Gholipour v. Saint Elizabeth Health Care, 2016 HRTO 830

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ali Reza Gholipour

Applicant

-and-

Saint Elizabeth Health Care, Denise Hayes, Susan Walsh, Vera Zimborsky, Margaret Taylor, Dave Maynard, Joco Del Sole, and Mary Compton

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 20, 2016

Citation: 2016 HRTO 830

Indexed as: Gholipour v. Saint Elizabeth Health Care

APPEARANCES

Ali Reza Gholipour, Applicant Megan Evans Maxwell, Counsel

Saint Elizabeth Health Care, Denise Hayes, Susan Walsh, Vera Zimborsky, Margaret Taylor, Dave Maynard, Joco Del Sole, and Mary Compton, Respondents Andre Nowakowski, Counsel

Ontario Public Service Employees Union, Affected Party Adrienne Liang, Counsel

1This Application, filed on January 16, 2013 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of race, place of origin, ethnic origin and reprisal.

Background

2In his Application, the applicant identifies himself as Iranian. The applicant states that he began employment within the organizational respondent in September 1997 as a crisis intervention worker. The applicant states that from 2010 to his dismissal for cause on July 30, 2012 the respondents excluded racialized employees from promotions, development opportunities and training. The applicant states that he was subject to derogatory comments about Iranians from a co-worker and his supervisor, the individual respondent Dave Maynard.

3The applicant states that he complained about the discriminatory conduct and unfair behaviour, but the respondents did not address his concerns, despite an undertaking to investigate. The applicant states that he worked without an office, title or position after his position was purportedly eliminated, that he was subjected to unusual scrutiny and that he was subject to humiliation in the workplace after he raised concerns. The applicant states that he was dismissed for cause based on falsified records.

4The Tribunal deferred the Application pending the conclusion of a related unfair labour practices proceeding before the Ontario Labor Relations Board ("OLRB”). The Tribunal granted the applicant's request to reactivate the Application following the completion of the OLRB matter in a Case Assessment Direction dated June 25, 2015. In the same Case Assessment Direction, the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed in whole or in part because the substance of this Application has been dealt with in another proceeding, pursuant to section 45.1 of the Code; because of delay; or because the Application has no reasonable prospect of success.

5The Tribunal held the preliminary hearing on December 16, 2015 by teleconference.

Section 45.1

6Section 45.1 of the Code states as follows

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.

The OLRB Decision

7The proceeding before the OLRB was an unfair labour practices application filed by the applicant's trade union, the Ontario Public Service Employees Union. The issue before the OLRB was whether the termination of the applicant's employment was motivated by anti-union animus. The applicant had been a member of the union's bargaining committee and the dismissal occurred at the commencement of bargaining for a first collective agreement.

8Following a hearing, the OLRB found the decision to dismiss the applicant was not motivated by anti-union animus and dismissed the unfair labour practice application. In coming to this conclusion, the OLRB made the following findings of fact:

• Mr. Maynard discovered a record in the organizational respondent's data management system of the applicant performing work he did not actually do. Mr. Maynard reported this to Mr. Cyr who had recently joined the organizational respondent as the manager of the applicant's unit and was Mr. Maynard superior;
• As a result, the organizational respondent gathered information about the reporting practices of the applicant and other staff;
• Mr. Cyr directed Mr. Maynard to conduct the investigation and Mr. Cyr was responsible for the decisions taken as a result of the investigation;
• Mr. Maynard discovered other issues with the applicant’s data recording practices;
• Mr. Maynard did not find false reports by other staff and the evidence did not support a finding that he found such reports in respect of other employees, but did not report them;
• Other staff did not make consistent and pervasive recording errors, as the applicant had;
• The applicant made the data entries in question, i.e., they were not fabricated;
• The organizational respondent gave the applicant an opportunity to respond to the allegations;
• The organization respondent took a measured approach to the issue, giving the applicant only a written warning and a performance improvement plan to complete;
• The performance improvement plan was rationally connected to the data recording issues that were discovered;
• The applicant was given the opportunity to provide input into the performance improvement plan;
• The applicant steadfastly refused to comply with a legitimate direction of his employer, i.e., the performance improvement plan;
• The organizational respondent did not move quickly to dismiss the applicant. The organizational respondent’s actions were consistent with the evidence that it did not wish to dismiss the applicant;
• The organizational respondent gave the applicant several opportunities to comply with the performance improvement plan and dismissed him only when it was clear that he would not.

