Sollitt v. Trillium Lakelands District School Board, 2013 HRTO 1128

Human Rights Tribunal of Ontario

B E T W E E N:

Donald Sollitt Applicant

-and-

Trillium Lakelands District School Board, Canadian Union of Public Employees and its Local 997 and Lynn Raback Respondents

AND BETWEEN:

Donald Sollitt Applicant

-and-

Workplace Safety and Insurance Board Respondent

DECISION

Adjudicator: Mark Hart

Date: June 26, 2013

Citation: 2013 HRTO 1128

Indexed as: Sollitt v. Trillium Lakelands District School Board

APPEARANCES

Donald Sollitt, Applicant Self-represented

Trillium Lakelands District School Board, Respondent Nadine Zacks, Counsel

Canadian Union of Public Employees and its Local 997 and Lynn Raback, Respondents Devon Paul, Counsel

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

1These are two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In relation to Application 2012-11380-I as against Trillium Lakelands District School Board (the “School Board”), the Canadian Union of Public Employees and its Local 997 (the “Union”) and Lynn Raback, the applicant alleges discrimination with respect to employment and membership in a vocational association because of disability.

3In relation to Application 2013-14074-I against the Workplace Safety and Insurance Board (“WSIB”), the applicant alleges discrimination with respect to the provision of services because of disability.

4By Case Assessment Direction (“CAD”) dated December 18, 2012, the Tribunal directed that a teleconference hearing be held to determine three issues: (1) whether Application 2012-11380-I should be dismissed as against the Union and Ms. Raback pursuant to s. 45.1 of the Code on the basis that the substance of that part of the Application already has been appropriately dealt with as a result of the decision of the Ontario Labour Relations Board (“OLRB”) dated September 18, 2012; (2) whether this Application should be dismissed as against the Union and Ms. Raback on the basis that the allegations against them have no reasonable prospect of success; and (3) whether Ms. Raback should be removed as a personal respondent.

5By Interim Decision dated December 28, 2012 (2012 HRTO 2408), Application 2012-11380-I was deferred pending the completion of an outstanding matter before the WSIB including any appeals, with the exception that the teleconference hearing would still proceed to address the foregoing issues.

6By Notice of Summary Hearing dated February 21, 2013, a teleconference hearing in relation to Application 2012-11380-I was scheduled for May 16, 2013.

7On April 2, 2013, the applicant filed Application 2013-14074-I against the WSIB.

8On May 2, 2013, the applicant filed a Request for Order seeking to amend Application 2012-11380-I to add allegations as against the Union and Ms. Raback relating to what is referred to as their “duty to inquire” (discussed in further detail below).

9By CAD dated May 6, 2013, the Tribunal directed that the teleconference hearing would also hear the parties’ submissions on whether this request to amend should be granted, and also whether, if the amendment were to be granted, the applicant has a reasonable prospect of success in relation to the “duty to inquire” allegations. In addition, in relation to Application 2013-14074-I against the WSIB, the Tribunal directed that the teleconference hearing also would address the issue of whether the applicant has a reasonable prospect of success in relation to the allegations raised in this Application and/or whether this Application should be dismissed pursuant to s. 45.1 of the Code.

10The teleconference hearing proceeded on May 16, 2013 and I heard and have considered submissions from all parties. I will proceed to address the issues in the order in which they have been set out above.

SHOULD APPLICATION 2012-11380-I BE DISMISSED AS AGAINST THE UNION AND MS. RABACK PURSUANT TO S. 45.1 OF THE CODE?

11The applicant filed an application with the OLRB alleging that the Union had breached its duty of fair representation towards him in contravention of section 74 of the Ontario Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “LRA”). The parties agreed that this application would be heard in a consultation format, and they filed significant material in advance of the hearing and were afforded the opportunity to make oral submissions at the hearing. In its decision dated September 18, 2012, the OLRB stated that it had “a more than ample evidentiary record”.

12The allegations raised by the applicant in his application to the OLRB were summarized at paras. 13 and 14 of the decision as follows:

. . . the applicant was diligent in filing extensive material with the Board which purported to describe all of the events leading up to his ultimately being placed on an unpaid leave of absence. The pleadings, statements, and documents filed by the parties now fill more than a banker’s box. In my opinion however, no useful purpose [is served] by attempting to record, even in summary form, all of the details of Mr. Sollitt’s various allegations and interactions with union representatives over a period of years.

