Summary
If you have ever spoken to an employment or human rights lawyer, you have likely heard a great deal about what discrimination is. What tends to receive far less attention, but is just as important for employers, is understanding what discrimination is not.
It is easy for employees to assume that being treated differently automatically means they have been discriminated against. After all, no one likes feeling singled out. But human rights law does not step in every time something feels unfair.
In the first article of this series, we examined how discrimination is defined and assessed under the Ontario Human Rights Code (the “Code”). While the legal threshold for establishing discrimination is relatively low, it is not limitless. This article focuses on common workplace situations where conduct may appear discriminatory at first glance, but is legally permitted—or falls outside the scope of the Code altogether.
The Goal is Substantive Equality – Not Formal Equality
Human rights law in Ontario is aimed at achieving substantive equality, not formal equality.
Formal equality focuses on treating everyone the same. Substantive equality recognizes that identical treatment can perpetuate disadvantage where individuals or groups start from unequal positions.
In practical terms, the Code is concerned with providing supports to eliminate barriers linked to protected grounds such as disability, family status, sex, race, creed, age etc. In its pursuit for substantive equality, the Code may:
- prohibit distinctions that create or reinforce disadvantage connected to a protected ground;
- require accommodation where failing to do so would perpetuate the discriminatory effect of a rule, requirement, or practice; or
- permit differential treatment, including targeted programs, where such treatment does not perpetuate discrimination.
At the same time, the Ontario Human Rights Tribunal (the “Tribunal”) has repeatedly affirmed the limits of its mandate. The Code is not a remedy for every workplace concern. As the sections below illustrate, unequal treatment, unfair outcomes, insensitive conduct, and strict management decisions do not automatically amount to discrimination.
Section 14 of the Code: When Differential Treatment Is Not Discrimination
One of the clearest examples of lawful differential treatment appears in section 14 of the Code, often referred to as the special programs provision. Section 14 expressly permits programs that are designed to help level the playing field, even where those programs differentiate based on protected characteristics.
Under section 14, the right to equal treatment is not infringed where a program is implemented to:
- relieve hardship or economic disadvantage;
- assist disadvantaged persons or groups to achieve, or attempt to achieve, equal opportunity; or
- contribute to the elimination of discrimination.
Where section 14 applies, it is a complete answer to a discrimination claim.
This principle was recently illustrated in Williams v Canada’s Walk of Fame / Allée des célébrités canadiennes, 2026 HRTO 351. In that case, the applicant alleged age‑based discrimination after being found ineligible for the Royal Bank of Canada Emerging Musicians Program (the “RBC EMP Program”), which limited participation to individuals aged 15 to 35.
Although age is a protected ground under the Code, the Tribunal found that the program fell squarely within the special‑program exemption. The RBC EMP Program was designed to address barriers commonly faced by younger, early‑career musicians, including limited access to mentorship, professional networks, and industry opportunities. In that context, the age‑based eligibility criteria were not discriminatory, but rather a lawful means of promoting substantive equality.
Unequal Treatment, Absent Historical Disadvantage, Is Not Always Discretionary
A great example of a decision where the Tribunal delineates the Code’s objective of substantive equality from formal equality is Maclean v The Barking Frog, 2013 HRTO 630 (“Maclean”).
In Maclean, the applicant alleged discrimination on the basis of sex after learning that men were required to pay a higher cover charge than women to enter a bar on a particular evening. He argued that this pricing practice, commonly associated with “ladies’ nights,” amounted to unequal treatment and therefore discrimination under the Code.
The Tribunal dismissed the application at an early stage, finding it had no reasonable prospect of success. While the Tribunal accepted that men and women were treated differently, it emphasized that differential treatment alone does not establish discrimination. To engage the Code, the distinction must create a disadvantage by perpetuating prejudice or stereotyping, viewed in its broader social and historical context.
