Bhadauria, an Indian woman, was a qualified to teach in Ontario and had seven years experience. She had applied ten times to Seneca College but was never granted an interview. Bhadauria claimed that she was not interviewed because of her ethnicity and sued for discrimination in civil court rather than applying through the Ontario Human Rights Commission. Seneca College applied to have the claim dismissed. The Ontario Court of Appeal ruled there does exist a tort of discrimination as there is a right not to be discriminated against and as you cannot have a right without a remedy the tort must exist at common law.
- Does there exist a tort of discrimination at common law?
- If so, does Bhadauria have a claim against Seneca College?
- No such tort exists.
- No need to answer based on answer to #1.
The court ruled that the refusal to hire someone on discriminatory grounds has never been recognized by the common law. Human rights legislation took over for the common law rather than supplementing it. Based on a review of the pertinent legislation, the court concluded that the Ontario Human Rights Code prevents any civil action as the Code is so comprehensive that it covers all potential actions. Furthermore, as the Code has its own integrated remedies for statute breaches, creating new common law to address such breaches is unnecessary.
There is no such thing as a tort of discrimination.