No recognized tort of discrimination

Entrance to Seneca College, featuring glass doors, brick walls, and Seneca's logo overhead the doors.
Seneca Polytechnic College in Toronto, Ontario.

In the landmark case Seneca College v. Bhadauria, the Supreme Court of Canada refused to allow an action based on an independent tort of discrimination.[2][8] The plaintiff was an East Indian woman who possessed a PhD in mathematics and an Ontario teaching certificate.[9] She applied for employment with Seneca College 10 times over a four-year period. Despite her credentials and years of experience as a teacher, the College never offered her an interview or provided reasons as to why she was rejected. The plaintiff also alleged that positions at the College were filled by non-Indian individuals with lesser credentials. She sued the College for discriminating against her on the grounds of ethnic origin and for breach of The Ontario Human Rights Code.

The trial court dismissed the claim for not disclosing a reasonable cause of action, but the Ontario Court of Appeal overturned the decision. The Court of Appeal explained that while the existence of the tort had never been recognized, it had also never been repudiated.[10] Furthermore, The Ontario Human Rights Code did not impede "the appropriate development of the common law in this important area", nor was it a reflection of the legislature's desire to exclude the common law remedy.[10]

On appeal, the Supreme Court of Canada rejected the Ontario Court of Appeal's attempt to develop the common law, holding that the tort of discrimination does not exist.[2] Justice Laskin stated that The Ontario Human Rights Code, as a comprehensive scheme which itself provides remedies, forecloses any civil action based on a breach as well as any action based on public policy expressed in the Code.[11]

Some scholars have scrutinized the persuasiveness of Laskin J's reasoning, pointing out that the Code does not, in fact, adequately uphold the public policy of non-discrimination.[12] Criticisms include the Human Rights Commission's overly broad discretion under the Code, the deficient remedies, and the delay in processing complaints.[5] In light of these considerations and subsequent case law, a strong argument has been made that the Supreme Court of Canada ought to "reconsider Bhaduria and finally recognize the tort of discrimination."[6]

The judiciable aspect of discrimination

While there is no tort of discrimination in Canada, courts may still rule on discrimination-related matters depending on the way claims are framed. This is seen in the way courts have been willing to adjudicate issues around discrimination which arise within existing causes of action.[13]

For example, in Attiboudeaire v. Royal Bank of Canada, the plaintiff alleged he had been constructively dismissed by his employer who had subjected him to differential treatment, including racist and sexist remarks.[14] He claimed that had he not been of African-Caribbean origin, he would not have received such treatment. The Ontario Court of Appeal distinguished the case from Seneca College v. Bhadauria, stating that this case was neither based on a breach of the Human Rights Act nor invoked based on public policy expressed by the Act. While the terms of the Act could be helpful in assessing the defendant's behaviour, the plaintiff's claim was one of constructive dismissal (a fundamental breach of the terms of the employment contract).

Another context in which courts have addressed discriminatory behaviour is workplace harassment. In the trilogy of cases Bannister v. General Motors of Canada Ltd.,[15] Gonsalves v. Catholic Church Extension Society of Canada,[16] and Simpson v. Consumers’ Assn. of Canada,[17] the plaintiffs were supervisors whose employment had been terminated due to their sexual harassment of female employees. Although the plaintiffs' claims of wrongful dismissal had succeeded at trial, the Ontario Court of Appeal ultimately held that their behaviour amounted to just cause for termination. The Court's decisions in these three cases have been positively regarded as "a clear stance on discriminatory conduct and the duty [of employers] to maintain a workplace free of discrimination".[18]

Similarities between discrimination and negligence

Discrimination and the Tort of Negligence: Some Important Similarities
In Prof. Sophia Reibetanz Moreau's guest lecture at Western University, she suggests that we can better understand discrimination through the lens of negligence.[19]