Suffice it to say, Mr. Sollitt remains unsatisfied with the quality of his representation. His concerns are now said to have begun with the alleged failure of the union to support him during his stress leave in 2010 when it is said that he should have been encouraged to see a psychologist to assist him with his WSIB claim. He also stated that the union did not look carefully or sufficiently into various matters including but not limited to his claims for light duty, alleged verbal assaults and threats, and the conduct of meetings. Mr. Sollitt submitted that the union should have provided him with advice concerning health and safety matters and also concerning legal documents concerning medical issues. It was his view that he should have been provided with a union lawyer. With respect to his accommodation grievance, Mr. Sollitt disagrees with the union’s ultimate conclusion that it lacked merit. In his submission, CUPE has a legal obligation to advance his grievance to arbitration. Mr. Sollitt continues to assert that [the School Board] has the obligation to accommodate him in a carpenter position and that its offer of an accommodated custodial position is unacceptable.

13Having reviewed the Application filed with this Tribunal by the applicant, the foregoing is an accurate summary of the applicant’s allegations as raised in Application 2012-11380-I. This is hardly surprising, as the applicant filed precisely the same summary of events with the OLRB in support of his application under s. 74 of the LRA as he did with this Tribunal in support of his human rights application. Moreover, when he filed his Reply to the Responses filed by the respondents in the human rights proceeding, substantially all of the content of his Reply appears to have been derived from the declarations that he submitted to the OLRB in advance of the consultation hearing.

14The OLRB dismissed the applicant’s application under s. 74 of the LRA on the basis that it was “utterly devoid of merit”. In addressing the allegations raised by the applicant, the OLRB states (at paras. 15 to 20):

Counsel for the union addressed the applicant’s position effectively but with appropriate sensitivity. The application was a ‘shot gun’ approach. Some of the allegations, for example, the alleged failure of the union to advise the applicant of who would be in attendance at a meeting, could not be said to violate anything. Mr. Sollitt’s expectations of his union were well out of line with the union’s duty of fair representation. The local union had devoted extensive time, resources and energy to responding to Mr. Sollitt’s concerns. Union representatives had provided appropriate advice some of which Mr. Sollitt now recognizes to have been correct; for example, about the right of the employer to pursue independent medical advice. CUPE was assisting the applicant with WSIB issues.

On the critical issue, that is, the merits of Mr. Sollitt’s grievance, the matter had been investigated thoroughly and a legal opinion obtained. The union had concluded that there was insufficient evidence available, including medical evidence, to successfully challenge the [School Board] position that it was not possible to place Mr. Sollitt in the carpenter position which he continues to seek. That same conclusion has been reached by the WSIB. While the grievance was now in abeyance, it could be advanced should circumstances change.

In my opinion the evidentiary record is more than sufficient to support the legal submissions made on behalf of CUPE.

The record is replete with extensive communications between the union and the applicant. Mr. Sollitt’s dissatisfaction with those communications and certain outcomes does nothing to establish a breach of the duty of fair representation. The involvement of the local union, including Local 997 President Lynn Raback not to mention other CUPE representatives, appears in many respects to have been exemplary. I would go further. In my opinion the record supports Ms. Raback’s assertion in one of her several filed declarations that: “All attempts to guide and provide assistance to [Mr. Sollitt] have been met with total disregard and resistance to not only myself, but also our CUPE National Representatives and our CUPE National WSIB Representative.” The applicant’s expectations of his union were extreme; for example, his submission that the refusal of the union to provide him with a union lawyer constitutes a violation of section 74 of the Act lacks any semblance of reality.

With respect to the accommodation grievance, the union filed a grievance on behalf of Mr. Sollitt in a timely fashion and ultimately secured a favourable disposition from the employer. It appears to me to be beyond doubt that the union’s advice to the applicant, that he accept the [School Board]’s offer of an accommodated custodial position, was rational advice preceded as it was by extensive prior local union involvement and the receipt of a legal opinion. The applicant does not question that the union received such advice; he just differs with the conclusion reached by the union.

Finally, it might be noted that both the union and the employer appear to be continuing to deal with the applicant with considerable restraint. The union remains willing, as it should, to continue to represent the applicant concerning this issue should circumstances change. As of the date of the hearing at least [the School Board] continues to treat Mr. Sollitt as an employee on an unpaid leave of absence. The patience displayed by this employer and this union concerning this applicant is worthy of praise not criticism in my opinion.

15Section 45.1 of the Code states:

The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

16Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.

17This Tribunal already has determined that a proceeding before the OLRB constitutes a “proceeding” within the meaning of s. 45.1 of the Code: see Dunn v. Sault Ste. Marie (City), 2008 HRTO 27; Healey v. McMaster University, 2010 HRTO 1874; Isai v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647, 2010 HRTO 756; Woodcock v. Gerdau Ameristeel Inc., 2010 HRTO 790.

