Summary hearings at the HRTO: Is an alternative explanation enough?
When a respondent is first made aware that a Human Rights application has been filed against them, often their first response is to deny any accusations and to request a summary hearing in hopes of disposing of the matter at the outset. While such hearings may be requested, it does not always work to the advantage of the respondent. Such was the case in the recent Interim Decision of Lomotey v. Kitchener Waterloo Multicultural Centre.
Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing is to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an Application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal. [i]
The applicant filed an application at the Human Rights Tribunal of Ontario alleging discrimination based on race, colour, ancestry, place of origin and ethnic origin with respect to employment. The applicant self-identified as black and of African origin. [ii] The applicant was the Executive Director of a not-for-profit organization that was designing a pilot project related to Trauma initiatives. His designation was to be that of the project manager. The respondent organizations, three in total, entered into a collaborative agreement to undertake the project together. The funding was provided by an outside source.
Shortly after the project began problems arose between the applicant and one or more of the respondents.[iii] The applicant alleges that eventually the respondents withdrew from the collaborative agreement, and continued without the applicant and therefore, the company of which he was the Executive Director.[iv]
The respondents alleged that they had concerns about the conduct of the applicant, which included an email by the applicant, and a “vicious verbal attack” resulting in the resignation of the project coordinator.[v]
The applicant denied these actions. Further, the applicant submitted that the respondents had in fact accepted the project manager’s allegations without permitting the applicant an opportunity respond to them, adding that the respondents had attempted to portray the applicant as a vicious and even violent person based on a stereotype.[vi]
After hearing submissions from both sides, the Tribunal stated in its Interim Decision:
…the Tribunal has repeatedly stated that it “is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.”[vii]
The takeaway is that although a respondent may have an alternative explanation for their conduct, it may not always be sufficient to have the application dismissed during a summary hearing. In fact, the respondent may spend additional time, money and resources only for the application to continue to the very hearing they had attempted to avoid.
[i] Lomotey v. Kitchener Waterloo Multicultural Centre, 2016 HRTO 428
[ii] Ibid., para. 1
[iii] Ibid., para. 6
[iv] Ibid., para. 8
[v] Ibid., para.10
[vi] Ibid., para. 12
[vii] Ibid., para. 15
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