Human rights protections are among the most important in law. Being constitutional or quasi-constitutional in nature (depending on the context), most employers and service providers rightly pay close attention to their obligations with respect to avoiding instances of discrimination. However, sometimes no matter how good your people or process, a frivolous human rights complaint may come to visit your business.
A recent example of one such claim was the Queen v. Pro Bono Law Ontario (2014 HRTO 1092).
In this case, the applicant had sought the assistance of Pro Bono Law Ontario. The Tribunal described the facts as follows:
The applicant sought the services of the respondent to launch a civil suit for wages allegedly owed to him for his reign as Her Majesty the Queen. The applicant has apparently changed his legal name to Her Majesty (first name) the Queen (last name). Although he identified himself to the Tribunal by his previous legal name, he has submitted documentation to the Tribunal that appears to confirm his change of legal name, including a document of name change issued under the Vital Statistics Act, dated March 20, 2014.
The applicant’s case was turned down by Legal Aid Ontario on the grounds that there was no reasonable prospect of success. Not a surprising result. Nevertheless, the applicant commenced a human rights proceeding claiming discrimination on the basis of disability.
A summary hearing was held by the Tribunal. It was determined that even if all the evidence of the applicant was accepted, there was not a sufficient nexus between the applicant’s claimed disability and the rejection of his request for legal assistance to constitute discrimination. Accordingly, the claim was dismissed.
Lessons to be learned
According to statistics provided by the Report of the Ontario Human Rights Review 2012, approximately 35 percent of all applications to the Tribunal are dismissed on a preliminary basis. If you receive what appears to be a frivolous human rights claim, like the one described above, take the following steps to deal with the situation:
- Investigate the claim – No matter how fantastical the claim, start under the assumption that some or all of the facts may have some element of truth. Speak with relevant individuals in your organization and put together a strong understanding of the facts on your end. Sometimes you might be surprised and learn that there could be more merit, and thus more liability, to what sounds like a frivolous claim that you might initially suspect.
- Review the Tribunal’s initial assessment – On occasion, the Tribunal staff will themselves screen out questionable looking claims from the start. If this happens, you may not even be required to put in a response before a teleconference is scheduled to assess the merits of the claim. If you are fortunate enough to find yourself in this situation, prepare to help the Tribunal to focus on the key question – has the applicant put forward enough evidence to possibility make out a prima facie case? Do not spend too much time at this point getting into details such as accommodation or complex legal arguments. There will be time for that later should the claim survive.
- Use rule 19A – If the Tribunal does not schedule a summary hearing for your case you can request one anyway. This step will be appropriate to couple with your response. Under Rule 19A of the Tribunal’s Rules of Procedure, parties may request a summary hearing on the question of whether the claim has a reasonable prospect of success. Pro Bono Law Ontario used exactly this method in the case described above to have that claim dismissed before it even got off the ground.
If your organization faces a dubious claim, take prompt action and respond. Proceedings before the Tribunal, if left to take their normal course, can take up to two years to reach resolution. By proactively using the tools at your disposal, such as Rule 19A, you may be able to save considerable time and expense.
Vey Willetts LLP
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