CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
ate, given the nature of the employment or essential duties of the position in question. Whether a specific job requirement constitutes a bona fide occupation requirement is a determination to be made by an adju - dicator. Burden of Proof The burden of proof rests with an employee to estab - lish, on a balance of probabilities, that an employer discriminated against them on the basis of a protected ground. The employee must show a prima facie case that there is a connection between the negative treat - ment and a protected ground of discrimination. An employee must only prove that the protected ground was a factor (ie, not that it was the sole or primary fac - tor) in the negative treatment to discharge this burden. The discharge of the burden possessed by an employ - ee will be impacted by the nature of the discrimination that is claimed. By way of example, when claiming direct (ie, intentional) discrimination, an employee must prove that a protected ground was a factor in an employer adopting a rule or practice. When claiming indirect discrimination (ie, adverse impact discrimina - tion) an employee must prove that a requirement, fac - tor or qualification resulted in an adverse impact on the basis of a protected ground. If discrimination is proven on a direct or indirect basis, the burden of proof shifts to the employer to defend their conduct based on a statutory exemption or by proving that the negative treatment was not in any way related to a protected ground. Remedies The range of remedies available to statutorily enacted employment and human rights tribunals generally tend to be broader than those available in a civil action. As an example, the Ontario Human Rights Tribunal has the ability to award financial compensation, non- financial remedies and public interest remedies. Non- financial remedies may include reinstatement, an offer of employment, a letter of reference as well as a letter of assurance of future compliance with human rights legislation. Public interest remedies are intended to be an educational tool and to prevent similar future dis - crimination from occurring. Public interest remedies may include ordering an employer to develop non-
discriminatory policies and procedures and to imple - ment mandatory education and training programmes in the workplace. In recent years, some human rights adjudicators have awarded significant damages for violations of human rights ranging between CAD25,000 and CAD40,000. In an exceptional 2021 decision, the British Columbia Human Rights Tribunal awarded significant damages of approximately CAD176,000 for injury to dignity, feelings and self-respect, in addition to more than CAD700,000 in compensation for lost wages. This decision reminds employers of the increasing and significant potential liability for breaches of human rights legislation. Human rights tribunals generally do not award costs or attorney’s fees to the successful party, with many lacking the authority to do so. 8.3 Digitalisation As a direct result of the COVID-19 pandemic, the Canadian justice system continues to conduct virtual proceedings for hearing matters before the courts and administrative tribunals. Currently, virtual attendance is the default method of attendance in some proceed - ings, such as case conferences or pre-trial confer - ences, examinations for discovery, and motions. Trials conducted both by judge alone and by jury, generally, have returned to in-person sittings overall. Labour boards in each jurisdiction in Canada (includ - ing the Canada Industrial Relations Board) have also embraced virtual proceedings to a degree. However, there is a resumption of in-person proceedings taking hold with virtual proceedings being considered by way of special request. Additionally, the Canadian courts and tribunals are embracing digitalisation of filing court documents, facta, compendiums, affidavits and other materials. The courts are also relying on selected digital plat - forms to share, view and present these documents in virtual and in-person proceedings.
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