18As a result, the only remaining issue is whether the substance of the allegations as against the Union and Ms. Raback as set out in Application 2012-11380-I was appropriately dealt with by the OLRB.

19In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) at para. 34, the Court summarized the principles to be applied when considering whether another proceeding has appropriately dealt with the substance of a human rights application as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on;

• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings;

• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision; and

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

20In assessing whether the substance of an Application already has been “appropriately dealt with” in another proceeding, the Supreme Court of Canada in Figliola identified the following three factors (at para. 37):

. . . whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.

21This Tribunal addressed the application of the Figliola decision to the interpretation and application of s. 45.1 of the Code in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, which concluded (at para. 4):

. . . the Court’s reasoning in Figliola applies equally to the interpretation of s. 45.1 of the Ontario Code, and to whether an application should be dismissed when the issues have previously been addressed in another proceeding in which the parties have had the opportunity to know the case to be met and meet it. Figliola instructs this Tribunal not to consider the procedural or substantive correctness of the other proceeding or decision when deciding whether the application or part of the application can proceed. If the reasons in the other decision dispose of the human rights issues before the Tribunal, the application or part of the application must be dismissed on the basis that it was appropriately dealt with in the other proceeding.

22In Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, this Tribunal stated (at paras. 25-26):

The Supreme Court of Canada’s decision in Figliola provides guidance as to the interpretation of “appropriately dealt with” as it appears in s. 45.1. The Court makes clear that the Tribunal’s role is not to sit in appeal of other decision-makers in their determination of human rights issues. Nor is it appropriate for the Tribunal to use s. 45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through the appeal or judicial review routes available in the other decision-making process.

Thus, the Tribunal’s principal concern in applying s. 45.1 is not whether parallel litigation has correctly determined the human rights issues, but whether the applicant has already had an opportunity to have the human rights claim considered by an adjudicator who had jurisdiction to interpret and apply the Code . . .

23With regard to the issue of concurrent jurisdiction, there is no doubt that the OLRB has concurrent jurisdiction with this Tribunal to decide human rights issues that come before it. Moreover, section 74 of the LRA expressly frames a union’s duty of fair representation using the language of “discrimination” that is central to the Code. Section 74 of the LRA states, in its relevant part, that a union “shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit” (emphasis added). Indeed, in Woodcock v. Gerdau Ameristeel Inc., above, this Tribunal observed (at para. 1.5):

the prohibition on discrimination in s. 74 of the Labour Relations Act incorporates discrimination on Code grounds. Discrimination under s. 74 of the Labour Relations Act, in other words, includes discrimination contrary to the Code.

24The next issue is whether the previously decided legal issue was essentially the same as what is being complained of to this Tribunal. As already noted above, the factual issues as raised by the applicant in his s. 74 application to the OLRB are precisely the same as the factual issues raised in his human rights application. In my view, the legal issue addressed in these two applications also is essentially the same. In his human rights application, the applicant alleges that the Union and Ms. Raback, as a union representative, engaged in discrimination against him because of disability. In his s. 74 application to the OLRB, the applicant alleged that the union acted towards him in a manner that was arbitrary, discriminatory or in bad faith, which is inclusive of the allegation that the Union acted towards him in a discriminatory manner contrary to the Code. The determination by the OLRB that the applicant’s s. 74 application was “utterly devoid of merit”, that the involvement of the Union and Ms. Raback with the applicant “appears in many respects to have been exemplary”, that the Union provided the applicant with rational advice and had conducted itself towards him with “considerable restraint” essentially foreclose the possibility of a finding that the Union and Ms. Raback discriminated against the applicant because of disability as alleged in the human rights application.

25In response, the applicant submits that these are two different tribunals acting under different legislation, and so he should not be precluded from proceeding with his human rights application against the Union and Ms. Raback. While it is true that the OLRB acts under the provisions of the LRA and this Tribunal acts under the provisions of the Code, that is not a sufficient basis to rule out the application of s. 45.1 of the Code. The question under s. 45.1 of the Code is whether the “substance” of an application already has been appropriately dealt with elsewhere. This does not require that the tribunal involved in the other proceeding make a determination pursuant to precisely the same provision of the Code as would this Tribunal. Rather, it requires merely that the issue be substantially or essentially the same. For the reasons already stated, that requirement is satisfied here.

