The Human Rights Tribunal of Ontario has dismissed an application brought against Empire Auto Group, finding no discrimination on prohibited grounds in the hiring and interview process.
The decision, issued by Adjudicator Karen Mason, centred on allegations of disability discrimination, sexual harassment, sexual solicitation, and association with someone identified by a protected ground under the Human Rights Code. The applicant, R.F., contended that the company and its representatives failed to accommodate her alleged mobility limitations and engaged in inappropriate workplace behaviour.
After reviewing testimony, documents, and medical evidence, the tribunal held that R.F. did not establish discrimination and dismissed the application in its entirety.
R.F. claimed that Empire Auto Group did not accommodate her alleged mobility challenges and failed to consider her for a more suitable position. The company maintained that it had evaluated R.F. for a role based on her qualifications and did not perceive any need for accommodation during the brief interview process.
Alleged disability discrimination and accommodation issues
Central to the application were allegations that Empire Auto Group discriminated against R.F. based on disability. According to the decision, R.F. responded to a Facebook advertisement for a call centre position but did not indicate any special needs or request accommodation before the interview. Evidence showed that after reviewing R.F.’s résumé, the Manager of Business Development at Empire Auto Group identified R.F.’s automotive detailing experience and forwarded her information to the Sales Manager, who was hiring for a detailing role.
R.F. argued that the front entrance of the company’s premises was not accessible, alleging she had difficulty entering due to her claimed mobility limitations.
However, the adjudicator noted that R.F. did not request accommodation at any point. The decision states that “The applicant did not advise the respondent that she required any accommodation to attend the interview and I am not persuaded that she presented in a manner that would give rise to a duty to inquire on the respondent’s part.”
The tribunal further explained that for a duty to accommodate to arise, employers must be aware of the need. As the decision notes, “The duty to accommodate is a cooperative duty and requires the applicant, who is seeking accommodation, to provide sufficient information to allow the respondents to understand the nature of the disability.” R.F. presented no medical documentation establishing a disability at the time of the interview, relying instead on later-dated medical and physiotherapy notes related to accidents that occurred well after the job interview.
Without compelling evidence that R.F. was disabled under the Code’s definition or that she needed accommodation at the time, the tribunal found no discrimination. It stated, “I find that the applicant has not established discrimination due to the respondent’s alleged failure to accommodate her at the job interview.”
No requirement to create a new position
R.F. asserted that when the offered job—an auto detailing role—proved unsuitable for her alleged mobility issues, Empire Auto Group should have created a different position that would better align with her capabilities. The decision rejected this argument. Citing case law, the adjudicator confirmed that the duty to accommodate does not extend to creating new roles that fundamentally alter job duties. The decision quotes Perron v. Revera Long Term Care Inc.: “The respondent does not have a duty to create a new position for the applicant; fundamentally change the working conditions; assign the essential duties of an employee with a disability to other employees; or hire another employee to perform them.”
Empire Auto Group’s obligation, if any, was limited to assessing potential accommodation for the job it was offering—auto detailing—not granting a position for which R.F. was not qualified or was never actually offered. “There is no obligation for an employer to create a new position for an applicant,” the ruling states.
Sexual harassment and solicitation claims dismissed
R.F. also alleged that she experienced sexual harassment and sexual solicitation during the brief interview with the Sales Manager. She testified that the manager was “staring at my dress attire and breast area.” However, the adjudicator did not find sufficient evidence to support these allegations.
Crucially, R.F. did not raise the issue with the employer at the time. According to the ruling, “The applicant did not report allegations of sexual harassment or sexual solicitation by the Sales Manager prior to filing the Application.” Without prior notice, the employer had no opportunity to investigate. The tribunal explained that an organization’s duty to respond to alleged harassment generally arises once it is aware—or reasonably ought to be aware—of the issue. Since there was no indication that R.F. informed the employer of any improper conduct, the employer could not be found liable for failing to investigate.
As the ruling notes, “The major difficulty confronted by the applicant is that the requirement for a respondent to take reasonable steps to respond to and address a complaint of Code-related discrimination or harassment requires the applicant to have made such a complaint in the first place.” Absent such a complaint or report, there was no breach of the Code.
No association-based discrimination
R.F. further claimed discrimination due to association with a person identified by a prohibited ground. Section 12 of the Code protects individuals who experience discrimination because of their relationship or dealings with someone belonging to a protected group. The adjudicator found no evidence of such association-based discrimination, writing that R.F. “did not include in her pleadings or testify to any event of alleged discrimination that would engage Section 12 of the Code.”
Assessment of credibility
Throughout the decision, the adjudicator applied established legal tests for assessing credibility and reliability. The tribunal cited Faryna v. Chorney and R. v. Morrissey, emphasizing the importance of internal consistency and the harmony of alleged facts with the balance of probabilities.
R.F.’s testimony about what she disclosed during the interview was inconsistent, and her claims that she informed the employer of extensive mobility limitations conflicted with her later testimony. The adjudicator accepted the employer’s version of events, noting that the company’s witnesses provided a more consistent account of what took place.
Conclusion
After reviewing witness testimony, documentary evidence, and relevant legal principles, the Human Rights Tribunal of Ontario found that R.F. had not been discriminated against on any of the grounds alleged.
There was no credible evidence that Empire Auto Group denied her accommodation or treated her differently because of a disability, that it engaged in sexual harassment or solicitation, or that it discriminated based on association with someone else. As the adjudicator concluded, “I find that the applicant has failed to prove on a balance of probabilities that any of the actions of the respondent breached the Code.” The application was therefore dismissed.
See Featherston v. Empire Auto Group 2292261 Ontario Ltd., 2024 HRTO 1787 (CanLII).
