Discrimination — Ontario Employment Law
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About Discrimination
Discrimination in the workplace is not just about unfair treatment; it's about being treated differently because of a personal characteristic protected by law. In Ontario, the primary legislation governing this is the Ontario Human Rights Code (OHRC). This Code prohibits discrimination in employment based on specific 'protected grounds,' which include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, and disability.
Legally, discrimination can manifest in two main ways. The first is 'direct discrimination,' which is often obvious. An example would be an employer explicitly stating they won't hire someone because of their age or refusing a promotion to a woman because they assume she will soon have children. The second, and often more common, type is 'adverse effect' or 'constructive' discrimination. This occurs when an employer implements a seemingly neutral rule or policy that unintentionally disadvantages individuals from a protected group. For instance, a company policy requiring all employees to work on Saturdays could discriminate against employees whose religion observes a Saturday Sabbath.
To establish a case of discrimination, an employee typically needs to show a 'prima facie' case. This means presenting evidence that, on its face, suggests three things: 1) they are part of a group protected by the OHRC; 2) they experienced adverse treatment in their employment; and 3) their protected characteristic was a factor in that adverse treatment. It doesn't have to be the only factor, just one of them. Once this is shown, the burden shifts to the employer to provide a non-discriminatory explanation.
It's important to understand that discrimination claims can be pursued in two main ways in Ontario: through an application to the Human Rights Tribunal of Ontario (HRTO) or as part of a civil lawsuit in court, often connected to a wrongful dismissal claim. As seen in many court cases, a termination or constructive dismissal may be rooted in discriminatory conduct, leading to additional damages. Navigating which path to take is complex, and the best strategy depends entirely on the specific details of your situation, making early legal guidance invaluable.
Frequently Asked Questions
What is the legal difference between being treated unfairly and being discriminated against?
Unfair treatment, like having a difficult boss, is not illegal on its own. For treatment to be legally considered discrimination under the Ontario Human Rights Code, it must be linked to one of the protected grounds, such as your age, race, disability, or gender. The connection to a protected ground is the key difference.
Can I sue my employer for discrimination in court instead of going to the Human Rights Tribunal?
Yes, in Ontario you can include a claim for discrimination as part of a civil lawsuit, such as one for wrongful dismissal. This allows the court to award damages for the human rights breach in addition to any termination-related entitlements. Choosing between court and the Human Rights Tribunal of Ontario (HRTO) has significant legal implications.
What is the time limit for filing a discrimination claim in Ontario?
You generally have one year from the date of the last discriminatory incident to file an application with the Human Rights Tribunal of Ontario (HRTO). If you are pursuing the claim in civil court as part of a lawsuit, the standard limitation period is two years.
How can I prove discrimination if my employer never admitted their bias?
Direct evidence of discrimination is rare. Claims are often proven through circumstantial evidence, such as showing a pattern of negative treatment that began after you disclosed a disability, a suspicious timing of your termination, or comparing your treatment to that of colleagues who do not share your protected characteristic.
My boss is equally rude to everyone. Is this considered discrimination?
Generally, no. If a manager's poor behaviour is not connected to a protected ground under the Ontario Human Rights Code and is applied to all employees, it is likely not discrimination. It may, however, contribute to a toxic work environment that could potentially lead to a constructive dismissal claim.
What are the protected grounds for discrimination in Ontario employment?
The Ontario Human Rights Code protects against discrimination based on race, ancestry, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity/expression, age, record of offences, marital status, family status, and disability.
When should I consult an employment lawyer about potential discrimination?
You should consider consulting a lawyer as soon as you suspect a negative employment action—like a demotion, denial of promotion, or termination—is connected to a protected personal characteristic. A lawyer can help you understand your rights, the different legal avenues available, and the critical deadlines that apply.
Common Scenarios
- An employee who recently returned from a medical leave for a mental health disability is the first person selected for layoff during a restructuring, despite having more seniority than others.
- A retail manager consistently schedules an employee with young children for last-minute evening shifts after they requested a more stable schedule to accommodate childcare needs.
- During a job interview, a candidate is asked questions about their country of origin and whether they plan on having children.
- An older, long-serving employee is terminated and told the company is 'moving in a new, more dynamic direction,' while their duties are absorbed by younger, recent hires.
- An employee is subjected to persistent jokes and derogatory comments about their sexual orientation from colleagues, and management dismisses it as 'just locker-room talk'.
What You Should Know
- Keep a detailed, confidential journal of all incidents of suspected discrimination. Note the date, time, location, individuals involved, and exactly what was said or done.
- Preserve any relevant documents, such as emails, text messages, performance reviews, or company policies, that could serve as evidence of discriminatory treatment.
- Familiarize yourself with the protected grounds under the Ontario Human Rights Code to assess whether your situation falls under its protection.
- Be mindful of the strict deadlines: you have one year to file with the Human Rights Tribunal and two years to start a civil lawsuit. Missing these deadlines can extinguish your right to a remedy.
