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Vicarious Liability for Human Rights Violations

Under Ontario’s Human Rights Code (the “Code”), organizations have the ultimate responsibility to maintain a discrimination-free environment. An employer may be found vicariously liable for discriminatory conduct within the workplace even if they were unaware of the conduct or did not condone it.

Vicarious Liability

Under section 46.3 of the Code, where an employee or agent engages in discriminatory behaviour in the course of their employment, the organization will be held vicariously liable for the behaviour. That means groups such as corporations, trade unions, unincorporated associations, and employers’ organizations may be responsible for the action (or inaction) of others.

The Human Rights Tribunal (“Tribunal”) recently applied section 46.3 in Lambourn v. 2471506 Ontario Inc. In this case, Ms. Lambourn, a gas-station employee, advised her manager of her disability, called in sick, and provided medical notes. When she tried to return to work after her disability-related leave, the manager refused to schedule her for shifts. Shortly after, Ms. Lambourn was terminated from her employment.

The Tribunal found that Ms. Lambourn’s dismissal was discriminatory. However, a preliminary issue was that Ms. Lambourn, who self-represented at the hearing, misnamed the respondents.

During the hearing, the adjudicator’s questioning revealed that neither of the two named respondents were the owners; the actual owner was a numbered company. Since this fact was only discovered during the hearing, the adjudicator noted that if he found liability, the legal employer would be deemed liable for the actions of the two named respondents.

Normally, Respondents must be named as a party and formally given notice of the Application in order to be found legally responsible. In this unique case, counsel for the respondent confirmed that he actually represented the numbered company as well. He confirmed that the numbered company accepts liability should the adjudicator find a Code violation. As such, the adjudicator added the numbered company as an organizational respondent during the hearing!

Additional Ways Organizations May Be Found Liable

In some cases, the Tribunal has also found multiple organizations jointly liable where they all contributed to the discrimination.

Franchisors may also be found vicariously liable for their franchisee’s human rights violations. This depends on the nature of the franchise agreement and related factors.

Even more, employers may also be responsible for the actions of third parties and other such collateral persons. This arises where the third parties had power or control over the situation and the parties and condoned the discrimination nonetheless. Any such finding is highly fact-specific.

Exceptions

Vicarious liability generally does not apply to the portions of the Code dealing with harassment. There are exceptions to this as well. For example, where the harassment amounts to a poisoned work environment, or where management and/or certain employees were aware of or participated in the harassment.

Contact Us

If you are an employer and are being accused of being vicariously liable for your employee’s misconduct or human rights violations, or an employee and believe that your human rights have been violated in the workplace, our team of experienced employment lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.