26In addition, the applicant relies upon the “duty to inquire” allegations as raised in his request to amend his Application to support the proposition that this is an issue raised in his human rights application that was not dealt with in the OLRB proceeding. The applicant was unclear in his submissions at the teleconference hearing as to the legal basis for stating that the Code imposes a “duty to inquire” upon a union, except to say that this came from an article he had read regarding case law developed by the British Columbia Human Rights Tribunal (“BCHRT”). The applicant was not able to assist this Tribunal or the respondents by being able to point to any specific case, based upon his misunderstanding that case law was not required for the purpose of the summary hearing. In this regard, I have taken into account the fact that the applicant is self-represented and does not have legal training.

27In any event, it is my view that the applicant has not correctly understood the “duty to inquire” as this principle has been developed by the BCHRT, as recently discussed in Rezaei v. University of Northern British Columbia and another (No. 2), 2011 BCHRT 118. The “duty to inquire” is an extension of the general principle that, when seeking accommodation for a disability, an employee must bring forward to the employer information regarding the needs arising from the disability. In some circumstances, the employee does not do this, but it will be found that the employer “ought reasonably to have known” that the employee had a disability and so was under a “duty to inquire” whether the employee had a disability before taking adverse action against the employee. This “duty to inquire” clearly applies to an employer. I am aware that in some cases, like Rezaei, the BCHRT has entertained the question of whether this duty also applies to a union in the context of assessing whether an application has a “reasonable prospect of success”. I am not aware of any decision by the BCHRT that has found liability against a union on the basis that it breached a “duty to inquire” in this context and the parties were unable to identify any case law that addressed this legal issue.

28In any event, the circumstances in which the “duty to inquire” arises are not applicable in the context of the applicant’s allegations in the instant case. He is not alleging that he had some unknown disability that he did not identify to the employer or the union, but that the union ought reasonably have been aware of such a disability due to his abnormal or unusual conduct. Based upon the material before me, it appears that the applicant was aware of his physical and mental disabilities and limitations, and identified these to the employer and the union.

29Rather, what the applicant is really alleging when he raises the “duty to inquire” is not the legal principle as it has been developed by the BCHRT, but an allegation that the union failed to take sufficient steps to look into or investigate the issues that he was raising. This was an issue that the applicant raised in the materials filed in support of his s. 74 application to the OLRB, as it was in the identical materials filed in support of his human rights application. That the OLRB understood this to be an aspect of the applicant’s s. 74 application is clear from the summary of his allegations as set out in para. 14 of the decision, which are stated to include “that the union did not look carefully or sufficiently into various matters including but not limited to his claims for light duty, alleged verbal assaults and threats, and the conduct of meetings”. Accordingly, in my view, this issue was already raised by the applicant and addressed by the OLRB in its decision. Putting the title “duty to inquire” on these allegations does not change the fact that the allegations in substance are the same.

30The third issue identified by the Supreme Court of Canada in Figliola is whether there was an opportunity for the applicant to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. In another part of the Court’s decision (at para. 49), it is stated that “as long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional ‘judicial’ procedural trappings should not be the Tribunal’s concern”.

31In this case, the applicant participated in a consultation hearing process before the OLRB, to which he agreed. He and the other parties were given the opportunity to file materials in advance of the consultation hearing, and he availed himself of that opportunity. He also was afforded the opportunity in advance of the consultation hearing to receive and review the materials filed by the Union and the School Board. At the consultation hearing, he was afforded the opportunity to make oral submissions before an OLRB Vice-Chair, and to hear and respond to the oral submissions made by the other parties. In my view, the applicant had a more than fair opportunity to “air his grievances” before an authorized decision-maker and to know and respond to the opposing case as put forward by the Union.

32Accordingly, for all of the foregoing reasons, I find that the substance of the applicant’s allegations as against the Union and Ms. Raback already has been appropriately dealt with in the proceeding before the OLRB and in the OLRB’s decision dated September 18, 2012. As a result, Application 2012-11380-I is dismissed as against the Union and Ms. Raback pursuant to s. 45.1 of the Code.

REMAINING ISSUES AS THEY PERTAIN TO APPLICATION 2012-11380-I

33Given the dismissal of Application 2012-11380-I as against the Union and Ms. Raback, it is not necessary for me to address the issue of whether the applicant’s allegations against the Union and Ms. Raback have a reasonable prospect of success. Nonetheless, having reviewed the allegations against the Union and Ms. Raback as raised by the applicant, it is my view that he does not provide a basis to support an allegation that he was treated differently or otherwise discriminated against by the Union or Ms. Raback because of disability, as opposed to raising allegations regarding their failure to adequately represent his interests or support his views or act in the ways he wanted.

