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Does the Tribunal have the power to deal with allegations of “unfairness” at work?

Whether or not the Human Rights Tribunal of Ontario has the power to deal with general allegations of unfairness in the workplace was recently revisited in Murray v. YouthLink.

The matter

On September 25, 2014 the applicant filed an application with the Human Rights Tribunal of Ontario alleging discrimination against her with respect to employment because of her race, colour, ancestry and ethnic origin, in addition to reprisal for claiming her rights under the Code.

The applicant, who identified as a Canadian of Caribbean origin, had worked for the respondent for approximately 3 months and was still on probation when she was terminated. Her job was that of an overnight worker/sleep night counsellor at a social service agency which provided services to vulnerable young people.

The applicant claimed she had been terminated because (1) she had telephoned an on–call manager at 12:45 a.m. to explain that the residents were extremely noisy and she was exhausted, and (2) she had requested that she be paid for the hours that she was kept awake. [i]

The Tribunal issued a Notice of Intent to Dismiss (NOID) informing the applicant that the application appeared to be outside of the Tribunal’s jurisdiction because the application and the narrative setting out the incidents of alleged discrimination fail to identify any specific acts of discrimination within the meaning of the Code, and fail to identify how the respondent subjected her to a reprisal within the meaning of the Code.[ii]

The applicant filed a written submission in response to the NOID, again maintaining her position of racism.

The matter was sent to a summary hearing held by teleconference to decide whether the application should be dismissed on a preliminary basis as it had no reasonable prospect of success.

The Tribunal cited Dabic v. Windsor Police Service, 2010 HRTO 1994:

… Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.”[iii]

The issues

In the face of the applicant’s inability to articulate or provide a prima facie case of discrimination, the question became whether or not the Tribunal had the jurisdiction to proceed with the application?

The decision

The Tribunal stated that it does not have the power to deal with general allegations of unfairness and, as such, the Tribunal ruled that there is no reasonable prospect that the application would be successful, pointing to the lack of evidence connecting the termination and any Code grounds. The application was dismissed.

The takeaway

In order for an application to proceed under the Code, the application must establish a nexus or connection between the alleged behaviour of the respondents and the protected ground of discrimination, if not, the Tribunal does have the authority to dismiss the application at its early stages.

Also see:

Howell v. United Steelworkers, Local 7135: No reasonable prospect of success

[i] Murray v. YouthLink 2015 HRTO 1694 para. 3

[ii] Ibid., para. 5

[iii] Ibid., para. 9

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Kevin Sambrano, 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
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