An interesting idea that has been posed is that discrimination is tort-like, not withstanding the fact that it has not been officially recognized as a tort in Canada. According to Prof. Sophia Reibetanz Moreau, there are several ways that anti-discrimination law frames discrimination as a personal wrong done by the discriminator to the discriminatee.[19] For example, in the model prescribed by human rights statutes, a person who believes they have been discriminated against must bring a claim against the alleged discriminator and show that they have been wronged in a way that entitles them to compensation.[19] Indeed, remedies are often compensatory in nature, ordered for the purpose of making up for harms such as injury to dignity, feelings, and self-respect.[19] Also, legislation typically requires the costs of accommodating the victim to come from the discriminator themself and not some public fund.[19]

Furthermore, Moreau suggests that not only is discrimination tort-like, but it is specifically akin to negligence.[19] Negligence in tort relates to the unreasonable creation of a risk while discrimination is a person's failure to treat someone else as an equal when they should have done so.[19] While these two wrongs are inherently different in nature, discrimination can still be understood as a form of negligence in the sense that it involves the unreasonable failure to do something, like changing a problematic rule or policy, and thereby causing harm to the interest of the discriminatee—that is, the interest of being treated equally.[19]

Humans rights legislation and tribunals

In the news
Ontario's human rights commission recognizes caste-based discrimination
A pyramid depicting the ancient Indian caste-based hierarchy, which determines a person's social standing based on their caste. The pyramid puts Brahmins at the top followed by Kshatriyas, Vaishyas, and Shudras.
The Ontario Human Rights Commission recently recognized caste-based discrimination as a violation of the Ontario Human Rights Code. The caste system is an ancient Indian hierarchy that determines a person's social standing based on ancestry.[20]

Canadian federal and provincial statutes provide protection against discrimination, though the effectiveness of such statutes has been criticized.[5] The Human Rights Act applies to people who work for or receive benefits from the federal government, to First Nations, and to private companies regulated by the federal government, such as airlines and banks.[3] In addition, the Act established the Canadian Human Rights Commission and the Human Rights Tribunal which resolve disputes around discriminatory practices under federal jurisdiction.[3][21]

Provinces and territories also have their own human rights statutes that govern areas of provincial and territorial jurisdiction, such schools and hospitals.[3] Provincial and territorial human rights agencies handle complaints of discrimination that fall under the province or territory's respective statutes.[4]

Notably, Quebec is the only province with a Charter of Human Rights and Freedoms,[22] which is not just an anti-discrimination statute but also a fundamental law with quasi-constitutional status.[23] In Quebec, the Charter takes precedence over all other laws except for the Constitution of Canada.[23]

Provincial and territorial human rights legislation
Alberta: Alberta Human Rights Act, RSA 2000, c A-25.5.
British Columbia: Human Rights Code, RSBC 1996, c 210.
Manitoba: The Human Rights Code, CCSM c H175.
New Brunswick: Human Rights Act, RSNB 2011, c 171.
Newfoundland and Labrador: Human Rights Act, 2010, SNL 2010, c H-13.1.
Nova Scotia: Human Rights Act, RSNS 1989, c 214.
Ontario: Human Rights Code, RSO 1990, c H.19.
Prince Edward Island: Human Rights Act, RSPEI 1988, c H-12.
Quebec: Charter of Human Rights and Freedoms, CQLR c C-12.
Saskatchewan: The Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2.
Northwest Territories: Human Rights Act, SNWT 2002, c 18.
Nunavut: Human Rights Act, CSNu, c H-70.
Yukon: Human Rights Act, RSY 2002, c 116.