34This Tribunal has held that, in the absence of evidence that a union’s action or inaction was based on a discriminatory factor, the following things do not in and of themselves support a violation of the Code: a union’s failure to file or pursue a grievance; a union’s failure to advocate on the applicant’s behalf; its failure to assist an applicant in addressing discrimination or to contest the employer’s actions; or its participation or involvement in an unsuccessful accommodation process. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the union under s. 74 of the Labour Relations Act. But it is not this Tribunal’s jurisdiction to determine whether a union fairly or adequately represented a member in the absence of evidence that its conduct was based on a discriminatory factor. That is the role and jurisdiction of the Ontario Labour Relations Board: see Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 at para. 47.

35As a result, I further find that Application 2012-11380-I should be dismissed as against the Union and Ms. Raback as having no reasonable prospect of success.

36With regard to the request for Ms. Raback to be removed as a personal respondent, it is not necessary for me to deal with this request as the Application has been dismissed as against her and so she is no longer a party to this proceeding.

37Finally, it also is not necessary for me to deal with the applicant’s request to amend his Application to raise the “duty to inquire” as part of his allegations against the Union and Ms. Raback. Even if I were to grant the applicant’s request to amend, I nonetheless would find, as already stated above, both that the allegations advanced by the applicant in support of the “duty to inquire” already were appropriately dealt with in the OLRB proceeding, and further have no reasonable prospect of success.

DOES APPLICATION 2013-14074-I HAVE A REASONABLE PROSPECT OF SUCCESS?

38In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, this Tribunal stated (at para. 5):

This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success. In addition, under s. 45.1 of the Code, the Tribunal cannot reevaluate the substantive or procedural correctness of a decision under another statutory scheme.

See also Rock v. Workplace Safety and Insurance Board, 2012 HRTO 2052 and Tadese v. Workplace Safety and Insurance Board, 2012 HRTO 2383.

39In the instant case, the applicant’s WSIB loss of earning benefits were not allowed past May 18, 2011 on the basis that he had been offered suitable work by the School Board as a custodian. I appreciate that the applicant vigourously disagrees with this decision, and the WSIB claims adjudicator’s decision is currently under appeal by the applicant. Due to this appeal, the applicant’s Application as against the School Board has been deferred.

40However, as stated in Seberras, the fact that an applicant disagrees with a decision made by the WSIB is not a proper or sufficient basis upon which to file an Application alleging that an applicant’s rights under the Code have been violated by the WSIB. The applicant stated in his submissions at the teleconference hearing that he is hoping to ground his Application against the WSIB on the basis that the “duty to inquire” applies to the WSIB. The applicant did not provide, and I could not find, any case law to support such a proposition. Further, as set out above, the “duty to inquire” applies in situations where an employee’s disability is not identified to the employer by the employee, but where the employer (and perhaps the union) ought reasonably to be aware of the potential for there to be some underlying disability to account for abnormal or unusual behaviour. It is hard for me to fathom how such a principle could apply to a statutory agency like the WSIB, whose role is to assess and determine whether an employee has experienced a work-related accident or injury. In order for the WSIB to become involved, a work-related accident or injury must first be reported to the WSIB either by the employee, her or his doctor, or the employer. In the absence of any such reporting, the WSIB simply has no statutory basis upon which to get involved.

41As expressed above, it appears that the applicant has misapprehended the “duty to inquire” principle, and instead may be arguing that the WSIB has a duty to investigate. There is no doubt that the WSIB has the statutory authority to conduct investigations. But any investigations conducted by the WSIB are in service ultimately of making a decision that the WSIB is statutorily authorized to make. Whether or not the WSIB has conducted a sufficient investigation or any investigation at all may be an issue that could be raised by a worker on an appeal under the Workplace Safety and Insurance Act, but does not provide a basis for an allegation of a breach of the worker’s rights under the Code absent some basis to show that the failure to conduct any or any sufficient investigation was because of a ground of discrimination protected under the Code. In the instant case, the applicant has provided no basis to connect his criticisms about how he was dealt with under the WSIB process to a protected ground under the Code.

42As a result, Application 2013-14074-I is dismissed in its entirety as having no reasonable prospect of success. In light of this determination, it is not necessary for me to address the issue of whether Application 2013-14074-I should be dismissed pursuant to s. 45.1 of the Code.

ORDER

43For all of the foregoing reasons, I hereby make the following order:

a. Application 2012-11380-I is dismissed as against the Union and Ms. Raback pursuant to s. 45.1 of the Code and as having no reasonable prospect of success; and

b. Application 2013-14074-I is dismissed in its entirety as having no reasonable prospect of success.