|Editorial Obiter with Glenn Kauth|
Those are among the interesting questions explored in a Human Rights Tribunal of Ontario ruling, Saadi v. Audmax, that resulted in a court decision on a judicial review application this month.
Seema Saadi launched the case after her employer, Audmax Inc., fired her from her job as an intake settlement worker. Audmax is a company that receives public funding to run programs aimed at diverse ethnic and religious communities.
As HRTO adjudicator Faisal Bhabha noted, “the evidence establishes that discord in the office preceded the applicant’s hire,” including distrust over an incident in which a Muslim woman claimed she overheard a colleague making disparaging remarks about her appearance.
The case was very complicated and involved a number of issues at the workplace, but part of Saadi’s allegations of discrimination centred on Audmax’ microwave policy, which said that due to “food allergies and odour from some food, please refrain from or strictly limit the use of the Microwave [sic] for foods that present same.” Saadi, who is Muslim, claimed the policy “had an adverse discriminatory effect,” Bhabha noted.
In another instance, Saadi complained about the company’s dress code, which she had gotten into trouble for violating by wearing, among other things, a cap.
The cap, Saadi said, was a form of hijab she had bought online from Indonesia that she thought would be more elegant. Bhabha found the employer, Maxcine Telfer, had gone too far in dictating what style of hijab she would allow.
The Human Rights Code, according to Bhabha, guarantees people’s right to choose the form of religious headdress they wear.
In the end, Bhabha ordered the company to pay Saadi $15,000 for the violations in addition to $21,070 in lost wages. But in the Divisional Court ruling this month, Justice Anne Molloy, writing for a three-judge panel, was rather scathing in her criticism of the HRTO decision and overturned the award.
Part of the issues focused on procedural matters stemming from Bhabha’s refusal to accept the evidence of a defence witness. But she was also critical of the findings of discrimination.
On the microwave, for example, Molloy said Bhabha made no findings as to what food the company’s policy prevented Saadi from reheating.
“The reasons are so sparse on the factual underpinnings for this aspect of the
decision that it is impossible to follow the pathway by which the adjudicator came to his conclusion of discrimination,” Molloy, who was similarly critical of the findings about the dress code, wrote.
Regardless of the ultimate validity of either side, it’s clear that the HRTO ruling went too far. But hopefully misguided politicians like Ontario Tory Leader Tim Hudak won’t use such decisions as fodder for their bid to abolish the tribunal, which is part of a human rights system that has improved our society.
At the same time, what’s unfortunate is that cases like Saadi come about in the first place. At a workplace whose mandate deals precisely with issues of diversity, one would hope those involved would have prevented the problems in the first place or been able to deal with them without going all the way to an HRTO hearing.
- Glenn Kauth