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Discrimination Allegation Requirement: Involves the Necessity of Alleging Factual Details That When Proven Will Constitute a Violation
Question: How can I strengthen my discrimination claim under the Human Rights Code?
Answer: Providing specific details and tangible evidence linking your allegations to a protected ground is essential. Without this, your claim risks being dismissed at a Summary Hearing. Empower your case with concrete information to maximise your chances of success.
Allegations Must Contain Discriminatory Details
Allegations of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, must go beyond general perceptions of unfairness and be supported by tangible evidence of discrimination and be based upon a specified protected ground within the Human Rights Code. Understanding these nuances is crucial for effectively bringing forth claims and receiving appropriate adjudication. Claims submitted to the Human Rights Tribunal of Ontario without an adequate basis may, and likely will, be dismissed at an early stage via what is known as a Summary Dismissal hearing.
Key general issues often encountered at a Summary Dismissal hearing include:
- The Misinterpretation of General Unfairness:
Allegations may be hampered by misunderstandings where general feelings of unfair treatment are incorrectly equated with discrimination under the Human Rights Code. - The Lack of Specific Grounds:
Genuine concerns sometimes lack substantiation as they fall outside the protections as defined within the Human Rights Code, resulting in dismissal due to insubstantial evidence. - The Overreliance on Speculative Claims:
Claims founded merely on speculation or accusations without proper grounding can hinder the effective resolution of legitimate Human Rights Code grievances.
The Law
The requirement of allegations containing more than just a perception of unfairness or general mistreatment was stated within Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, among other cases, whereas it was said:
[17] The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, 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 or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
Summary Hearing Process
The Human Rights Tribunal of Ontario may, at the request of a Respondent or upon the own initiative of the Tribunal, conduct a Summary Hearing to determine whether an Application submitted to the Tribunal should be dismissed due to a lack of a reasonable prospect of success, meaning the unlikelihood that the claims hold muster, such as where allegations merely contain accusations of unfairness without a basis involving a protected grounds of discrimination. The potential for case dismissal at a Summary Hearing was explained within the case of Moses v. Argent, 2016 HRTO 974, wherein it was stated:
[4] The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
[5] The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.
[6] The test that is applied at the summary hearing stage is outlined in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”), as follows:
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. [Emphasis added]
[7] As indicated in the CAD the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground.
Conclusion
More than just bald allegations of discrimination are required when making a human rights claim. Allegations must contain details of the discriminatory conduct and the allegations must contain a nexus to a basis of protection as prescribed within the Human Rights Code. The failure to make adequate allegations may result in the dismissal of a human rights claim.