Yola Ventresca

All in the details: Ontario Human Rights Tribunal dismisses case based on “bald allegations” of discrimination

By Yola Ventresca

The Ontario Human Rights Tribunal recently released its decision in Eamon v Riley’s Valu-Mart, 2016 HRTO 162 (CanLII). The case involved an application to the Ontario Human Rights Tribunal which alleged discrimination in employment. The application included allegations of discrimination on the prohibited grounds of disability, sex, gender identity, gender expression, age and that the applicant was subjected to reprisal contrary to the Ontario Human Rights Code. The case is significant because it affirms that the Tribunal will not afford weight to bald allegations of discrimination not tied to the alleged impugned ground under the Code.

The applicant was employed by the respondent as a stock clerk for a little over a month. The allegations raised in his application included that he was pushed too hard at work, denied overtime, told to get back to work and forced to do more work even though he had unloaded “half the total workload by himself before lunch, subsequently the other two employees took a 1 hour lunch.”

During a summary hearing, the applicant stated that he “felt” and “believed” that he was treated in this manner on the basis of the enumerated grounds. The Tribunal commented that the applicant did not cite evidence in his possession or evidence that might reasonably be available to him upon which the Tribunal could rely to arrive at even an inference of discrimination. The Tribunal noted that the allegations were so vague “as to make it of little use to the Tribunal in determining the respondent’s actions were due to the grounds identified in his application.”

To this end, the Tribunal reiterated that:

Expectations that an individual will work hard, perform the duties of his position, and only take breaks when allowed to do so, do not constitute a violation of the Code. The applicant may perceive such requirements as unfair, however, the Tribunal does not deal with allegations of unfairness, but only with treatment that is discriminatory on an enumerated ground under the Code.

The applicant alleges that he was “talked down to” and told to “get back to work”. Even if true, the Tribunal has indicated that even “a demeaning tone” (Ahmed v. VPI, 2010 HRTO 1855 (CanLII) at paragraph 45) or “rudeness” (Fisher v. Sheidow, 2011 HRTO 2332 (CanLII) at paragragh 18) are not, in and of themselves, evidence of discrimination as opposed to frustration at the applicant.

On the facts of this case, there was no link to a prohibited ground. While an applicant might feel upset, frustrated or otherwise hard-done by, that, on its own, is not sufficient. There must be evidence presented that suggests a link to a prohibited ground or "evidence that would allow the Tribunal to draw an inference of discrimination."

This case is significant for both applicants and respondents. For applicants, it underscores the need to flesh out the specific nature of the allegation being advanced and provide evidence as to how the impugned conduct is linked with a protected ground under the Code. For respondents, it is another cue from the Tribunal that when faced with bald allegations, a respondent may want to request a summary hearing so that claims not capable of proof may be dealt with in an expeditious manner.

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