Executive Summary: Key Legal and Evidentiary Issues

• Scope of s. 8 anti-reprisal protection under the Ontario Human Rights Code where no formal human rights complaint or proceeding was ever commenced
• Whether an online negative review alleging discriminatory scheduling can constitute “claiming or enforcing” a right under the Code for purposes of a reprisal claim
• Characterization of a lawyer’s cease and desist letter threatening civil proceedings as a “threat” for the first element of reprisal, but insufficient to satisfy the remaining elements
• Limits of the HRTO’s jurisdiction in dealing with public allegations of discrimination that are disconnected from accessing the Tribunal process
• Interaction between human rights anti-reprisal protections, freedom of expression, and the law of defamation when employers respond to public accusations
• Application of reasonableness review on judicial review of HRTO decisions, including deference to the Tribunal’s factual findings and interpretation of its home statute

Background and facts of the dispute

Daniel Wang was employed by 1355844 Ontario Inc., operating as Korean Grill House, in approximately 2014–2015. During his employment, Mr. Wang believed that work shifts were assigned in a discriminatory fashion. He alleged that older Cantonese-speaking women were given daytime shifts, while younger workers such as himself were relegated to weekend late-night shifts from 10 p.m. to 2 a.m. to perform tasks such as washing grills. Despite these concerns, Mr. Wang never brought a complaint to the Human Rights Tribunal of Ontario (HRTO) at the time, nor did he attempt to file a human rights application about those scheduling practices in the years that followed. Any such claim would in any event have become time-barred under the one-year limitation period in s. 34(1) of the Ontario Human Rights Code. In December 2022, long after the alleged events, Mr. Wang posted a negative review of Korean Grill House online. In that review, he asserted that the manager assigned “kids” the night shifts from 10 p.m. to 2 a.m. to wash grills because they were “kids,” while Cantonese-speaking women received the more desirable morning shifts instead. In response, counsel for Korean Grill House sent Mr. Wang a cease and desist letter. The letter demanded that he stop making the allegations and threatened civil legal proceedings if he did not do so. Mr. Wang then turned to the human rights system, but not to complain about the original shift allocation. Instead, he alleged that the employer’s legal threat, through its counsel’s letter, amounted to a reprisal or threat of reprisal contrary to s. 8 of the Code. He filed a human rights application claiming that Korean Grill House had violated the anti-reprisal protections because of his statements about alleged discrimination.

The statutory framework for reprisal under the Code

Section 8 of the Ontario Human Rights Code protects individuals from reprisals (or threats of reprisal) when they exercise, or attempt to exercise, rights under the Code. The provision states that every person has a right to claim and enforce their rights under the Act, institute and participate in proceedings under the Act, and refuse to infringe another person’s rights under the Act, without reprisal or threat of reprisal for doing so. The HRTO relied on the previously established test for reprisal from Noble v. York University. Under that framework, three elements must be shown: first, an action taken against, or a threat made to, the complainant; second, a link between that action or threat and the complainant’s having claimed or attempted to enforce a right under the Code; and third, an intention on the respondent’s part to retaliate for the complainant’s exercise or attempted exercise of Code rights. The Divisional Court held that the Tribunal correctly identified both the governing statutory provision and the legal test for reprisal. There was no reviewable error in this articulation of the law.

The HRTO’s decision on jurisdiction and the reprisal claim

The HRTO was required to address a preliminary issue: whether Mr. Wang’s complaint fell within its jurisdiction. The Tribunal raised this concern with Mr. Wang and gave him an opportunity to make written submissions. Because the question went to jurisdiction, the HRTO determined that no oral hearing was required and proceeded in writing, a process the Divisional Court later confirmed was proper. On the merits of jurisdiction and the reprisal claim, the Tribunal accepted that the cease and desist letter from Korean Grill House’s counsel met the first branch of the reprisal test, in that it was clearly a threat of civil litigation directed at Mr. Wang. However, the Tribunal found that the second and third elements were not met. There was nothing in the record to suggest that Mr. Wang’s online review was in any way connected to his having claimed or attempted to enforce a right under the Code. There was also no evidence that he had made a human rights complaint, filed a Code application, or otherwise sought a remedy under the Code when he posted his review or when the letter was sent. On that basis, the Tribunal concluded it could not reasonably find that Mr. Wang was “claiming or enforcing” a right under the Code. Consequently, it held there could be no intention on the employer’s part to retaliate for the exercise or attempted exercise of Code rights, since no such exercise had occurred. The HRTO therefore dismissed the application for lack of jurisdiction and absence of a proper reprisal claim under s. 8.