- Consult with an employment lawyer to determine the best legal strategy. They can advise on whether to proceed through the Human Rights Tribunal or as part of a civil court action for wrongful dismissal.
Featured Cases
S. v. Toronto Transit Commission
2026 ONSC 4170 (CanLII) · 2026-07-29Human Rights: Mask Policy & Disability Accommodation
This case involves a human rights complaint alleging discrimination based on disability where the plaintiff claimed a migraine disorder required accommodation from a mandatory mask policy. The court found that no prima facie discrimination was established because the link between the migraine and mask intolerance was not proven, resulting in no duty to accommodate. Additionally, the plaintiff's constructive dismissal claim was dismissed as the refusal to comply with the essential masking term constituted repudiation by the employee, though the court awarded one week of sick leave for a promised coded sick week.
G. v. Unity Health Toronto et al.
2026 ONSC 3778 (CanLII) · 2026-06-29HRTO Judicial Review: Procedural Fairness and Jurisdiction
The Divisional Court reviewed an application for judicial review of an HRTO decision that screened out a complaint for lack of jurisdiction. The court found the HRTO's determination that the allegations lacked a nexus to a Code protected ground was reasonable and that the tribunal's use of a written determination without an oral hearing did not deny procedural fairness.
B. v. Human Rights Tribunal of Ontario et al.
2026 ONSC 3624 (CanLII) · 2026-06-29Judicial Review: Human Rights Tribunal Employment Decision
This is a judicial review of a Human Rights Tribunal of Ontario decision regarding employment-related human rights complaints. The Divisional Court reviewed allegations of sex discrimination, a poisoned work environment, and reprisal in the context of the applicant's termination during a probationary period. The Court applied the Vavilov standard of reasonableness to the Tribunal's findings that the employer had valid, non-discriminatory reasons for termination and that the workplace environment allegations were unsubstantiated.
B. v. Precise ParkLink Inc.
2026 ONSC 1587 (CanLII) · 2026-03-17HRTO Judicial Review: Unreasonable Dismissal of Application
This is a judicial review of a Human Rights Tribunal of Ontario (HRTO) decision that dismissed an application under s. 34(11) of the Human Rights Code. The Divisional Court found the Tribunal's decision unreasonable because it failed to properly assess the substance of related proceedings and lacked justification, transparency, and intelligibility under Vavilov. The matter was remitted to the Tribunal for reconsideration.
Brandt Tractor Ltd. v M.M.
2026 ONSC 992 (CanLII) · 2026-02-23HRTO Judicial Review: Maternity Discrimination Upheld
The Divisional Court dismissed an application for judicial review of a Human Rights Tribunal of Ontario decision finding discrimination based on maternity or parental leave status. The Court upheld the Tribunal's findings that the respondent was a proper party, that lack of knowledge did not defeat the nexus to adverse impact, and that identical treatment of persons on leave could result in inequality.
C. v McArthur Island Inc.
2025 CanLII 150069 (ON SCSM) · 2025-09-18Wrongful Dismissal: 5 Months Notice for Project Coordinator
This wrongful dismissal case addressed whether the plaintiff resigned or was terminated during parental leave, with the court finding no clear resignation and establishing wrongful dismissal. The court also found a breach of the Ontario Human Rights Code due to discrimination based on family status and awarded damages for reasonable notice of five months.
M. v. IBM Canada Ltd.
2025 ONSC 3860 (CanLII) · 2025-06-30Systemic Age Discrimination: Motion to Strike Pleadings
This is an interlocutory motion to strike pleadings in a wrongful dismissal and human rights action against IBM Canada Ltd. The central issue was whether allegations of systemic age discrimination against executive-level employees and references to the termination of other employees were relevant, provable, or constituted an abuse of process. The court applied Rule 25.11 of the Rules of Civil Procedure to determine if these pleadings should be struck for being overly broad or irrelevant.
J. v. Swedcan Lumican Plastics Inc.
2025 ONSC 3022 (CanLII) · 2025-05-30HRTO Judicial Review: Discrimination & Accommodation
This is a judicial review of a Human Rights Tribunal of Ontario decision regarding an applicant's allegations of discrimination and failure to accommodate a disability. The Divisional Court applied the Vavilov framework to assess the reasonableness of the Tribunal's decision to dismiss the application for lack of evidence linking the treatment to Code grounds, as well as issues of procedural fairness and bias.
O. v. Attorney General of Ontario, et al.
2025 ONSC 2763 (CanLII) · 2025-05-16HRTO Judicial Review: Vaccination Policy & Creed
This is a judicial review of the Human Rights Tribunal of Ontario's dismissal of the applicant's human rights claim. The applicant, terminated for non-compliance with a mandatory COVID-19 vaccination policy, alleged discrimination based on creed and procedural unfairness. The Divisional Court applied the reasonableness standard under the Vavilov framework.
L. v. Metro Ontario Inc.
2025 ONSC 1975 (CanLII) · 2025-04-03Judicial Review: HRTO Dismissal for Abuse of Process
This is a judicial review proceeding in the Divisional Court concerning the Human Rights Tribunal of Ontario's dismissal of an application for abuse of process. The applicant, who had alleged employer discrimination and reprisal under the Human Rights Code, challenged the Tribunal's discretion and the denial of reconsideration. The Divisional Court dismissed the applicant's motions as meritless.
