Summary hearings and the burden of proof at the HRTO
For an application to be fully processed at the Human Rights Tribunal of Ontario, the applicant must establish a nexus or “connection” between the protected ground they are alleging and the conduct of the respondent. This was reiterated in the recent summary hearing of Wasty v. Lone Wolf Real Estate Technologies.
The applicant, who self–identified as a brown coloured man, submitted an application to the Tribunal alleging discrimination with respect to employment because of race, colour and disability. In addition, he indicated that he had been diagnosed with chronic depression.
The applicant had worked for the respondent for approximately two months before being terminated. Although suffering from mental health issues, the applicant at no point had informed his employer of this fact.
The respondent stated that the applicant’s termination was not discriminatory but rather was due to the fact that his skill sets were not at the level it was expected for someone in his role.[i] The respondent concurred that they were not informed of the applicant’s disability.
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.[ii]
On May 27, 2013, a summary hearing took place for the purpose of determining whether or not the application should be dismissed in whole or in part because there was no reasonable prospect that the application would succeed.[iii]
Subsection 5(1) of the Code states:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
To show that the applicant had experienced discrimination contrary to the Code, the applicant would have to show that he was treated differently because of one of the listed grounds.
The primary focus in the summary hearing is on the applicant’s submissions. During the course of the summary hearing, the evidence demonstrated that the applicant’s work was returned to him more than once as it was deemed incomplete by the respondents. The applicant, in his application, stated that another brown person was terminated after the applicant was hired, and shortly before his termination the respondent hired another brown person.
The Tribunal’s position remained that it could not make a finding of discrimination based only on the applicant’s assumption or speculation.[iv]
In regard to the ground of disability, the Tribunal stated that the applicant failed to make his case as he was unable to support his allegations.
At the conclusion of the summary hearing, it was determined by the Tribunal that the applicant had failed to connect the behaviour of the respondent to his alleged grounds of discrimination. As a result the application was dismissed.
Wasty v. Lone Wolf Real Estate Technologies further demonstrates that the Tribunal cannot address general allegations of unfairness unrelated to the Code. In reviewing applications before the Tribunal, it does have discretion to dismiss applications at the early stage if such applications do not contain a reasonable prospect of success. As such, applicants going forward must be able to establish a causal link between the ground under the Code and the impugned behavior of the respondent.
[i] Wasty v. Lone Wolf Real Estate Technologies 2013 HRTO 957, para. 15
[ii] Lomotey v. Kitchener Waterloo Multicultural Centre, 2016 HRTO 428, para.2
[iii] Wasty v. Lone Wolf Real Estate Technologies, para.3
[iv] Ibid., para.19
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