Submissions

9The respondents submitted that allowing this Application to proceed would result in the re-litigation of facts and issues, which the case law clearly states is to be avoided. The respondents submitted that the matter before the OLRB was a proceeding that appropriately dealt with the substance of the Application. The respondents submitted that the union's application to the OLRB concerned the organizational respondent's investigation into the applicant's data entry practices and the dismissal of the applicant's employment. The respondents noted that the application to the OLRB requested the same remedies as the applicant requests in this application: rescission of discipline, reinstatement to employment and financial compensation.

10The respondents submitted that the OLRB concluded that the organizational respondent's reasons for investigating the applicant's conduct and for imposing discipline were legitimate. The respondents submitted that the OLRB found that the applicant had opportunities to respond to the organizational respondent's concerns and to provide alternate solutions, but was dismissed because he refused to comply with the organizational respondent's legitimate expectations. The respondents submitted that for the applicant to succeed in this Application the Tribunal would have to make findings inconsistent with those of the OLRB.

11The respondents submitted that the OLRB's decision did not have to specifically address the alleged Code violations for section 45.1 to apply. Rather they noted that the Tribunal's jurisprudence is that if a ruling in another proceeding makes it impossible for an application to succeed, then the application must be dismissed.

12The applicant conceded that the OLRB hearing was a proceeding for the purposes of section 45.1, but argued that it did not appropriately deal with the substance of the Application. The applicant submitted that following the Supreme Court of Canada's decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Tribunal has ruled that fairness is the most important consideration when applying section 45.1. The applicant also submitted that following the Divisional Court's decision in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (Div.Ct.) an application may only be dismissed under section 45.1 if the human rights allegations were considered in the proceeding.

13The applicant submitted that he will testify that he did not agree to the performance improvement plan because the plan required him to have further exposure to Mr. Maynard, whom he believed had violated his human rights. The applicant submitted that he did not give this evidence at the OLRB hearing because he was advised that the OLRB would not address human rights issues. The applicant submitted that allowing the Application to proceed with respect to the termination of his employment would not require re-litigation. Rather, the Tribunal would only deal with the applicant's allegation that the performance improvement plan was unfair because it required the applicant to work with Mr. Maynard and that the organizational respondent dismissed him while the applicant had an outstanding human rights complaint. The applicant submitted that the OLRB does not have concurrent jurisdiction to address human rights issues and that the legal issues are different in the applications before the OLRB and this Tribunal. The applicant submitted that in the circumstances of this case it would not be fair to dismiss the Application pursuant to section 45.1.

14In brief reply submissions, the respondents submitted that the OLRB had in fact addressed the issue of the applicant's dismissal and found that he was dismissed for insubordination. The respondents submitted that the Tribunal should not "unbundle" decisions made in another proceeding and submitted that the Tribunal would have to reverse findings made by the OLRB for the applicant to succeed.

Analysis and decision

15There is no dispute that the hearing before the OLRB was a “proceeding” for the purposes of section 45.1. Anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers. See: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; and Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458. Accordingly, the issue is whether the OLRB “appropriately dealt with the substance of the Application.”

16The Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code, RSBC 1996, c 210 as amended (the “B.C. Code”), which is nearly identical to section 45.1 of the Code. In that decision, the Court described the analysis a Tribunal should undertake when assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, as follows, at paragraph 37:

“…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 mirrored the one the Tribunal prefers or uses itself…”.

17The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paragraph 25. In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal stated as follows:

This Tribunal has emphasized throughout its jurisprudence on s.45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing re-litigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c.E. 2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s.45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed. (Emphasis added)

18In Claybourn v. Toronto Police Services Board (“Claybourn”), 2013 HRTO 1298, the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and found that in deciding whether another proceeding appropriately dealt with the substance of a human rights claim pursuant to section 45.1, the Tribunal must consider not only whether the issue in before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

19In my view, the Tribunal’s decisions coming after Penner, such as K.M. v. Kodama, 2014 HRTO 526 aff’d at Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (Div.Ct.) do not indicate that the Tribunal’s pre-Penner jurisprudence is no longer valid. In this regard, I adopt the analysis in Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 270 at paragraphs 25-27:

One of the primary issues to be determined here is whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal. I appreciate that this Tribunal in the Volnyansky decision frames this factor by mirroring the specific language used by the Supreme Court in Figliola. However, in my view, this factor is better expressed in the context of the Ontario Code by more closely tracking the language of s. 45.1. In my view, this factor is better expressed in the context of the Ontario Code by asking whether the “substance” of the Court proceedings was essentially the same as the “substance” of the Application before this Tribunal, rather than narrowing the analysis to solely considering whether the “legal issue” in these two proceedings was essentially the same.

