November 16, 2023
In law, we talk about “causation” as the relationship between a person’s actions and the results that follow. It is a complex legal concept and differs by area of law. The application of the concept in human rights complaints differs materially from the general notions of causation.
Causation is an important concept to determine both liability and damages.
“Factual causation” is sort of like scientific causation – “but for” the questioned actions, the harm does not occur. This however could lead to absurd results, such as “If you didn’t get out of bed you would never have fallen”.
So, in addition to “factual causation, we consider “legal causation” which determines when the questioned event is enough of a contributing factor to be the legal cause of the harm.
Causation in Human Rights
In Human Rights, causation is viewed more broadly than in other areas, such as personal injury or criminal law. This is because:
- Human rights legislation is remedial, so any doubt is typically resolved in favour of helping members of protected groups.
- This creates educational opportunities for those accused of discrimination, even if a penalty is required to make the point.
- Discrimination is often subtle and complex, existing intertwined with non-discriminatory reasons for actions.
When considering a human rights complaint under Ontario law, we do not require strict “but for” causation- as long as the alleged discriminatory action has a causal link to the resulting adverse impact, a breach of the Ontario Human Rights Code may be found to exist. This is true even where other reasons for the alleged discriminatory action exist as part of that decision. So, if you refuse to rent to someone because of race, but their credit is also poor, you may be found to have discriminated. If you refuse to hire someone that you think is “too old”, it is not an excuse that they ranked lower in an interview than the person that was hired.
Another difference about human rights is that indirect discrimination, sometimes called “adverse impact discrimination” may be a breach of the Code. Indirect discrimination involves policies which appear neutral, but adversely impact individuals or groups. Height requirements might be an example, unless they are a bona fide occupational requirement.
A hostile or poisoned work environment may also be discriminatory, even where the complainant was not a specific target of the unwanted behaviour or comments.
Failure to accommodate a person’s needs, such as a disability, may also be discrimination.
HOW WEILERS LLP CAN HELP YOU
At Weilers LLP, we provide advice, representation and training in human rights to human resource professionals, managers or supervisors generally, and other groups which may be a target of complaints. We also advise and represent potential complainants under human rights legislation.
So, whether you think your rights have been violated, or want to prevent yourself or your organization from being targeted by complaints, give us a call and see if we are the right lawyers for you.