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Recent decision upholds reasonable prospect criteria

reasonable prospectThe Human Rights Tribunal of Ontario is narrow in regard to its jurisdiction, dealing only with issues of alleged discrimination or harassment on the grounds set out in the “Code.” Following the filing of an application, the Tribunal of its own initiative may convene a summary hearing. Following the summary hearing, the Tribunal may decide to either continue with the application in full, or dismiss the application in part or in whole. The recent decision of Wilson v. J Sterling Industries examines the reasonable prospect of success criteria.

The matter

The applicant filed an Application with the Tribunal alleging discrimination with respect to employment due to race, colour, place of origin, citizenship, ethnic origin and sexual orientation. The applicant also alleged that the respondent, of Asian descent, favoured Asian workers.[i]

The background

As part of the summary hearing process, the applicant listed several examples of what he believed to be discriminatory on the part of his employer of five years.

Both the applicant and respondent gave submissions in regard to the numerous allegations that included the applicant being passed over for a managerial role, being refused a loan by his employer, and the termination of the applicant’s employment.

Each allegation was reviewed. For example, in regard to the termination, the applicant acknowledged that his termination letter stated that his employment had been terminated due to late attendance and absence from work. Reviewing the time sheets they reflected the fact that he had been late 11 times during the disputed period, and further, that his absences seemed to be consistent with the respondent’s complaints.[ii]

Analysis and decision

The Tribunal in its decision referred to the seminal case of Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII) at paragraph 9:

“…the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.”[iii]

The Tribunal found that that the allegations were unrelated to the applicant’s race and/or sexual orientation. Although the allegations were plentiful in nature, the applicant was unable to establish a nexus between the prohibited grounds and the alleged conduct of the employer. In the absence of this connection, the Tribunal dismissed the application as having no “reasonable prospect” of success.

The takeaway

The Tribunal does not have the general power to deal with allegations of unfairness, as the Tribunal’s jurisdiction is exclusive to issues of human rights and discrimination. In order for an application to be successful, the applicant must establish a connection between one or more of the protected grounds and behaviour on the part of the respondent.

Further readings

Summary hearings and the burden of proof at the HRTO

Summary hearings at the HRTO: Is an alternative explanation enough?

 

[i] Wilson v. J Sterling Industries, 2017 HRTO 1364 para. 1

[ii] Ibid., para. 21

[iii] Ibid., para. 6

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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