The 2007 amendments to the Ontario Human Rights Code (the “Code”) removed the gatekeeper function from the Ontario Human Rights Commission and allowed applications to proceed, directly to the Ontario Human Rights Tribunal (the “Tribunal”). This direct access was a concern to many as it removed the “filter” from the process which screened out unmeritorious complaints, or those with no reasonable chance of success, and only permitted those with some merit to be heard by the Tribunal.
Anyone who has attended at the Tribunal or participated in mediation at the Tribunal, will know that much of the Tribunal’s time is spent dealing with applications that have no connection to the Code and, as such, fall outside the Tribunal’s jurisdiction.
The Tribunal recently considered their jurisdiction in a recent case. This case involved an application by a part-time professor at the University of Ottawa whose contracts were terminated after three weeks of classes. The termination followed 11 written complaints from students registered in the two courses taught by the applicant. The complaints, except for one comment in an initial complaint that the Tribunal found to be racist, all related to the applicants teaching.
A meeting with the applicant took place on September 20, 2011 in which the three complaints received by that date were discussed. Following that meeting, it was hoped that there would be improvement in certain areas of concern. However, on October 3, 2011, the applicant’s employment was terminated. The termination letter noted that:
I had hoped that the situation would improve following our meeting on Tuesday September 20, at 4:30 p.m., but since then, a number of other students have come to the Office of the Director of the Undergraduate Program to report increasingly serious concerns. There are multiple sources of discontent: lack of respect for the course structure, lack of respect for arrangements concerning assignments to be submitted as well as for the course schedule and deadlines indicated in the syllabus; lack of feedback and explanations for work to be submitted, lack of respect for students who feel ignored and insulted and lack of respect for class time.
The applicant’s union chose not to proceed with a grievance into the termination.
The Tribunal summarized the sum and substance of the complaints of discrimination and then considered whether the complaint ought to be dismissed.
Before the Tribunal can consider an application, it must first ensure that it falls within their jurisdiction under the Code. The Tribunal in C.M. v. York Region District School Board, 2010 HRTO 1494 (CanLII) put it this way:
The Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code.
Put another way, “the purpose of the Code is to address discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code.” (Kurdina v. Toronto Police Service, 2013 HRTO 2004 (CanLII)).
In other words, not all actions that may have an impact on people identified by a ground constitute substantive discrimination over which the Tribunal will assume jurisdiction. (Vallentyne v. Georgina (Town), 2013 HRTO 785 (CanLII))
If the applicant cannot establish a prima facie case of discrimination, his or her complaint will be dismissed as having has no reasonable prospect of success.
Such was the case in Beldjehem where the Tribunal observed that:
The applicant has not produced any evidence, direct or circumstantial, that could support that any of his race, colour, ancestry, place of origin, ethnic origin or creed were a factor in the decision to terminate his contracts. His belief that this is so, however sincerely he holds it, is not evidence.
That is, in many cases, the type of complaint that takes up the Tribunal’s valuable resources. Employees who, more properly, ought to bring a wrongful dismissal lawsuit or grievance chose, for one reason or another, to commence an application under the Code. The invariable outcome is that the application will either settle on some financial terms at mediation or be dismissed. In either case, it is frustrating, and costly, for employers to have to defend applications that clearly ought to be more properly brought in another forum.
The Tribunal has developed a number of mechanisms for trying through it’s Rules of Procedure and case assessment mechanisms, to proactively address some of the more deficient applications at an early stage. That said, the Tribunal’s hands are tied, somewhat, because of the “direct right of access” model currently found in the Code.
Take Aways for Employers
While most of our clients do not handle these cases using their own internal resources, it is important to be alive to the jurisdictional issues that these cases increasingly present.
It is important to appreciate the pressures and constraints in which the Tribunal finds itself. Although the OHRC filter and screen has been legislatively removed, that does not mean that there are no other means of having the application dismissed in a timely and cost effective manner. It is important to understand this and work within the new rules to, whenever possible, hit the right trigger to make that happen.
Finally, it is important to understand that complaints about allegedly unfair treatment (no employee is ever pleased with being performance managed or terminated) is not the same as discrimination under the Code.