Every individual in Canada is entitled to equal treatment and protection from discrimination in all facets of life. In Ontario, this protection is guaranteed by the Human Rights Code (the Code), which sets out legal rights in areas including housing, services, and employment. Specifically, section 5 of the Code prohibits discrimination in employment on the basis of several protected characteristics, including disability.

Despite these legal protections, disability discrimination remains an issue in many Ontario workplaces. Employees who experience such discrimination have the right to file a complaint with the Human Rights Tribunal of Ontario (HRTO). In this blog, we examine an example of workplace discrimination on the basis of disability, walk through how such claims are assessed, and outline the remedies that may be available when an employer fails to uphold their obligations under the Code.

Employee Terminated After Sustaining Back Injury on the Job

In Zhou v. BZ Nipigon Inc., the HRTO heard a complaint from a worker who alleged he was wrongfully dismissed and denied accommodation following a workplace injury. The complainant employee began working as a labourer for the employer in August 2019. Within a month of starting the job, he sustained a back injury while on duty. He immediately informed his employer of the incident.

Rather than providing support or exploring accommodations, the employer abruptly terminated the employee’s job without providing any justification. The employee then filed a claim with the Workplace Safety and Insurance Board (WSIB) and was awarded compensation for lost wages from September to October 2019.

Employer Failed to Pay WSIB Compensation, Issued False ROE

Following this, the employee sent the employer a text message explaining his injury and requesting modified duties to accommodate his physical limitations. The employer failed to respond and did not initiate any steps to discuss or offer accommodations, effectively cutting the employee off from further communication and support.

Adding to the harm, the employer also failed to pay the WSIB-ordered compensation in a timely manner. The employee filed a complaint with the Ministry of Labour, Immigration, Training and Skills Development (Ministry of Labour), prompting the employer to finally issue the payment. However, the employer then submitted a Record of Employment (ROE) that falsely stated the employee had been dismissed for misconduct. This misrepresentation led to the denial of the employee’s application for Employment Insurance (EI) benefits.

In response to these events, the employee brought a claim before the HRTO, seeking $30,000 in damages and an order compelling the employer to apologize for its discriminatory treatment.

What the Human Rights Code Says About Disability Discrimination in Employment

The Ontario Human Rights Code provides a robust framework to protect workers from discrimination, including on the basis of disability. Section 5 of the Code guarantees that every person has a right to equal treatment in employment. This protection extends to hiring, firing, promotions, training, and conditions of employment.

Disability, as defined in section 10(1) of the Code, is broadly interpreted and includes (but is not limited to):

• Physical disabilities caused by injury or illness;
• Mental health conditions;
• Chronic illnesses or medical conditions;
• Developmental disabilities; and
• An injury for which WSIB benefits were claimed or received.

Proving Discrimination in Employment in Ontario

A person who believes they have been discriminated against must prove, on a balance of probabilities, that discrimination occurred. This is a legal test requiring that it is more likely than not that the discrimination took place. To meet this threshold, a complainant must demonstrate three elements:

1. They have a characteristic protected by the Code (e.g., a disability);
2. They experienced adverse treatment (e.g., loss of employment and/or the employer refused to accommodate); and
3. Their protected characteristic was a factor in the adverse treatment.

Importantly, the discrimination does not have to be the only or even the primary reason for the treatment. It simply needs to be a contributing factor.

Understanding the Employer’s Duty to Accommodate

One of the core obligations under the Human Rights Code is the duty to accommodate. Employers must take steps to adjust working conditions or responsibilities to allow an employee with a disability to participate fully in the workplace. This duty includes both a procedural and a substantive component.

The Procedural Duty to Accommodate

The procedural duty requires the employer to investigate whether accommodation is possible. This involves gathering information, assessing restrictions, and consulting with the employee.

The Substantive Duty to Accommodate

The substantive duty involves actually implementing reasonable and effective accommodations, such as modifying duties, adjusting schedules, or approving medical leave.

