Human rights claims are an increasingly common occurrence for Canadian employers. Employees or former employees can initiate these claims at little or no cost in most Canadian jurisdictions (the various provinces, territories, or the federal sphere).
An employer must defend human rights claims to avoid an award of damages or other orders. That can be costly. And in most cases, an unsuccessful employee isn’t responsible for paying any of the defense costs.
The low cost of filing and the lack of a gate-keeping procedure at most Canadian human rights agencies dealing with claims or complaints are major reasons. Claims can be filed that have no chance of success. Such claims often occur when the employee doesn’t understand what is needed to justify a finding of discrimination. In a recent decision, the Human Rights Tribunal of Ontario observed as follows:
It is evident that the parties are engaged in a number of work-related disputes and that the applicant feels that he has been treated unfairly by the respondents and his union. The Tribunal, however, is not a panacea for workplace disputes and general allegations of unfairness. The Tribunal’s authority is to determine whether there has been discrimination on a ground prohibited by the Code or a reprisal for asserting one’s Code rights. (Reid v. Molson Coors Canada, 2011 HRTO 427)
Some provinces have introduced methods to quickly and summarily dismiss claims that have no reasonable prospect of success.
British Columbia: A party responding to a human rights complaint may request an early dismissal of all or part of it. This can happen when the acts or omissions alleged in the complaint don’t contravene the Human Rights Code. It also can happen when there is no reasonable prospect that the complaint will succeed (Section 27 of the British Columbia Human Rights Code). The Human Rights Tribunal may dismiss the claim without a hearing or schedule a summary hearing to decide the issue.
The Tribunal has said that in a Section 27 dismissal application it won’t just consider whether there is a mere chance the complaint will succeed. Nor does it need to find that the complaint is certain to succeed. Rather, the Tribunal’s role is to assess whether, based on all the material before it, and applying its expertise, there is a reasonable prospect the complaint will succeed.
At a Section 27 hearing, the employee must establish a connection between the ground of discrimination relied upon and the alleged mistreatment by the employer. A complaint may be dismissed if the responding party can establish that the complainant has no reasonable prospect of being able to establish such a connection.
In 2011 thus far, the British Columbia Human Rights Tribunal has reviewed 18 employment-related applications to dismiss. The complaint was dismissed summarily in seven of the 18 decisions.
Ontario: In July 2010, the Human Rights Tribunal of Ontario introduced a new summary hearing procedure. The Tribunal may hold a summary hearing on its own initiative or at the request of a responding party. The hearing is to address the question of whether there is any reasonable prospect that the application or part of the application will succeed.
In some cases, the Tribunal will direct the respondents to refrain from filing a defense until the outcome of the summary hearing has been determined, thus saving the respondents the cost of preparing a full defense.
The September 2010 decision of Dabic v. Windsor Police Services sets out the two types of issues that will typically be addressed at a summary hearing:
- Whether, assuming all the allegations in the application are true, the applicant has a reasonable chance of success. The focus here is on the legal issue of whether the applicant’s allegations could be considered to be a violation of the Code; and
- Whether or not the applicant could reasonably show that his or her Code rights were violated. The focus here is on whether there is a reasonable prospect that the applicant can show a link between the alleged events and the prohibited grounds of discrimination.
In the 16 employment-related summary hearing decisions published so far in Ontario, 15 of the applications were dismissed.
Summary hearings can be an effective cost-saving measure for employers faced with human rights complaints that seem to be completely without merit. In some provinces, decisions can be rendered without a hearing. In others, hearings are short (half a day or a day), fast, and expedient (often by teleconference). Document disclosure may be limited.
Given the success of the summary hearing procedure in British Columbia and Ontario, it is expected that a similar process will be developed in all jurisdictions across Canada in the future.
If you, as an employer, are faced with a human rights complaint that seems groundless, ask your lawyers whether this option is available to you.