I say this in light of this Tribunal’s case law holding that, where the factual underpinnings of the allegations in the human rights Application are the same as the allegations raised in the other proceeding and where these factual underpinnings form a necessary component of establishing the alleged violations of the Code, this Tribunal will regard the “substance” of the human rights Application to be essentially the same as the “substance” of the other proceeding: see Qiu v. Neilson, 2009 HRTO 2187 at paras. 35 to 39; Paterno v. Salvation Army, 2011 HRTO 2298; Reid v. Advantage Personnel Ltd., 2012 HRTO 1742; V.N. v. Bartlett, 2012 HRTO 1947; Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106; Law v. Noonan, 2013 HRTO 437; Griffith v. Hurst, 2013 HRTO 367; Clarke v. Kingdom Hotel Toronto Ltd., 2013 HRTO 2002; Hillier v. Benteler Automotive Canada Corporation, 2013 HRTO 655; Benstead v. Niagara Regional Housing, 2012 HRTO 1557; Acosta v. Far Horizons Inc., 2012 HRTO 1478; Caron v. Lakeside Plastics Limited, 2014 HRTO 958; Schildt v. POINTTS Advisory Limited, 2014 HRTO 893.

I appreciate that in K.M. v. Kodama, 2014 HRTO 526 aff’d at Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015, 2015 ONSC 3085 (Div.Ct.) without reference to this point, it is stated this case law has been overtaken by the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and this Tribunal’s decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298. In the Kodama decision, the adjudicator expressed her view that it is now clear that the question under s. 45.1 of the Code is not so much whether there were findings in another proceeding that, if applied by the Tribunal, would make it impossible for the Application to succeed, but whether such findings ought to be applied so as to bar the human rights Application, based on the considerations outlined in Penner. In my view, this statement from the Kodama decision needs to be read in the context of this Tribunal’s then-existing case law under s. 45.1, which stated that if the factual underpinnings were the same in the two proceedings and if the factual findings in the other proceeding preclude a finding of discrimination, then the human rights application must be dismissed. I read the Kodama decision as stating merely that, even if the factual underpinnings were the same in the two proceedings and even if the factual findings in the other proceeding (if adopted by this Tribunal) would preclude a finding of discrimination, this Tribunal still needs to consider the over-riding factor of fairness as articulated in Penner, Claybourn, Kodama and Volnyansky.

20The OLRB proceeding dealt with the organizational respondent's investigation of the applicant's data recording practices and the decision to dismiss the applicant. Accordingly, the factual underpinnings of the OLRB proceeding are the same as the applicant's allegations in this Application that he was dismissed based on fabricated evidence. In my view, the OLRB's findings make it impossible for the Application before this Tribunal to succeed notwithstanding that the applicant’s human rights concerns were not placed before it. The OLRB found that the organizational respondent investigated the applicant's conduct for valid reasons and did not single the applicant out. The OLRB found that the organizational respondent took a measured approach to discipline and did not want to dismiss the applicant. The OLRB found the organizational respondent gave the applicant an opportunity to make suggestions about the performance improvement plan, but the applicant steadfastly refused to comply with it. The OLRB found that the organizational respondent dismissed the applicant for insubordination only after he had been given several opportunities to comply with its reasonable direction. In my view, it would be impossible for this Application to succeed with respect to the issue of the applicant’s dismissal in light of these findings. Consequently I find that the OLRB did appropriately deal with the substance of the applicant's allegations regarding the termination of his employment.

21The applicant's assertion that he did not raise his human rights concerns regarding the discipline process during the OLRB proceeding is problematic. First, I have some difficulty with this assertion. Evidence that the applicant provided a valid reason, e.g., human rights concerns, for refusing to comply with the performance improvement plan would have been highly relevant to the OLRB's analysis, regardless of whether the OLRB has concurrent jurisdiction to address human rights issues (which it does pursuant to Tranchemontagne). Second, and more importantly, the applicant is clearly attempting to split his case by purporting to divide the case regarding his dismissal into pieces in order to litigate the same matter in different forums. This Tribunal has stated on several occasions that it will not permit an applicant to re-litigate a matter in these circumstances, either pursuant to section 45.1 and/or because it amounts to an abuse of process. See Cunningham v. CUPE 4400, 2011 HRTO 658, O.L. v. Sun Media Corporation, 2015 HRTO 554, Bhol v. Coca-Cola Refreshments Canada Co., 2014 HRTO 96, Edwards v. Carillion Services Inc., 2015 HRTO 99, Paterno, above, Asiamah v. Olymel S.E.C./L.P, 2009 HRTO 1750, Henderson v. Mutech Fire Protection Co. Ltd., 2010 HRTO 2153, Manhas v. A.O. Smith Enterprises Ltd., 2010 HRTO 659 and Levkivska, above.

