Michael Ford (post until Oct. 31/18)
Employment & Labour, Human Rights

Racism, discrimination should not be tolerated after Trump's win

Individuals should be aware of the legal actions available if they are targeted by discrimination or racism in the community or workplace, says Toronto human rights and employment lawyer Nicole Simes. READ Toronto Star

“There is significant protection in Ontario against discrimination,” says Simes, an associate with MacLeod Law Firm. “There are ways to assert legal rights against either businesses or other individuals who are perpetrating racism in certain contexts.”

A number of racist incidents have been reported across Canada and the U.S. following Donald Trump’s presidential win. Trump has promised to immediately terminate several programs supporting immigration and to build a wall to block illegal Mexican immigrants. While on the campaign trail, Trump suggested the need for a database of Syrian refugees and didn't rule out the introduction of a Muslim registry.

Signs posted in Toronto’s East York recently encouraged white people to join the “alt-right,” the Toronto Star reports, and a teenage boy was arrested in Ottawa after a spate of racist graffiti targeting religious communities, according to the CBC.

Simes tells AdvocateDaily.com that it is important to know people do not have to stand for racism or discrimination, and there are options for people enduring it.

In the workplace, an employer has an obligation to provide a discrimination- and harassment-free environment, she says.

“If racism is coming from a colleague and an employer knows about it, the employer has an obligation to take steps to prevent that from happening,” Simes says. Employees could notify human resources or managers. “If it is coming from the top and there is nowhere else to go, the employee may need to assert a human rights claim at that point.”

The Human Rights Tribunal adjudicates discrimination in the workplace, however if a person is fired or quits their job as a result of the activity, they may also start an action in court, she says.

“Beyond the workplace, people in Ontario are protected under the Human Rights Code on the grounds of services,” Simes says.

Services are anything that is promoted as being a benefit to the public, she says, such as restaurants or public transit.

“Where we’ve seen posters in East York about racism and white supremacy, with an anonymous racist poster in your neighbourhood, there is little legally speaking that can be done,” she says.

“But if that poster were in a shop where you are buying take-out food, for example, you potentially have a claim against that restaurant for promoting discrimination, as a breach of the Code.”

Free speech is often raised as a counterpoint to hate speech or discrimination, she says, but the success of such an argument depends on the context.

“The Human Rights Code is very clear on the obligation of service providers to not engage in discrimination — and if it’s happening in their business, to prevent it from happening.”

This was the scenario in Josephs v. Toronto (City), 2016 HRTO 885 (CanLII), in which a man was accessing services from the City of Toronto when he was called a “monkey boy” by another member of the public.

As Simes writes in a recent blog post, the man complained about the racial slur to a staff member and later filed a complaint with the city about how the staff member dealt with the situation.

“While the city was not responsible for the customer’s derogatory outburst, the manner in which the city staff responded to the man was a breach of his human rights,” Simes says, adding the tribunal awarded the man damages for the treatment from the city staff member.

“That goes to show how strong the protections are. The tribunal will find the city or businesses liable if they do not take steps to prevent discrimination.”

Protections against discrimination and racism also extend to accommodation, Simes says. So someone who is attempting to rent an apartment, for example, cannot be denied because of their race or religion.


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