Written on behalf of Peter McSherry
In a frequently cited decision, the Human Rights Tribunal of Ontario (HRTO) confirmed that it does not have the power to deal with general allegations of unfairness, and dismissed a human rights complaint on the basis that the applicant had not established a clear link between her termination and a protected ground under the Human Rights Code (the Code).
The decision was a result of a human rights complaint filed by a terminated employee who claimed that her former employer discriminated against her based on race, colour, ancestry, and ethnic origin and that the employer had subjected her to reprisal when she attempted to assert her rights under the Code.
The employer in question is a social service agency providing services to vulnerable young people. Part of the services provided is a residence for young women.
The employee began her employment at the residence in 2013 as an overnight sleep worker and night counsellor. She was terminated in September 2013, still within her probationary period.
Following her termination, the employee filed her human rights complaint, making the allegations listed above, and specifically claiming that she had been terminated because a) she had called an on-call manager at 12:45 am to inform the manager that the residents were extremely noisy and that she was exhausted and b) she requested to be paid for the additional hours that she was kept awake.
While the employee had listed race, colour, ancestry and ethic origin as ground for the alleged discrimination she had suffered, she did not explain how the termination was related to any of these grounds. On her Application (i.e.- the form used to file her complaint with the HRTO) she self-identified as a Canadian of Caribbean origin; however, on the section of the form that asked “explain why you believe you were discriminated against because of your race, colour, ancestry…or ethnic origin”, the employee wrote “there is no other rational basis for [the] cruel, unjust treatment”.
The employee also did not explain how her termination had been the reprisal that she alleged. In response to the question on the Application that asked “Please explain why you believe you were reprised against”, she responded that the employer had no respect for workers’ rights (especially those of minorities), no respect for human rights, and that the employer was “very cliquish” and unprofessional.
The HRTO’s Notice of Intent to Dismiss
Upon receipt of the employee’s Application, the HRTO issued a Notice of Intent to Dismiss (NOID), informing the employee that her complaint appeared to be beyond the jurisdiction of the HRTO because she had failed to identify any incidents of alleged discrimination, and failed to identify how the employer had reprised against her.
The employee responded to the NOID through further written submissions in which she stated that her “reality” of the employer’s actions was that they were “racist”, and that “one knows when discrimination happens”, especially in the absence of any justifiable reason for that treatment. The employee further explained that she viewed the termination as a reprisal because it had occurred soon after she told the employer that she would be filing a complaint with the HRTO.
The matter was directed to a summary hearing so that the HRTO could decide whether the employee’s Application should be dismissed because it had no “reasonable prospect of success”.
“Reasonable Prospect of Success”
The HRTO’s Rules of Procedure, which govern every matter that comes before the HRTO, provide for the option of a summary hearing.
Once a summary hearing takes place, an Application may be dismissed (either fully, or in part) if the HRTO finds that there is no reasonable prospect that the Application will succeed.
The approach that the HRTO uses to make a decision on whether or not an Application will likely be successful is outlined in Dabic v. Windsor Police Service:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. 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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
In making a decision about the reasonable prospect of success of the Application filed by the employee in question, the HRTO noted that it does not have the power to deal with “general allegations of unfairness”. Essentially, in order for an Application to continue 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”.
Here, the HRTO analyzed whether there was a reasonable prospect that the employee could prove, on a balance of probabilities, that she had been discriminated against by her employer because of her race, colour, ancestry and ethnic origin (as she alleged) or that the employer had subjected her to reprisal because she had attempted to claim her rights under the Code.
The employee argued that her Application had a reasonable prospect of success. In support of her position, she repeated what she had previously indicated in her response to the NOID, emphasizing that minorities “know when they are experiencing discrimination”.
The HRTO Decision
The HRTO ultimately found that there was no reasonable prospect that the employee could prove, on a balance of probabilities, that the employer had fired her because of her race, colour, ancestry, and ethnic origin.
The employee had provided very little evidence that would establish a link between the termination and any Code protected grounds. The HRTO emphasized that:
[While the employee is] a racialized person and knows discrimination when she experiences it…her perception of discrimination is not evidence. It is not open to the Tribunal to make a finding of discrimination based on the applicant’s feelings or beliefs.
The HRTO also found that there was no reasonable prospect that the employee would be able to prove, on a balance of probabilities, that the employer had terminated her as a reprisal after she attempted to claim her rights under the Code. The employee’s allegation of reprisal “has no reasonable prospect of success because it is simply too vague”.
The employee’s Application was therefore dismissed following the Summary Hearing.
If you are an employee and believe that your employer has violated your human rights, you may have recourse against them. Guelph workplace human rights lawyer Peter McSherry can help protect your rights and advocate for your best interests. Contact us today by phone at 519-821-5465 or by e-mail to schedule a consultation.