Discrimination (Meaning of)

Imperial Oil Limited v. Haseeb, 2021 ONSC 3868 (CanLII)

[3] Like those other tribunals, the HRTO resolves issues that can affect individual relationships but also broader concerns for the treatment, by government and others, of groups (some small, some large) of those who make up our society. The impact goes even further. In a time of quickly evolving social mores, the decisions of the HRTO determine the implementation of values that are basic to our society. They are not just legal decisions; they are decisions that speak to who we are as Canadians. They articulate what we, as Canadians, see as right and proper behaviour.

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Discrimination

[27] To discriminate is to distinguish between. In a legal context discrimination, as provided for in the Ontario Human Rights Code, is the act of distinguishing between people. We all discriminate. We do it whenever we treat two people, in similar circumstances, differently. To be illegal, that is contrary to the Ontario Human Rights Code, the different treatment, must be founded in one of the “grounds” listed in the Code. To distinguish between people on some basis, not referred to in the Ontario Human Rights Code does not breach the Code and is not discrimination contrary to the Code.

[28] Fundamental to any inquiry made by the HRTO is its determination that the impugned conduct makes a distinction founded on one of the specified “grounds”. In most cases, this is not a complicated question. In this case, it is difficult, and the finding made by the HRTO open to question.

[29] Discrimination can come in two forms:

It may be “direct” which is to say founded directly in the ground alleged to have been breached. The refusal of an employer to hire a man because he is a Catholic is direct discrimination. He is refused employment because of his religion, a ground referred to on the Ontario Human Rights Code.

Discrimination may be indirect (incidental). The failure of an employer to hire a man because he has a beard does not, on its face, offend any ground referred to in the Code. However, such a distinction means that Sikhs (whose religion requires a beard) are denied that employment and, like the Catholic, they are discriminated against on the basis of religion.

[30] The difference is important. In the first case all those implicated share the characteristic that is the source of the impugned treatment. They are all Catholics. Not all bearded men are Sikhs.