Recent case assessment direction and “creed”

September 25, 2019 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Recruiting and Hiring, 0

religious discrimination — Image: www2.qsrmagazine.com

The Halton District Catholic School Board posted a job advertisement for a contract position. The applicant replied to the advertisement, and when he was not selected for the position he filed a complaint at the Human Rights Tribunal of Ontario alleging discrimination on the ground of creed.

The background

The applicant claimed he was not hired because he was not Catholic. He had gone so far as to make this fact known at the outset of his job application. The respondent denied any Code-related allegations, submitting that being Catholic was not a prerequisite for the position. The Tribunal directed that the Application be sent to a summary hearing to address the issues.

The matter

The applicant stated that the wording in the job advertisement suggested that he needed to be Catholic in order to be considered for the job. The respondent disagreed stating that the advertisement listed the relevant aspects of the job, but did not state that being Catholic was one of them. The Tribunal in its decision stated:

“The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.”[i]

In determining whether or not the application should continue in the Tribunal’s process, the Tribunal indicated that for there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach.[ii]

The analysis and decision

The Tribunal sought to determine whether or not there was evidence or evidence that could be produced to support the allegation of discrimination during the job hiring process.

The Tribunal found that the job advertisement made no mention of Catholicism or a specified creed, and that being Catholic was not advertised as a requirement for the position.

The Tribunal having heard from both sides, found that the applicant was unable to sufficiently establish a link or provide evidence that he had a prospect of establishing discrimination with respect to employment based on creed. The Application was dismissed for having no reasonable prospect of success under “the Code”.

The takeaway

An Application at the Human Rights Tribunal of Ontario may be subject to a summary hearing where the applicant bears the onus in regard to evidence, and/or beyond that of speculation.

[i] Dodds v. Halton District Catholic School Board

[ii] Ibid., paragraph 28. Ford v Elementary Teacher’s Federation of Ontario 2011

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more