That principle is reaffirmed in Lisikh v Ontario (Education), 2022 HRTO 1345 (“Liskh”). In that case, the applicant alleged that the Ontario Ministry of Education discriminated against his white son when it did not permit him to enrol in a publicly funded summer program offered exclusively to Black children. The Tribunal found that there was no discrimination and explicitly stated that “discrimination on the grounds of colour is not one that can be or has been successfully claimed by persons who are white and non-racialized” (see paragraph 19).
Taken together, these decisions underscore a central feature of substantive equality under the Code: unequal treatment, in the absence of historical or systemic disadvantage, is not discriminatory. Human rights protections are engaged not by every instance of differential or arguably unfair treatment, but by distinctions that reinforce or perpetuate inequality in its social and historical context.
Unfair is Not Always Discriminatory
The Tribunal has repeatedly confirmed that it has no jurisdiction over general allegations of unfairness. That principle was recently reaffirmed in Sookram v Workforce Planning Board of Waterloo Wellington Dufferin, 2026 HRTO 598 (“Sookram”).
In Sookram, the applicant, a Guyanese‑born person of colour, applied for a position with the respondent employer but was not the successful candidate. He asserted that he was the most qualified person for the job and ought to have been selected. While the applicant identified protected grounds and experienced an adverse result, the Tribunal dismissed the application because there was no evidence linking the hiring decision to those protected characteristics.
As the Tribunal explained, a belief that a decision was unfair, or that another outcome would have been better, does not establish discrimination. Without some factual basis showing that a protected ground played a role in the decision, a human rights claim cannot succeed.
Insensitive is Not Always Discriminatory
The Tribunal has repeatedly confirmed that rude, insensitive, or unprofessional behaviour, standing alone, does not automatically amount to discrimination under the Code.
This principle was illustrated in Nuur v Ontario (Solicitor General), 2025 HRTO 2093. In that case, the applicant alleged discrimination based on perceived disability after a single incident in which a corrections officer made comments such as “no glove, no love” and “no TB, only STD” while the applicant was incarcerated (see paragraph 1). The applicant believed the comments implied that the officer thought she had a sexually transmitted infection.
The Tribunal accepted that the comments may have been insensitive and that the applicant was genuinely upset by them. However, it found that the application did not engage the Code. The Tribunal concluded that a single instance of an insensitive or ill‑considered comment, absent evidence that it targeted a protected group or perpetuated prejudice, does not amount to discrimination.
The Tribunal emphasized that it does not have jurisdiction over every inappropriate interaction or poor communication, noting that rude or unprofessional behaviour, without a nexus to a protected ground, is not a violation of the Code. In the Tribunal’s words, while “something happened,” what happened was not a human rights issue (see paragraph 27).
Strict is Not Always Discriminatory
Performance management is another area where employers often worry about human rights exposure. Tribunal jurisprudence confirms that clear, firm, and even strongly worded performance communication is permissible, provided it is not motivated by a protected ground.
In Nespolon v Veltri Canada, 2016 HRTO 204, the Tribunal found that a strongly worded attendance‑related letter was not discriminatory. The key issue was not whether the employee was upset or unhappy with the communication, but whether the employer’s actions were linked to disability in a discriminatory way. They were not.
Legitimate performance management, attendance monitoring, and expectation‑setting remain lawful, and essential, aspects of the employment relationship.
Employer Takeaways
Understanding what is discrimination, and what is not, can help employers make workplace decisions with greater confidence. Not every unequal outcome, difficult interaction, or unpopular decision will trigger human rights liability.
At the same time, employees will continue to perceive differential treatment as unfair or discriminatory, and employers should therefore expect that their decisions may be questioned. For that reason, confidence must be paired with care. Decisions should be thoughtful, well‑reasoned, and well‑documented, grounded in legitimate workplace objectives and made with careful attention to any potential connection to protected grounds.
Up Next
The next article in this series explores the duty to accommodate, breaking down employers’ obligations, employees’ responsibilities, and where accommodation is no longer required because it would amount to undue hardship.
Need More Information?
For assistance with human rights compliance, special programs, or responding to Human Rights Applications, contact Jessica Krueger at Jkrueger@filionlaw.com or your regular lawyer at the firm.