K. v. Human Rights Tribunal of Ontario
2025 ONSC 786 (CanLII) · 2025-02-05Judicial Review: Moot Human Rights Claim on Ethical Veganism
This is a judicial review proceeding concerning a Human Rights Tribunal of Ontario decision that dismissed claims of discrimination based on ethical veganism. The Divisional Court held the matter was moot because a settlement agreement had resolved the underlying dispute, meaning no live controversy existed.
O. v. Human Rights Tribunal of Ontario
2025 ONSC 710 (CanLII) · 2025-02-03Judicial Review: Human Rights Tribunal Dismissal
This is a judicial review of a Human Rights Tribunal of Ontario decision that dismissed an applicant's claims of discrimination and reprisal following their termination. The Divisional Court reviewed the Tribunal's finding that the termination was due to policy violations rather than perceived disability or discrimination based on association.
N. v. Human Rights Tribunal of Ontario
2024 ONSC 7129 (CanLII) · 2024-12-23HRTO Judicial Review: Discrimination Dismissal Upheld
This is a judicial review of a Human Rights Tribunal of Ontario decision dismissing a discrimination application. The Divisional Court upheld the Tribunal's procedural fairness in limiting cross-examination and its evidentiary rulings regarding will-say statements. The Court found the Tribunal's dismissal of the application reasonable, noting no Code-based differential treatment was found and the reasons were transparent and justified.
K. v. Idealogic PDS Inc.
2024 ONSC 5131 (CanLII) · 2024-09-16This case addresses the burden of proof and elements required to establish a prima facie case of discrimination under the Human Rights Code of Ontario, specifically concerning the duty to accommodate. It also touches upon issues of reasonable notice, likely in the context of remedies or procedural timelines within the human rights framework.
E. v. Rogers Communication
2024 ONSC 4477 (CanLII) · 2024-08-19This case involves a claim for damages, specifically punitive damages, arising from a human rights violation within an employment context.
M. v. Human Rights Tribunal of Ontario
2024 ONSC 2723 (CanLII) · 2024-05-15HRTO Judicial Review: Discrimination Without Prohibited Grounds
This is a judicial review of the Human Rights Tribunal of Ontario's decision to summarily dismiss the applicant's claim for lack of jurisdiction. The Divisional Court examined whether the Tribunal's decision was reasonable and procedurally fair, specifically addressing whether the applicant's allegations of unequal treatment constituted discrimination under the Human Rights Code without identifying a prohibited ground.
Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General)
2024 ONSC 1555 (CanLII) · 2024-03-18Judicial Review: Workplace Discrimination Arbitration
This is a judicial review application concerning a claim of workplace discrimination based on Anti-Black racism. The Divisional Court applied the correctness standard to the arbitrator's interpretation of the legal test for prima facie discrimination under the Human Rights Code, specifically addressing whether the arbitrator misapprehended the evidential burdens and the Moore v. British Columbia test.
Y. v. 30 Forensic Engineering Inc.
2023 ONSC 6475 (CanLII) · 2023-11-20HRTO Judicial Review: Application Dismissed
This is a judicial review of a Human Rights Tribunal of Ontario decision regarding employment discrimination and reprisal claims. The Divisional Court applied the reasonableness standard to assess the tribunal's findings on discrimination based on PTSD, race, place of origin, sex, and age, as well as the duty to accommodate and reprisal allegations. The court found the tribunal's reasons to be justified, transparent, and intelligible, and upheld the decision.
W. v. City of Toronto and Toronto Ombudsman
2023 ONSC 6192 (CanLII) · 2023-11-03HRTO Judicial Review: Discrimination Dismissed
This is a judicial review application concerning the reasonableness and procedural fairness of HRTO decisions that dismissed discrimination complaints. The applicant alleged discrimination based on race, ancestry, and place of origin but failed to establish a link between the adverse treatment and Code-protected grounds. The Divisional Court applied the Vavilov framework and reviewed the HRTO's decisions for error in law, jurisdiction, or bias.
Imperial Oil Limited v. H.
2023 ONCA 364 (CanLII) · 2023-05-23Human Rights: Discrimination in Hiring Based on Citizenship
This is an appeal to the Court of Appeal from a Divisional Court judicial review decision regarding a discriminatory hiring policy. Imperial Oil withdrew a conditional job offer from an entry-level engineer who held a three-year work permit because he was not a permanent resident or Canadian citizen. The Human Rights Tribunal of Ontario found this policy discriminated against the applicant on the basis of citizenship, but the Divisional Court overturned the decision. The Court of Appeal allowed the appeal and restored the tribunal's decision, finding it was reasonable to conclude that excluding eligible work-permit holders constitutes citizenship discrimination. The tribunal's award of $120,360.70 in damages for lost income, injury to dignity, feelings and self-respect, and pre-judgment interest stands.