Michael Conway - Ryder-Burbidge Hurley Foster
Individuals in Ontario who feel that their human rights have been violated can make an application to the Human Rights Tribunal of Ontario ("HRTO") to seek compensation for the alleged violation. The general idea is that an individual files an application with the HRTO alleging that an individual or organization discriminated against them. The person making the application becomes the Applicant. The individual or organization that the Applicant alleges discriminated against them becomes the Respondent. The Respondent gets the chance to respond to the claims against them. The issue is then resolved either by the parties settling their differences or by having a hearing in front of the HRTO where an adjudicator will decide whether the application will be successful.
Quite a few human rights applications will fail before this stage though. If, after receiving and reviewing an application, the HRTO decides that it may not be worth potentially holding a hearing then it will schedule a Summary Hearing. Under Rule 19A of the HRTO's Rules of Procedure, the Tribunal can order the parties to attend a summary hearing on its own initiative. At the summary hearing, the Tribunal will consider whether the application has a reasonable chance of success. If there is no reasonable chance of success, then the HRTO will dismiss the application. The applicant's claims of discrimination to the HRTO are over at that point.
There are a few ways that human rights complaints often fail at summary hearings. To understand how applications often fail, it is important to understand how human rights complaints work generally in Ontario.
Ontario Human Rights Claims Generally
The Ontario Human Rights Code protects people in Ontario from discrimination relating to:
· Housing (Accommodation)
· Goods, services, and facilities
· Membership in unions, trade, or professional associations.
The Human Rights Code protects specific personal characteristics. The protected characteristics are:
· Place of origin
· Ethnic origin
· Sexual orientation
· Gender identity
· Gender expression
· Marital status
· Family status
If a person, in one of the areas protected by the Code, is treated differently because of one of their protected characteristics and that differential treatment has a negative impact on them then that constitutes discrimination and a violation of their human rights.
For example if a landlord refuses to rent to Sally because she is a woman then that will likely be considered discrimination as the landlord is treating Sally differently based on her sex and that has caused negative impacts on her.
Conversely if the landlord refuses to rent to Sally because she is a fan of the Toronto Maple Leafs, that will not be considered discrimination as a person's sports affiliations are not a protected characteristic.
With this scheme in mind, there are several ways in which applications to the HRTO often fail at the summary hearing stage.
The Application Doesn't Rely on Anything More than Assumptions or Beliefs
As outlined above, a claim of discrimination must show that an individual was treated differently because of one of their protected characteristics. It will therefore become necessary at some point during the process to prove to the HRTO that the Respondent treated the Applicant differently because of their protected characteristic.
Applications are often dismissed at summary hearings because the Applicant can not point to any potential evidence which shows that the Respondent treated them differently because of their protected characteristic. The HRTO requires more than just strong beliefs and assumptions that someone was acting discriminatorily. If the Applicant can't show anything more than just assumptions and beliefs then their application will be dismissed.
That was the case in Ramsay v. Ontario Provincial Police. In that case, the Applicant was an employee of the OPP who had frequently argued and butted heads with management about discrimination and harassment of women in the workplace. She also was a "life-long learner" and held 7 university degrees and 8 college diplomas. The OPP offered a Tuition Assistance Program to help employees cover the cost of education. The Applicant had used the program in the past but when she requested that she be reimbursed for further classes her request was denied. The employer did not give her a reason for denying her request.
The Applicant made an application to the HRTO that she was discriminated against as her employer denied her request because of her sexual orientation, gender identity, and creed. She alleged that her employer was discriminating against her because of her history of campaigning against her employer and alleging harassment and misconduct in the workplace.
The Applicant was unable to point to any evidence though that her employer treated her differently because of her sexual orientation, gender identity, or creed. The Respondent never gave any indication whatsoever that they were denying her request due to any protected characteristics. The fact that the request was denied was not by itself evidence of discrimination. There were other potential reasons why the request was denied - the fact that the Applicant had already received significant amounts of money under the program for example.
The Applicant's sincere belief that she was being discriminated against was not enough to show potential evidence that her human rights had been violated. There needed to be some evidence that could potentially show that she had been discriminated against. Consequently, the HRTO found that there was no reasonable chance of success and the application was dismissed at the summary hearing.
An individual who has no evidence that they have been discriminated against and has only strong beliefs that it is true will have their human rights claim dismissed at a summary hearing.
The Application is About General Unfairness Instead of Discrimination
Discrimination according to the Ontario Human Rights Code, which can lead to a successful application to the HRTO, is a specific thing. It is when a person is treated differently because of a protected characteristic and they suffer negative impacts because of it. The link to a protected characteristic is crucial. Without the link the application becomes about general unfairness instead of discrimination. The HRTO does not deal with issues that only involve general unfairness and so it will dismiss an application at a summary hearing if there is no link to a protected characteristic.
