may have knowledge of facts or possess evidence of discrimination that is not
accessible to applicants.^121 The applicant need not make out an “air tight case” and
need not prove that the actions of the respondent “lead to no other conclusion but that
discrimination occurred.”^122
It is well established that respondents need not have intended to discriminate in order
for a finding of liability under the Code. A finding of discrimination may be made if the
effect of an action taken by a respondent was discriminatory, regardless of intent.^123 An
exception to this is discrimination in the form of reprisal, where intent is required.
Also well-established is the principle that discrimination may be found as a result of an
incorrect perception that a person has a disability, or as a result of imputing to a person
without a disability negative attributes or stereotypes as if the person had a disability. If
the result of these actions is reducing the person’s dignity and respect based on a
perceived disability, discrimination will be found.^124
Discriminatory treatment does not have to be the sole reason for the impugned
treatment. Code liability will be found even if discriminatory treatment is one of several
reasons underlying the actions complained of.^125
The legal doctrine of vicarious liability applies in the human rights context. Corporations
and employers will be found liable for discriminatory actions or omissions done by an
employee, officer, agent, etc. acting in the course of his/ her employment.^126
(^121) Touseant v. Thunder Bay (City), 2009 HRTO 2066 (CanLII) at para 11.
(^122) Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (FCA) at D/14.
(^123) O’Malley, supra note 14. At 331 the Supreme Court stated that “(t)he proof of intent, a necessary
requirement in our approach to criminal and punitive legislation, should not be a governing factor in
construing human rights legislation aimed at the elimination of discrimination.” At 329 the Court stated
that “(i)t is the result or the effect of the action complained of which is significant.” 124
125 School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 (CanLII) at paras. 41-45.^
Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Communauté
urbaine), [2004] 1 S.C.R. 789; Dominion Management v. Velenosi (1997), 148 D.L.R. (4th) 575 (OCA) at
- 126
Code, supra note 4 at s. 46.3(1).