The Ontario Human Rights Tribunal recently considered when an applicant in a human rights case has shown a prima facie case of discrimination on a prohibited ground under the Human Rights Code. The case is Race v. General Motors of Canada: Race v. Canadian Auto Workers.
The Tribunal quoted extensively from Jagait v. IN TECH Risk Management, which, it held, set out the appropriate test for determining whether an applicant has established a prima facie case:
The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that she has established a prima facie case of discrimination.
The Tribunal must be satisfied both that:
- the applicant experienced adverse treatment in relation to others, and
- the adverse treatment was based on a ground enumerated in the Code.
In the Race applications:
The focus of the applicant’s complaint in this case was the volume of the radio near her work station. She asked the employer and union to address this concern. She alleges that the employer and union failed to take appropriate steps to investigate and resolve her complaint and her co-workers harassed her because she complained.
The Tribunal dismissed the applications as the applicant was unable to get over the prima facie threshold.