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Employers should take advantage of Human Rights summary hearings

Summary hearings at the Human Rights Tribunal – A short history

A few years back, the human rights system in Ontario was overhauled. The Human Rights Commission was to no longer investigate complaints and refer them to the Human Rights Tribunal (if they had some merit). All cases were to now go directly to the Tribunal for adjudication. Applicants (who are primarily employees) would have “direct access” to the Tribunal.

While the goal was to speed up the process, many employers soon found themselves forced to attend a hearing to defend frivolous complaints. The Tribunal responded by adopting a summary hearing process, which can be initiated by the Tribunal or at the respondent’s request. Under this process, the applicant must demonstrate that the complaint has a “reasonable prospect of success”. The summary hearing usually occurs by teleconference with limited disclosure of documents. If the application is not dismissed, it moves on to a full hearing.

Since then, many cases have been dismissed by the Tribunal because the allegations could not be linked to a prohibited ground of discrimination. The Tribunal routinely commented that it had no jurisdiction to deal with allegations of “unfairness”. But what has truly been welcomed by employers has been the Tribunal’s increasing willingness to dismiss complaints that do relate to a prohibited ground of discrimination. In other words, the Tribunal has seen fit to dismiss complaints that, if the allegations are proven true, would constitute a breach of the Human Rights Code.

A very recent case from the Tribunal provides a great example.

Tribunal dismisses application based on speculation

In Perkins-Aboagye v. Greenboro Community Centre Association, the applicant made various baseless allegations against the community centre that she was discriminated against on the basis of race, sexual orientation and religion. Here are some examples:

  • During an exercise class, the applicant banged her elbow on an object on the floor when she tried to follow the class choreography. She complained to the community centre and received a message from the instructor that included a phrase that she was sorry that the applicant did not “understand the choreography.” The applicant alleged that this statement was a form of racial stereotyping and that it really meant that the applicant was not intelligent enough to understand the choreography because she was a “Brown Canadian citizen.”
  • After the above incident, and the applicant’s unpleasant experience with the class, the applicant received a voicemail stating “if you are coming back to the program I would very much like to talk to you one on one please and I do apologize if you feel offended in any way.” The applicant was also offered a refund. The applicant took these actions to mean that she was not wanted in the program because of her race.
  • During another exercise class the applicant felt that she had an “instant connection” with the instructor. She provided a gift to the instructor and sent letters and e-mails to the instructor detailing “personal and intimate details of her life.” The instructor replied in an “over-nice message” that she was not interested. The applicant sent more e-mails professing her affections for the instructor. The instructor responded by stating that she did not want any communication with the applicant. This did not deter the applicant. Eventually the president of the organization intervened and told the applicant to not attend the class. This led to the revocation of the applicant’s membership. The applicant claimed discrimination based on sexual orientation.
  • During an exercise class involving the same instructor, an employee of the centre had peered into the class with, allegedly, a “grave look of concern”. The applicant alleged that this same employee disapproved of same sex relationships and that this constituted harassment.

There are other allegations but you get the idea…

The Tribunal, thankfully, dismissed the case concluding that the allegations were “fueled by speculation that is entirely inconsistent with any reasonable interpretation of events.” The Tribunal was very clear that it will not put up with these types of complaints.

This Tribunal repeatedly has held that a bare allegation that a person has experienced discrimination because of a protected ground, which is based on the person’s own belief or assumption that she or he experienced such discrimination, is not enough to satisfy the requirement at a summary hearing for an applicant to establish that he or she has a reasonable prospect of success at a hearing.

In other words, the applicant could not come up with any objective or tangible evidence to support her own subjective belief. At the end of the day, common sense prevailed (albeit after a 19 page decision).

Employer takeaways

At some point, most employers will be defending a human rights application. Often times, the application is frivolous or based on the applicant’s own subjective belief. The Tribunal is making it increasingly clear that it has little time for speculative claims that have no evidentiary foundation.

Therefore, employers should be mindful of this development in the law and strongly consider asking the Tribunal to dismiss a case at a summary hearing as having no reasonable prospect of success (even if the application does relate to a prohibited ground of discrimination). Even if not successful, as many human rights applications are based on numerous allegations, the Tribunal may see fit to dismiss parts of the application that are based on speculation or which may be difficult to prove.

By Daniel Pugen

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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