Thursday, January 17, 2013

The Human Rights Tribunal's new Gatekeeper: Itself

It is common today to see critics arguing that Human Rights Commissions and Tribunals will hear too many nonsense claims, putting respondents to the expense of having to defend themselves, without the availability of costs sanctions.  As I noted recently, some critics argue for the abolition of human rights processes altogether, advocating for substantive human rights concerns to be adjudicated by Courts.

There are several problems with this argument, not the least of which is that human rights processes have built-in gatekeeper roles, and the Courts don't.

For Court actions, lawyers kind of serve as gatekeepers.  If a client wants to pursue a case with little-to-no chance of success, the lawyer will explain that, and the client may no longer wish to pursue it.  As well, a proper statement of claim requires a certain expertise, and that expertise is expensive, meaning that most people need a lawyer, so claims that aren't worth paying a lawyer...often don't get to Court.

However, while a lawyer is usually necessary to draft a *good* statement of claim, it is not that difficult or uncommon for self-represented litigants to take a stab at it themselves, where they can't get a lawyer for whatever reason, in which case they only need to pay a filing fee.  Which means that it is not so uncommon for the Courts to receive poorly drafted claims, often with extremely tenuous merits.  What will the Court do with it?  At the start, the same thing it does for every claim:  Assuming that certain basic formal requirements are met, it will issue the claim, and take a copy and put it in the file.  It's up to the plaintiff to serve the defendant, and once the plaintiff has done so, the defendant has to defend or else have a judgment issued against it.  If there's something obviously substantively deficient with the claim, such as not making out any cause of action, etc., it's still up to the defendant to incur the costs of bringing the motion to dismiss the action.  And while such a plaintiff may be ordered to pay some or (very rarely) all of the defendant's costs, such plaintiffs seldom have the money to satisfy significant costs awards.

Human rights processes, however, are different, having substantive review at an early stage.  Ontario now has a "direct access" system, meaning that applicants apply directly to the Tribunal.  However, before getting into the results of that, let me explain the Commission system, which exists in several other jurisdictions in the country, and which Ontario had until 2008:

Ontario's Old Human Rights Process

Until 2008, a complaint of a breach of the Human Rights Code had to go the Human Rights Commission.  The Commission would review the complaint, contact the complainant if there appeared to be problems on the face of the complaint, and then would begin an investigation (unless there was a reason to refuse to deal with the complaint up front, such as it being out of time, or being more appropriately dealt with in another forum).  Once it completed its investigation, if it was satisfied that there was merit to the complaint, it would refer the complaint to the tribunal for a hearing.  Otherwise, the complaint would be dismissed.

If the Commission dismissed a complaint, the complainant's only recourse would be through an application for judicial review, arguing that the Commission made a mistake which should be reviewed by the Courts.  Accordingly, the Commission had to dot its "i"s and cross its "t"s in the investigation.  Between that, and an immense caseload, a backlog developed.  Investigations took years.  Also, respondents had no remedies for Commission errors favouring the complainant:  If the Commission referred a nonsense complaint to the Tribunal, the respondent couldn't seek judicial review, but rather needed to simply proceed to the Tribunal and fight it there.  Accordingly, the Commission had to guard against the risk of judicial review by the complainant, but never by the respondent.  Add to that the fact that the Commission had a public interest mandate to protect against human rights violations, and the Commission often looked complainant-friendly, and was perceived as leaning too hard on respondents.

So the Commission would take years to investigate complaints, leaving the litigation axe hanging over the head of a respondent for years, and requiring a prudent employer to retain counsel through the investigation to protect its interests, and then if it found that the complaint was warranted, a whole new legal proceeding went forward.  It made more sense to simply go straight to the Tribunal.

However, there was value in the Commission's gatekeeper role.  People don't entirely understand what human rights are all about, and so a lot of complaints had absolutely no relationship to the Human Rights Code, and accordingly absolutely no chance of success.  The Commission dealt with a lot of chaff, and got it out of the system relatively easily.

The New System

Now, an applicant applies directly to the Tribunal, the Tribunal sends the application to the respondent, the parties exchange documents, and proceed to a hearing.  Yes, it's a bit more complicated than that, but that's the gist of the process.  The Tribunal's goal was to dispose of files within a year of receiving the application, and while I don't believe they've generally met that goal, it isn't nearly as bad as the old system was.

