Any person in Ontario can apply to the Ontario Human Rights Tribunal to allege that an employer, for example, has discriminated against that person based on a protected ground under the Ontario Human Rights Code, such as disability.
Often these applications are made by employees who are terminated, but who allege that the employer discriminated against the employee by terminating him or her while that employee had a disability.
Increasingly, these applications are made and prosecuted by self-represented employees.
In fact, approximately 75% of applications to the Tribunal are made by self-represented parties.
This can create risk to the employee, but also be challenging for the responding employer (and its legal counsel) and the Tribunal itself.
Self-represented parties will be held to the same legal burden as those who are represented by counsel.
In reality, however, self-represented parties are given flexibility in procedural requirements and are regularly accommodated by the Tribunal, much more so than if that person were represented by a lawyer.
However, the recent Tribunal case of Luthra v. CAPREIT Limited Partnership (2015, HRTO 1658) is a good example. The applicant brought an application under the Code alleging the employer violated her rights. She lost, because she did not properly establish her case and meet the legal burden on her to succeed in a discrimination-based complaint.
The Applicants case was dismissed for a number of reasons, including because:
- she alleged discrimination due to her record of offences, believing this meant her disciplinary record at work, when it actually means a criminal record under the Code;
- she did not properly claim discrimination in her initial application and had to request the Tribunal to amend her documentation at the last minute (at the hearing, in fact) to plead that she experienced discrimination based on a disability;
- she did not call proper evidence linking her alleged harassment and discrimination to her employers knowledge of her disability that she in fact suffered;
- she gave evidence about her discussions with her employer at the hearing regarding her alleged disability, but never mentioned anything about her alleged disability in her initial application to the Tribunal;
- she did not properly link the employers alleged misconduct towards her to an actual disability she suffered prior to being terminated by the employer; and
- generally, she testified of unfair treatment of her in the workplace at the hands of the employer, but did not properly link that alleged misconduct by the employer to any protected ground under the Code, such as a disability.
Effectively, the applicant tried to use the Code to seek redress, but without any proper grounds for actually doing so or, if she did have grounds, she did not properly set them out and prove them in her case.
While lawyers are expensive and generally there are no costs awarded in Tribunal proceedings, they are time-consuming, lengthy and require significant resources.
Self-represented parties should consider this before bringing a Code application, including ensuring that his or her case is properly and adequately set out with the necessary legal and factual grounds to succeed.
This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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