Burden of proof

When an individual brings a discrimination claim to a tribunal, they have the burden of showing that a rule or practice treats them differently based on some prohibited grounds.[19] If the claimant does so successfully, the burden shifts to the employer to prove that the rule or practice in question is a bona fide occupational requirement.[19][24] The Supreme Court of Canada has set out a three-step test to determine whether an impugned standard can be justified as a bona fide occupational requirement:

  1. employer adopted the standard for a purpose rationally connected to the performance of the job;
  2. the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
  3. the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristic of the claimant without imposing undue hardship upon the employer.[24]

Discussion questions

  • Does Canadian human rights legislation provide adequate redress to victims of discrimination? Would the establishment of a tort of discrimination be a more effective way to compensate victims?
  • Is the comparison drawn between discrimination and negligence compelling? Does the framing of discrimination as a form of negligence support or undermine the argument that discrimination ought to be recognized as a distinct tort?


  1. ↑ Canadian Human Rights Commission (17 November 2021). "What is Discrimination?". Canadian Human Rights Commission.
  2. ↑ 2.0 2.1 2.2 Seneca College v. Bhadauria, 1981 CanLII 29 (SCC).
  3. ↑ 3.0 3.1 3.2 3.3 Kirkup, Kyle (3 May 2018). "Canadian Human Rights Act". The Canadian Encyclopedia.
  4. ↑ 4.0 4.1 Canadian Human Rights Commission (25 June 2024). "Other human rights agencies". Canadian Human Rights Commission.
  5. ↑ 5.0 5.1 5.2 Radnoff, Jeffrey; Foy, Pamela (2002). "The Tort of Discrimination". Advocates' Quarterly. 26 (3): 312.
  6. ↑ 6.0 6.1 Radnoff, Jeffrey (2002). "The Tort of Discrimination". Advocates' Quarterly. 26 (3): 321.
  7. ↑ Dagan, Hanoch; Dorfman, Avihay (2023). "The Tort of Discrimination". Journal of Tort Law. 16: 393.
  8. ↑ See Honda Canada Inc. v. Keays, 2008 SCC 39 at para 67.
  9. ↑ Seneca College v. Bhadauria, 1981 CanLII 29 (SCC) at 183.
  10. ↑ 10.0 10.1 Seneca College v. Bhadauria, 1979 CanLII 71 (ONCA).
  11. ↑ Seneca College v. Bhadauria, 1981 CanLII 29 (SCC) at 189, 195.
  12. ↑ Radnoff, Jeffrey; Foy, Pamela (2002). "The Tort of Discrimination". Advocates' Quarterly. 26 (3): 311–312.
  13. ↑ Radnoff, Jeffrey; Foy, Pamela (2002). "The Tort of Discrimination". Advocates' Quarterly. 26 (3): 314.
  14. ↑ Attiboudeaire v. Royal Bank of Canada, 1996 CanLII 1411 (ONCA).
  15. ↑ Bannister v. General Motors of Canada Ltd.,1998 CanLII 7151 (ONCA).
  16. ↑ Gonsalves v. Catholic Church Extension Society of Canada, 1998 CanLII 7152 (ONCA).
  17. ↑ Simpson v. Consumers’ Assn. of Canada, 2001 CanLII 23994 (ONCA).
  18. ↑ Radnoff, Jeffrey; Foy, Pamela (2002). "The Tort of Discrimination". Advocates' Quarterly. 26 (3): 317.
  19. ↑ 19.0 19.1 19.2 19.3 19.4 19.5 19.6 19.7 19.8 19.9 Western University (12 February 2018). "Sophia Reibetanz Moreau, "Discrimination and the Tort of Negligence: Some Important Similarities". Youtube.
  20. ↑ Bowden, Olivia (8 November 2023). "Ontario's human rights commission now recognizes caste-based discrimination. Here's what that means". CBC News.
  21. ↑ Cheung-gertler, Jasmin H (10 November 2008). "Canadian Human Rights Commission". The Canadian Encyclopedia.
  22. ↑ Charter of Human Rights and Freedoms, CQLR c C-12.
  23. ↑ 23.0 23.1 Canadian Centre for Diversity and Inclusion (January 2018). "Overview of Human Rights Codes by Province and Territory in Canada" (PDF). CCDI: 22.
  24. ↑ 24.0 24.1 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC) at para 54.
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