Back in April 2013, we reported on a Human Rights Tribunal (the Tribunal) decision where a summary hearing was granted and an application was dismissed as having no reasonable prospect of success. A newly released decision involving a beauty pageant demonstrates the Tribunal’s increasing and welcomed use of the summary hearing mechanism.
In Baksh v. Beauties of Canada et al., 2014 HRTO 1, Sandra Baksh (the Applicant) claimed discrimination after she was refused admission to a beauty pageant, allegedly because of her race and other similar grounds. The Tribunal on its own initiative considered a summary hearing application because “it appear[ed] that the applicant may be unable to prove a link to the ground or grounds alleged”.
The Tribunal reiterated the test applied at a summary hearing: Is there a reasonable prospect of success? This is determined after assuming that an applicant’s version of events is true. The Tribunal also noted that:
accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant’s belief that she has experienced discrimination.”
In this case the Applicant was a black woman whose designer clothing store supplies dresses for beauty pageant contestants. One of the Respondents was Beauties of Canada (the Pageant), the organization that selects Canada’s representative at the international Miss Universe Pageant. It does this by holding preliminary pageants in Canada.
In 2012 the Pageant allowed, for the first time, a transgendered woman to be a contestant. This attracted attention and became an international news story.
The Applicant had provided evening gowns for some of the Pageant’s contestants, including the transgendered contestant. She alleged that the transgendered contestant yelled at her when she was fitting her evening gown. She also alleged that the transgendered contestant kept her waiting, rejected dresses that had been ordered, and deliberately damaged one of the gowns.
The basis of the Applicant’s discrimination complaint was that:
a) she had attended the preliminary competition where several contestants were wearing gowns that she had provided. She alleged that she was later asked to leave the lobby once she began speaking negatively to the media about the transgendered contestant; and
b) she was later refused entry to the final competition of the Pageant. She alleged that she was told that this was because of her previous behaviour in the lobby.
Ultimately the Tribunal found that to have a reasonable prospect of success, the “applicant must be able point to some evidence that would support the proposition that there is a link between the treatment she complains of and the remaining grounds set out in the Application”. With respect to being asked to leave the lobby, the Tribunal found that it was simply an assumption by the Applicant that race was a motivation. Also, the Tribunal noted that the Applicant’s attempt to publicly broadcast her complaints about the transgendered contestant was a plausible explanation.
The Applicant was also unable to point to any evidence that her race was a factor in being denied entry to the final competition. The Tribunal found that she had no evidence on this allegation; she had nothing more than speculation.
Employers should take note of this decision, as many will at some point be on the defending end of a human rights application containing thin and unsupportable allegations. In such cases, consider whether it is appropriate to ask to the Tribunal to dismiss the complaint on a summary basis. The worst case scenario is probably that the request is heard and rejected. As is evident in an increasing number of cases, an employer may be successful and avoid the time and expense of a full-blown human rights hearing.
By Daniel Pugen and Benjamin Aberant
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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