Accommodation to the Point of Undue Hardship

Accommodation must be provided up to the point of undue hardship, a legal threshold that considers factors like cost and health or safety risks. However, undue hardship is a high bar, and most employers are expected to make significant efforts to accommodate employees wherever feasible.

Accommodation is meant to be collaborative and requires open communication between the employer and employee. Employers who fail to engage in this process or who ignore accommodation requests altogether may be found in breach of their legal obligations, even if they claim ignorance of the employee’s needs.

Tribunal’s Findings: A Clear Breach of the Code

In Zhou, the Human Rights Tribunal of Ontario found the employee had met all the legal requirements to establish discrimination. He had a protected characteristic (disability), he experienced adverse treatment (termination), and there was a clear link between his disability and the employer’s decision to terminate his employment.

The HRTO found the employer’s conduct raised several serious concerns. The employee reported a work-related injury, yet the employer provided no follow-up or support. It failed to explore any potential accommodations, even after receiving a request. Further, the employer delayed WSIB payments until compelled by a government body, after which it falsely stated the employee was dismissed for misconduct, leading to additional hardship.

Although the WSIB and Ministry of Labour documentation confirmed the existence of an injury, they lacked detail about what specific accommodations were required. However, the HRTO emphasized that this did not excuse the employer’s failure to fulfill its procedural duty to investigate accommodation. The employer defaulted on its obligations by failing to respond at all.

Remedies Available for Human Rights Violations in Ontario

Under section 45.2 of the Code, the HRTO has broad discretion to award remedies where a breach is found. These may include:

• Monetary compensation for lost income, expenses, or injury to dignity;
• Non-monetary remedies, such as public or private apologies; and
• Orders requiring policy changes, training, or reinstatement of the terminated employee.

When determining compensation for injury to dignity, feelings, and self-respect, the HRTO considers several factors, including the emotional and psychological impact of the discrimination and the complainant’s vulnerability (such as language barriers or immigration status). It also reviews the extent and duration of the discriminatory conduct and the intensity and nature of the harm caused to the complainant.

In Zhou, the HRTO noted that the employee had limited English proficiency, making it more difficult for him to navigate the legal system or secure alternative employment. The emotional distress caused by being fired shortly after a workplace injury, combined with the employer’s false allegations, added to the gravity of the situation.

Tribunal Awards Damages for Discrimination

Although the HRTO did not grant the full $30,000 sought by the employee, it awarded $15,000 in general damages for injury to dignity, feelings, and self-respect. This amount reflected the significant emotional and financial impact of being terminated following a workplace injury and the employer’s refusal to acknowledge or investigate accommodation. It also acknowledged the added harm caused by the false report of misconduct, which denied the employee access to EI benefits.

The HRTO also awarded pre- and post-judgment interest, in accordance with standard practice.

Lessons for Ontario Employers and Employees

The Zhou case is an important reminder of the rights employees hold under Ontario’s Human Rights Code and the responsibilities employers must uphold. For employees, it reinforces that injuries or illnesses that impact their ability to work may entitle them to accommodations. Employees do not need to know the exact accommodation needed to start the process, as the duty to investigate rests with the employer. Further, false or retaliatory actions following an injury may qualify as discrimination under the Code.

For employers, it is critical to remember that ignoring a request for accommodation or failing to engage in the process is not only unfair—it’s unlawful. Taking proactive steps to comply with the Code isn’t just good practice but a legal obligation that can help prevent costly disputes and reputational harm.

Contact Grosman Gale Fletcher Hopkins LLP for Experienced Employment Discrimination & Accommodation Advice in Toronto

At Grosman Gale Fletcher Hopkins LLP, we understand that allegations of discrimination and other human rights violations carry a significant emotional weight. These are serious matters that can lead to substantial legal consequences, including considerable damage awards. Whether you are bringing forward a claim or defending against one, before a human rights tribunal or through a civil lawsuit, our experienced employment lawyers are here to help. Our team has a proven track record of representing clients in these complex matters at both provincial and federal courts and tribunals. To discuss your employment discrimination matter, please call (416) 364-9599 or reach out online.