Gender Identity and Gender Expression: Provincial Level
In Ontario, gender identity and gender expression are provincially protected rights under the Ontario Human Rights Code, Part I, section I. For a more detailed explanation, please see the OHRC Gender Identity and Expression Brochure.
If you feel you have been discriminated against under one of the protected grounds, you can file a complaint with the Human Rights Tribunal of Ontario.
Employers violate the Ontario Human Rights Code when they:
- Directly or indirectly, intentionally or unintentionally infringe the code
- Authorize, condone, adopt, or ratify behavior that is contrary to the code
- Or constructively discriminate.
Employers are also liable if one of their employees violates the Ontario Human Rights Code, as per section 46.3, when discriminatory conduct occurs within the workplace. This can be true even if the employer actively discouraged the conduct or did not condone the conduct.
Proactive steps on the part of the employer are taken into account by the Human Rights Tribunal when ordering remedies which can result in an employer having to pay less in damages if deemed liable.
- Employers are liable for acts of ‘directing mind’ of a company – who discriminates against or harasses anyone in a way contrary to the Ontario Human Rights Code.
- Non-supervisors may be considered part of the ‘directing mind’ if they have assumed supervisory authority or have significant responsibility for guiding employees.
Employer liability is not limited to the workplace or work hours in instances of harassment or discrimination. Employers could be liable for behaviour or actions which occur away from the physical workplace, but which have implications or repercussions in the workplace (Ross v. New Brunswick School District No. 15,  1 S.C.R. 825.).
- Employers cannot contract out of protections in the Ontario Human Rights Code with employees or with unions.
- If a union does not act in a way to accommodate employee needs according to the Ontario Human Rights Code, that does not remove the liability of the employer to do so.
- A union is required to treat its members equally and to take steps to prevent or address discrimination against union members.
A) Collective Agreements
- Even when provisions protecting human rights and avoiding discriminatory policies are not explicitly included in collective agreements, the rights protected under the Ontario Human Rights Code and obligations within the Code are still incorporated and read into each collective agreement an arbitrator has jurisdiction over (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,  2 S.C.R. 157).
- Parties to a collective agreement can’t contract out of the provisions of the Ontario Human Rights Code.
B) Duty to Accommodate
- Employers and unions share responsibility for providing reasonable accommodation.
- When making a rule in the collective agreement, unions and employers must make sure the rule does not discriminate in its effect.
- Unions share the obligation with employers to remove or alleviate the source of discriminatory effects (Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970 (Renaud)).
- A union must support an employer’s efforts to comply with the Ontario Human Rights Code and may be found to have discriminated for impeding reasonable efforts of an employer to accommodate.
- A union should consider its duty to accommodate when engaging in collective bargaining or otherwise representing members who are employed to provide services to persons identified by the Ontario Human Rights Code.
- However, significant interference with the rights of others may justify a union’s refusal to consent to certain accommodation measures (Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970 (Renaud)).
C) Membership in a Union
- It is discriminatory for employees to have to join a specific union group based on gender or another Ontario Human Rights Code ground.
Test for Proving Discrimination
To prove discrimination, one must show a connection or link between the negative treatment experienced and one of the prohibited grounds of discriminated listed in the Ontario Human Rights Code. Even if the discriminatory ground (ie. gender) is only part of the reason for negative treatment, this is enough to prove discrimination according to the Human Rights Code.
Answering the following questions can help one determine if they have experienced discrimination that can be proved in a hearing before the Human Rights Tribunal:
- Do you have a personal characteristics that is listed as a prohibited ground of discrimination under the Human Rights Code?
- Were you treated differently than others?
- Or, if you were treated the same way as others, did this put you in a different position or have a different impact on you?
- Did this have a negative impact on your or put you at a negative disadvantage compared to others?
- Is there evidence to show a link between the negative treatment or the negative impact that you experienced?
In a hearing with the Human Rights Tribunal, evidence form both parties involved in the dispute is used to make a ruling. Facts are proven through evidence. Evidence comes in two main forms: oral, and documentary evidence. Oral evidence is what the applicant, the respondent, and the witnesses say under oath at a Tribunal hearing (this is referred to as “testimony”). Documentary evidence includes written records as well as photographic, electronic, or physical evidence. Examples of this would be letters, e-mails, minutes of meetings, etc.
The Tribunal will only allow parties to introduce evidence at the hearing if it is relevant to the issues to be decided.
Sources:; Ross v. New Brunswick School District No. 15,  1 S.C.R. 825; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,  2 S.C.R. 157; Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970 (Renaud); ; .