The reconsideration decision and arguments advanced by the applicant

Following the dismissal, Mr. Wang sought reconsideration by the same adjudicator. He argued that the Tribunal had interpreted the anti-reprisal provision too narrowly. In his view, the act of “calling out” alleged discrimination—by publicly objecting to discriminatory or harassing conduct—should itself be treated as claiming or enforcing a human rights right, even in the absence of any formal complaint or engagement with the Tribunal process. He maintained that his critical online review amounted to enforcing Code protections. The Tribunal rejected this submission and declined to exercise its discretion to reconsider the decision. It reaffirmed its earlier view that s. 8 is directed to protecting individuals’ access to, and participation in, Code-based proceedings and remedies, rather than broadly immunizing all public speech about alleged discrimination from adverse consequences.

Judicial review in the Divisional Court

Mr. Wang then brought an application for judicial review to the Ontario Divisional Court, challenging both the HRTO’s initial decision and the reconsideration decision. Because HRTO decisions are final and not subject to appeal, judicial review under the Judicial Review Procedure Act was the only available route to challenge them. The court applied the presumptive standard of review of reasonableness, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. Under this standard, the focus was on whether the Tribunal’s reasons and outcome were reasonable and fell within a range of acceptable, defensible outcomes in light of the law and the record. Before the court, Mr. Wang essentially repeated the submissions he had made to the Tribunal. He argued that s. 8 should be interpreted so that raising objections to discrimination in any public forum, including an online review, constitutes enforcing a Code right. As a result, he said, the cease and desist letter threatening legal action was a reprisal for his attempt to enforce human rights protections.

Court’s analysis of the scope of anti-reprisal protection

The Divisional Court rejected Mr. Wang’s interpretation of s. 8 and upheld the Tribunal’s reasoning. The court emphasized that the anti-reprisal provisions are designed to safeguard individuals’ access to the Human Rights Tribunal and the human rights process. In other words, the protection targets retaliation for using or attempting to use the Tribunal’s processes and remedies, not all forms of public speech about alleged discrimination. The court reasoned that to accept Mr. Wang’s broader interpretation would have significant consequences. It would expose employers and others to the risk of “wanton, vexatious, baseless” public allegations of harmful conduct, with little recourse for those maligned. The decision highlighted that while free expression is important, the law of defamation already contains multiple safeguards, such as defences and privilege, that balance free speech and reputational protection. Human rights anti-reprisal provisions do not function as a blanket shield for any and all public accusations of discrimination. The court also noted that even where a person has legitimately brought a human rights claim to the Tribunal, that fact does not grant them unlimited freedom to repeat their allegations beyond the litigation context without potential liability. The judgment referenced Hill v. Church of Scientology of Toronto, in which defamation proceedings were allowed to proceed based on statements read from a statement of claim at a press conference, even though those same allegations enjoyed absolute privilege within the court proceedings themselves.

Rejection of the “duty to speak up” theory

Mr. Wang also advanced an argument that he was under a sort of moral or legal duty to speak up about the alleged discriminatory scheduling to protect current employees. On this basis, he contended that the cease and desist letter amounted to a reprisal against him for “refusing to infringe the rights of another,” a phrase drawn from the language of s. 8 of the Code. The Divisional Court dismissed this contention in emphatic terms. It described the argument as obviously without merit and bordering on tendentious. In effect, the court accepted the Tribunal’s view that Mr. Wang’s conduct—posting a public review years after leaving his employment and outside any human rights process—did not fall within the statutory language of enforcing or refusing to infringe rights under the Code. The cease and desist letter was therefore characterized as a response to his public statements, not a retaliation for involvement in human rights proceedings or the enforcement of Code rights.

Outcome and costs awarded

In the result, the Divisional Court concluded that the HRTO’s decisions were reasonable. The Tribunal had correctly identified the governing statutory provision and applicable legal test for reprisal, reasonably assessed the evidentiary record, and properly determined that there was no factual or legal foundation for a reprisal claim within its jurisdiction. Mr. Wang’s application for judicial review was dismissed. The court ordered that the successful party, 1355844 Ontario Inc. o/a Korean Grill House, recover partial indemnity costs fixed at $3,900, inclusive, payable by Mr. Wang within thirty days. No costs were awarded to or by the HRTO, and there were no other damages or monetary awards beyond this costs order in favour of Korean Grill House.