However, the Tribunal has had to develop ways of getting rid of all the chaff files no longer being filtered out by the Commission.  They receive lots of applications which, for jurisdictional reasons, they can't hear on the merits.  For example, if the plaintiff made a claim in Court on the same basis, an HRTO application is barred.  Applications against federally-regulated employers (i.e. banks) aren't subject to Ontario's Human Rights Code (there are parallel statutes and processes in the Federal sphere).  And plenty of applications lack any connection to the Code in the first place - the applicant feels that they were treated unfairly, but without a connection to a prohibited Code ground, etc.

So the Tribunal conducts a gatekeeper assessment of applications at the front end, determining if there are flaws which would make it plain and obvious that the application isn't within the Tribunal's jurisdiction and, if so, issues a Notice of Intent to Dismiss ("NOID"), telling the applicant, 'Unless you give us a reason not to, we will dismiss this application on this basis.'  That occurs prior to serving the application on the respondent.  And absolutely massive numbers of applications have been dealt with through NOIDs, without the respondent ever even finding out about the process, or being required to spend a dime on legal fees.

As well, there are mechanisms for respondents to request early dismissal of applications, sometimes without being required to provide a response, depending on the circumstances.

A relatively recent turn in the gatekeeper assessments is that, in addition to NOIDs (which are purely for jurisdictional reasons), the Tribunal may direct summary hearings - without necessarily requiring the respondent to participate - to determine whether or not it is plain and obvious that the application cannot succeed.

The Woodwork Case

As a particularly stark example of this, consider the very recent decision in Woodwork v. Halton Regional Police Services:  Ms. Woodwork was apparently involved in an altercation in a parking lot: She was standing in a parking spot to reserve it while her mother repositioned the car, and an older man tried to get her to move, allegedly by driving the car into the parking spot anyways, including hitting her with the car.  Woodwork claimed that the police didn't take her complaint seriously because she was a young woman and the alleged assailant was an old man.  The allegations themselves are clearly appropriate subject matter for an HRTO application - if they can be proven, they certainly could lead to a remedy.  But that's a big "if".

So the Tribunal directed a summary hearing be held to determine the question, because it doubted that Woodwork would actually be able to lead evidence capable of supporting a conclusion that the police treatment of her complaint was a result of her age.  The Tribunal cited Dabic v. Windsor Police Service for the following proposition:
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 by the Tribunal in Woodwork]
Proving why somebody treated you in a certain manner is often the challenge in HRTO proceedings, and unless the respondent was so foolish as to acknowledge being motivated by a prohibited ground of discrimination, it will often require some inference.  But the onus is upon the applicant to lead an evidentiary basis - the respondent is not required to provide a non-discriminatory explanation unless there's a reason to think its actions were discriminatory in the first place.

Sometimes, applicants try to support the inference through timing, and other surrounding circumstances.  So, for example, if an employee gets an extremely positive performance review, then the following week tells the employer that she is pregnant, and is fired shortly thereafter, the employee might be able to make out a case on that basis.  Other times, applicants attempt to raise systemic discrimination as evidence, arguing that there's a pattern of unfair treatment against people identified by the particular prohibited ground of discrimination.  This is usually more difficult, because it usually involves a superficial description of something that appeared to happen to somebody else, where there may be more nuanced considerations involved.  Or there are cases where the unfair treatment evidences such obvious hostility and personal enmity from a complete stranger that there must have been some prejudgment.

But you need something.  That's clear in the case law, and far too many applicants go to the Tribunal without any articulable reason to believe that their treatment flowed from a prohibited ground of discrimination.

In Woodwork, the Tribunal concluded that Ms. Woodwork would be unable to prove that she was treated unfairly because of her age, so dismissed the application.  One might argue that this - being a hearing on the Tribunal's own initiative prior to the disclosure phase of the proceeding - even takes the gatekeeper role a little too far:  Not only is evidence usually not necessary in pleadings, but evidence is usually improper content in pleadings.  If the case turns on something John did, I'm supposed to plead "John did x".  Not "I saw John do x" or "Jane said John did x" or "I think, because of y, that John did x".  At the pleading stage, I just make the allegation that John did x - evidence comes later.  Some understandable concerns might arise, therefore, from the Tribunal looking at an application and, of its own initiative, expressing scepticism as to whether or not the applicant will be able to prove his or her allegations.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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