Scope of Jurisdiction (Human Rights Tribunal)

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Date Retrieved:	2024-12-22
CLNP Page ID:	2445
Page Categories:	[Human Rights],
Citation:	Scope of Jurisdiction (Human Rights Tribunal), CLNP 2445, <https://rvt.link/ei>, retrieved on 2024-12-22
Editor:	Sharvey
Last Updated:	2024/12/04

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Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (CanLII)

[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.

[18] The applicant has referred to the concept of prima facie discrimination. In my view, this concept is not helpful in interpreting the Tribunal’s summary hearing rule. In human rights law, prima facie discrimination has been used to mean various things. In some contexts – for example Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 and Jagait v. IN TECH Risk Management, 2009 HRTO 779 -- the term is used to refer to what claimant must show to avoid having a claim dismissed without requiring a respondent to call evidence. In others – for example Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1024 -- it refers to whether, assuming the allegations to be true, there is discrimination. In yet others – for example Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (C.A.) – it refers to what is required for a claimant to demonstrate discrimination within the meaning of the Code. In my view, it is much more helpful and understandable to parties to simply speak in the summary hearing context about whether there is a reasonable prospect the application will succeed as set out in Dabic. Accordingly, whether there is a reasonable prospect the applicant can prove a violation of the Code is the issue that was explained in the Case Assessment Direction and on the telephone during the summary hearing.

Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII)

[59] While the word "nexus" is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a "connection" between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a "factor" in the adverse treatment.

[60] I do not think it acceptable, however, to attach the modifier "causal" to "nexus". Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the [page94 ]discriminatory effects of conduct, rather than on intention and direct cause.

[61] I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case. This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.

...

[69] Shaw is an example of such a case. Shaw involved allegations similar to those in this case. In responding to the applicant's evidence, the respondent did not seek to invoke a statutory exception but merely sought to lead evidence to persuade the vice-chair his conduct was not discriminatory. Lang J.A. said, at para. 12, "This means that the onus lies on the complainant to establish discrimination on the balance of probabilities and that, if the complainant does so, the evidentiary burden shifts to the respondent" (emphasis added).

[70] The shifting of the evidential burden, as opposed to the burden of proof, is common in innumerable other legal contexts. For example, in criminal law, which is fastidious in maintaining the legal burden of proof on the Crown, accused confronted with evidence that they are in recent possession of stolen goods face the prospect of an inference of theft unless they explain how they came into possession of the goods. Only the evidential burden has shifted. The accused maintains the unquestioned right to remain silent. However, the accused faces the tactical choice of explaining or risking being found guilty.

[71] Sopinka J. explained the difference between the burden of proof and the evidential burden in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73, a medical malpractice case. Medical malpractice cases are an apt comparison to discrimination cases because as Sopinka J. observed, at p. 322 S.C.R., "The physician is usually in a better position to know the cause of an injury than the patient." At pp. 328-29 S.C.R., he said that in medical malpractice cases because "the facts lie particularly within the knowledge of the defendant . . . very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary". He recognized that "[t]his has been expressed in terms of shifting the burden of proof " and went on to explain why that is not correct. At pp. 329-30 S.C.R., he said:

It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted.