Alleged Sexist Comments at OLRB Safety-Reprisal Mediation were Privileged, Could not Form Basis For Discrimination Complaint

An alleged comment that “women don’t like to do that job”, and other discussions at an Ontario Labour Relations Board safety-reprisal mediation, were privileged and could not form the basis for a discrimination complaint, the Human Rights Tribunal of Ontario has decided.

An administrative employee with the Alcohol and Gaming Commission of Ontario filed a safety-reprisal complaint under section 50 of the Ontario Occupational Health and Safety Act.  The parties attended mediation at the Ontario Labour Relations Board in that safety-reprisal matter.

She alleged, in a separate discrimination Application to the Human Rights Tribunal of Ontario, that at the OLRB mediation, she was told that her former administrative position no longer existed and was offered a mail clerk position but told that “women don’t like to do that job.”  In her Tribunal Application, she made a number of other allegations about the OLRB mediation.

The Tribunal decided, based on various sections of the Ontario Labour Relations Act, that the discussions at the OLRB mediation were confidential and without prejudice settlement discussions and as such were privileged.  Further, the OLRB mediator could not be compelled to testify as a witness before the Tribunal.  As such, the employee could not use the OLRB mediation discussions as a basis for her discrimination complaint to the Tribunal.

The Tribunal stated that there was no reason to depart from the Tribunal’s usual approach of not relying upon confidential and without prejudice settlement discussions.  Confidentiality is important in mediation, and no exception to the application of settlement (“without prejudice”) privilege was warranted in this case.

 Johnson v. Alcohol and Gaming Commission of Ontario, 2013 HRTO 471 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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