Rule 19A of the Ontario Human Rights Tribunal’s Rules of Procedure, allow the Tribunal to hold a summary hearing to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.[i] This was the case in Howell v. United Steelworkers, Local 7135.
The applicant was employed by National Steel Car, and had been a member of the union executive. The applicant alleged that during a union meeting in April of 2012, another union member refused to answer his questions. The applicant identifies as a black man. In his subsequent human rights application, the applicant alleged that this conduct on the part of the union member was discriminatory.
The applicant filed an Application at the Human Rights Tribunal alleging discrimination with respect to membership in a vocational association because of race and colour. The applicant also alleged that he was subjected to reprisal under the Human Rights Code. [ii]
The applicant called two witnesses on his behalf to testify as to the events of the April 9, 2012 meeting.
One of the witnesses declined to adopt a witness statement prepared by the applicant as he did not agree with its contents, adding that given the length of time that had passed, his recollection of the events were not strong.[iii]
A second witness stated that the applicant and another member were trying to speak at the same time and “bumping each other”. The witness then stated that another member asked the Applicant to apologize to the other member, and indicated that the applicant’s questions would not be answered. Testimony was lead that the reason for the refusal was that the applicant had “pushed” the other member.[iv]
The applicant testified that he complained to the union in regard to the incident at the meeting, as well as a number of ancillary issues. The Tribunal noted that other than the subject line which mentions racism and racial discrimination, there was no mention of the particular acts or omissions that the applicant suggests constitute discriminatory conduct.[v]
The question before the Tribunal was whether the application should be dismissed in whole or in part on the basis that there was no reasonable prospect that the application or part of the application would succeed.
In the analysis of the case, the Tribunal cited several examples of case law including
Dabic v. Windsor Police Service, 2010 HRTO 1994 stating:
Further, the Tribunal also cited Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
The Tribunal having reviewed the relevant facts, evidence and testimony, determined that the Applicant had not satisfied the Tribunal that there was any reasonable prospect that the Application would succeed.
As noted by the Tribunal, to succeed in his Application, the applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination in this case, the applicant must prove a link between the alleged discriminatory actions and the Code grounds he has identified.[vii]
In regard to the applicant’s allegation of reprisal, the Tribunal added that again, there was no reasonable prospect that the Application would succeed on this ground either.
Accordingly, the Application was dismissed.
Howell v. United Steelworks, Local 7135 serves as a reminder that it is within the power of the Tribunal to hold or grant a summary hearing to determine whether or not an application has a reasonable prospect of success. Further, this case also reminds applicants that the Tribunal does not have the power to deal with general allegations of unfairness, and that a link or connection must be made between the respondent’s conduct and the alleged prohibited ground.
[ii] Ibid., para. 1
[iii] Ibid., para. 8
[iv] Ibid., para. 10
[v] Ibid., para. 12
[vi] Ibid., para. 14
[vii] Ibid., para. 22