The Ontario Superior Court of Justice, Divisional Court, confirmed that employees have an evidentiary onus to prove a prima facie case of discrimination before the burden shifts to the employer to provide a credible and rational explanation that its actions were not discriminatory.

[2013] O.J. No. 3306

2013 ONSC 4218

Ontario Superior Court of Justice

A.M. Molloy, K.E. Swinton and A.L. Harvison Young JJ.

July 11, 2013

Walton Enterprises (the “employer”) made an application for judicial review of a Human Rights Tribunal decision that found that the dismissal of Mr. Lombardi, an employee of the Employer, was discriminatory. Mr. Lombardi worked as a service advisor. He had a history of depression and hypothyroidism. Additionally, he suffered verbal abuse from the assistant store manager including homophobic slurs. On one occasion at work, Mr. Lombardi engaged in a fist fight with another employee. Each participant blamed the other for starting the fight. Mr. Lombardi testified that he hit back to defend himself. A customer, and another employee, asserted that Mr. Lombardi started the fight. Mr. Lombardi was subsequently dismissed because it was determined that he had started the fight.

Mr. Lombardi filed an application under the Human Rights Code, R.S.O, 199, c. H. 19 claiming harassment and discrimination in employment based on disability, sex, sexual orientation and family status. The Human rights Tribunal of Ontario (the “Tribunal”) found that Mr. Lombardi had been harassed on the grounds of disability (depression and perceived obesity) and sex (perceived homosexuality) during his employment largely through text messages and comments by the assistant store manager. The harassment was found to have been known to and condoned by the Employer. The Tribunal did not resolve who started the fight but accepted that the fight was at least in part a reaction by Mr. Lombardi to being harassed in the course of his employment. An award of $20,000 was awarded to Mr. Lombardi for injury to dignity, feelings and self-respect caused by the termination of employment and the harassment.

While the Employer did not contest the Tribunal’s findings of harassment at the Divisional Court, it did challenge the Tribunal's conclusion that Mr. Lombardi’s dismissal was discriminatory. The Court allowed the Employer’s application reasoning that the Tribunal failed to properly assess whether the dismissal was discriminatory in light of governing legal principles and the evidence noting that “[a]ll one finds in the reasons is a bald statement that the fight was at least in part a reaction to the harassment”.

The Court confirmed that Mr. Lombardi had an evidentiary onus to prove a prima facie case of discrimination before the burden shifted to the Employer to provide a credible and rational explanation that its actions were not discriminatory. The Court found that the Tribunal failed to apply this analysis in support of the finding that the dismissal was discriminatory. It was unclear whether the Tribunal found a prima facie case of discrimination and did not accept the Employer’s explanation for the dismissal, or whether the Tribunal found a causal link between the harassment, Mr. Lombardi’s mental state and the fight. The Court noted the following at paragraph 40:

“it was incumbent on the adjudicator to examine and make findings about the key event that led to the dismissal - the fight - and the role the harassment played in the fight. In order to come to a reasoned decision that the dismissal was discriminatory, she had to determine what happened: who started the fight, what was Mr. Lombardi’s role in it; and what impact did harassment have on Mr. Lombardi’s participation? As there was conflicting evidence on these issues, the adjudicator needed to make findings of credibility, particularly with respect to Mr. Lombardi’s evidence, in order to explain and justify her decision.”

Because the Tribunal failed to make this analysis, the Court found that the Tribunal’s decision that the dismissal was discriminatory was thus unreasonable. The decision respecting the discriminatory dismissal and the proper remedy was set aside and the matter referred back to the Tribunal for a new hearing on that issue.