Duty to Investigate (Human Rights)

Segal v. Toronto (City), 2011 HRTO 728 (CanLII)

[191] It is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination. See, for example, Nelson v. Lakehead University, 2008 HRTO 41 (CanLII).

[192] The rationale underlying the duty to investigate is to ensure that the rights under the Code are meaningful. The Tribunal explained this rationale in Laskowska v. Marineland, 2005 HRTO 30 (CanLII), at para. 53:

It would make the protection under subsection 5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment.

[193] In Laskowska, the Tribunal also set out at paras. 59-60 the relevant criteria for assessing the reasonableness of an investigation: The six criteria of corporate “reasonableness” in Wall have been adopted in previous decisions of the Board of Inquiry. I adopt a conflated version of them. The criteria are:

(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.

TSL-70657-16 (Re), 2016 CanLII 71321 (ON LTB)

26. It also appears that the Landlord could have done more to recognize that the Tenant is a person that has a disability or disabilities, and has needs that arises out of his disabilities. The evidence demonstrates that the Tenant visually presents as someone with a disability; his appearance and affect establish this point. The Tenant’s refusal to allow treatments, and the poor state of cleanliness of his unit should have caused the Landlord to recognize that the Tenant may have a disability. Next, the Landlord says that it routinely assists it tenants regarding getting help to prepare their units for pest treatments. S.V. acknowledges that those tenants who are in receipt of ODSP are unwilling to admit they have pest issues. The Landlord says 70% of its tenants receive ODSP as their means of income; this means that these individuals have disabilities that are sufficiently substantial and sustained so as to warrant income replacement from the government of Ontario. Thus, it would seem given these factors that it should have occurred to the Landlord that the Tenant may have a disability, and that he might fall into the class of tenants with a disability that do not admit they have pests.

27. A landlord has a duty to inquire or ascertain whether a tenant needs assistance before it attempts to terminate a tenant’s tenancy. The Human Rights Tribunal, in Robdrup v. J. Werner Property Management,[1] has explained the duty to inquire in the Human Rights Code accommodation context as follows:

[26] In my opinion, when a respondent knows, or reasonably ought to know, that the applicant has disability-related needs, the respondent has a duty to inquire into the situation before making any adverse decision that may implicate the applicant’s disability-related needs and adversely affect the applicant’s status. In the present case, if the respondent had made such inquiries, the respondent would have learned more about the relationship between Scooter’s barking and the applicant’s disability and may not have characterized the barking as a disturbance, nor relied on it as a basis for seeking early tenancy termination.

[27] The evidence establishes that the respondent, through Ms. Werner and both building superintendents, was aware that Scooter provided assistance to the applicant in relation to the applicant’s hearing disability. Ms. Werner acknowledged that, within three months of the tenancy, Ms. LePage advised her that Scooter was a service dog for the applicant. As such, the respondent was alerted to the fact that the applicant had disability-related needs and that Scooter played a role in assisting with those needs.

[28] When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group 2008 HRTO 50 (CanLII) and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 51 C.H.R.R. D/68. It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural (that being the process whereby the accommodation was considered) and 2. substantive (the accommodation that was achieved or the reasons for lack of accommodation), see: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at paras. 62-68.

28. One of the Landlord’s agents should have asked the Tenant if he needed assistance, and engaged him in a conversation regarding whether there were any specific things he needed to assist him with maintaining his unit. Further, S.V. knew that the Tenant’s sister provides him with assistance. At a minimum she should have raised the issue of accommodation with the Tenant’s sister. Had the Landlord made inquiries it is possible that the Tenant could have gotten help sooner, and the issues could have been resolved more promptly.

29. The Tenant failed to maintain his unit in an ordinary state of cleanliness and permit pest control treatments. Nonetheless, it is clear he has disabilities that gave rise to his failure to maintain his unit. Further, the Tenant’s disabilities gave rise to the Landlord’s duty to inquire into his needs for accommodation. The Tenant has now resolved the cleanliness issues in his unit, and cooperated with the Landlord’s request to perform pest control. Given all the circumstances I am persuaded that it would not be unfair to allow the Tenant to maintain his tenancy with conditions. However, I note that it is clear that it is crucial that the Tenant has community supports in place to facilitate him maintaining his housing. Hopefully the Tenant will continue to work with his care team to ensure he maintains his unit.