That was what happened in Remes v. Toronto (City). The Applicant alleged that she was treated badly by the Respondent City of Toronto through one of their programs. She alleged that she was purposefully given incorrect and inconsistent information and was maliciously targeted to ensure that she would be sent to jail and that her identity would be stolen. The Applicant alleged that this was due to discrimination as she was a different race than the employees of the Respondent who had been allegedly targeting her.
The Applicant however was unable to provide any potential evidence which could show that there was a link between the alleged behaviour of the Respondent's employees and the Applicant's race. Regardless of any potential unfair and malicious behaviour, there was no evidence that there was any link between the alleged mistreatment and the Applicant's race. The HRTO will not consider issues that only involve allegations of general unfairness.
There must be allegations and evidence showing a link between the alleged unfair treatment and one of the Applicant's protected characteristics.
The Application Names the Wrong Party
Although it seems relatively simple that an Applicant will bring the complaint against the person or organization that discriminated against them, that is not always as easy as it seems. If an application to the HRTO does not name the correct party who is alleged to have discriminated against the Applicant then it will be dismissed at a summary hearing.
That is what happened to the application in Hassan v. George Weston Limited. The Applicant alleged that he had been discriminated against based on his race, colour, ancestry, place of origin, citizenship, and ethnic origin. While shopping in a Shoppers Drug Mart, he alleged that he was racially profiled by a security guard who followed him around the store the entire time he was shopping. The Applicant filed his application and only named George Weston Limited (GWL) as the Respondent. Shoppers Drug Mart is owned by Loblaw Companies Limited which is in turn owned by GWL.
The trouble was that GWL did not actually own the individual Shoppers Drug Mart stores. Each store was owned by an individual pharmacy owner who was allowed to use the Shoppers Drug Mart brand through a licensing agreement. GWL therefore was not involved in the day-to-day operations of the specific stores. It was not involved whatsoever in the incident where the Applicant was allegedly discriminated against. It was the pharmacy owner who owned the store and who was responsible for the security guard who allegedly followed around and discriminated against the Applicant.
The Applicant did not claim that the pharmacy owner discriminated against him though - he claimed that GWL discriminated. As such the HRTO had no choice but to dismiss the application as GWL was not involved in the incidents alleged.
An applicant must be careful that it names the correct individuals and organizations as respondents in their human rights application otherwise they risk accidentally naming parties who were not part of the alleged incidents and having their application dismissed.
The Application is not Written Coherently
While there is no specific way that an application must be written, it must be written and presented in a way so that the HRTO can properly understand the claims being made and the reasons why the Applicant alleges their human rights were violated.
If the application is not written clearly and coherently enough then the Tribunal will be unable to understand the application and will dismiss the claim at a summary hearing. This happened for example in Czyzewska v. Toronto University Police.
In that case the Applicant made various very vague and unclear allegations of discrimination. After reviewing the application, the Tribunal could not determine exactly what she was claiming and what events allegedly took place which were discriminatory. In response to this the Applicant was given the chance to address the Tribunal's uncertainty and make written submissions. These submissions totaled over 100 pages but were similarly incoherently and unclear as to what was being alleged. The applicant submitted documents which included patient and medical records from various hospitals and doctors, a letter from a bank in Poland, documents in other languages, and a letter from the Queen of England.
After reviewing all of the documents and submissions, the Tribunal was still unable to discern exactly what the applicant was trying to say and how she was alleging that the Respondent discriminated against her. The application was simply too unclear and incoherent and so it was dismissed at a summary hearing.
It is consequently important that applications are written in a way so that the Tribunal can understand an applicant's claims. Failure to do so could lead to the entire claim being dismissed.
Summary hearings serve somewhat of a gatekeeping function for the Human Rights Tribunal of Ontario. An application which is deemed to have no reasonable chance of success will be dismissed at a summary hearing for any of the reasons above.
The HRTO process can often be daunting and many applications will ultimately be dismissed through the summary hearing process. If you have any questions about whether there is a chance that an HRTO application, or potential application, has the risk of being dismissed at a summary hearing, or any questions about human rights concerns in general please contact Ryder-Burbidge Hurley Foster at 613-546-2147 or email [email protected] for assistance with your specific issue.
This article provides general information and does not constitute legal or other professional advice. It should not be relied on as legal advice or opinion. Please contact Ryder-Burbidge Hurley Foster for detailed legal advice should you have questions of any kind.