22The OLRB conducted a multi-day hearing regarding the termination of the applicant's employment. The applicant had a considerable stake in the OLRB proceeding, as the OLRB had the authority to reinstate the applicant and to order financial compensation. I find that in these circumstances it would not be in the reasonable expectation of the parties that the applicant would be permitted to re-litigate the issue of his dismissal, particularly where to do so would be to permit the applicant to split his case, an abuse of process.

Delay

23The applicant submits that he experienced incidents of discrimination, including systemic discrimination, harassment and reprisal in the two-year period leading up to the termination of his employment. The applicant submitted that these incidents amount to a series of incidents for the purposes of section 34(1)(b). The applicant submitted that several of the incidents of harassment, discrimination and reprisal occurred within one year of filing date of the Application. The applicant submitted that he was subjected to discrimination because of his race, place of origin and ethnic origin between 2010 and his dismissal in 2012, most notably because of systemic practices favouring non-racialized employees for advancement. The applicant submitted that the workplace became a poisoned environment because of discrimination and harassment, including comments related to his race, place of origin, and ethnic origin. The applicant stated that he complained to the organizational respondent regarding the discrimination and harassment he experienced and that the organizational respondent failed to address his complaint adequately. The applicant states that his allegations share a common theme of differential treatment and marginalization because he is racialized and because he is from Iran. Moreover, the incidents took place over a two-year period and occurred in close succession. Accordingly, the applicant submitted that there is no temporal gap of sufficient length to interrupt the series under the Tribunal's jurisprudence.

24The respondents submitted that many of the applicant’s allegations have no apparent link to the Code and therefore cannot be considered to be "incidents" for the purposes of section 34(1)(b). The respondents submitted that the only incidents that are clearly connected to the Code are alleged to have occurred in December 2011, more than one year before the Application was filed. The respondents submitted that the applicant did not provide an explanation for the delay in filing the Application.

Analysis and decision

Delay

25Sections 34(1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

26The applicant filed this Application on January 16, 2013. As described above, several of the incidents set out in the Application allegedly occurred more than one year before this date. The issue before me is whether these incidents form a series with the incidents alleged to have occurred within one year of the filing date and, if not, whether the delay was incurred in good faith and no substantial prejudice will result as a result of the delay.

27The Tribunal has considered the issue of what amounts to a series of incidents for the purposes of section 34(1)(b) of the Code on several occasions. In doing so, the Tribunal developed principles for evaluating whether incidents alleged to have occurred more than one year before an application is filed amount to a series of incidents. The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change 2010 HRTO 1621. Similarly, the Tribunal has found that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos v. Mississauga (City) 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board 2009 HRTO 1225 and Savage v. Toronto Transit Commission 2010 HRTO 1360. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

28The Application contains the following allegations:

• A few months into 2010, a new position was given to a Caucasian employee without following proper posting procedures;
• Later in 2010, another Caucasian employee was appointed into a position without a competition;
• In 2010, the applicant questioned his supervisor about the decision to promote a white employee over a better qualified black employee and the supervisor replied that the black employee could take her "lazy black ass" elsewhere and that the manager would not hire a "lazy black ass". When challenged about his comments, the supervisor stated that “it was not likely that a black person could claim discrimination when there were so many other ways to counter "this kind of shit"."
• Two recently hired white employees were given training opportunities. The applicant's concerns about the lack of transparency in this decision were brushed aside. In his submissions, the applicant stated that this occurred in 2011;
• In June 2011 a co-worker made a negative comment about the applicant's accent. The applicant filed a complaint regarding the racist comment, which was not addressed properly;
• In June 2011, the applicant's supervisor made a negative comment about Iranians. The applicant complained, but received no response;
• On October 13, 2011, the applicant's supervisor made another derogatory comment about Iranians while discussing the elimination of the applicant's position;
• In or about the summer or fall of 2011, the applicant complained to the Director of Mental Health Services about, amongst other things, discrimination in disciplining and promoting staff. The Director undertook to speak to the applicant supervisors. Shortly thereafter, the applicant's relationship with his supervisors changed;
• In January 2012, the applicant filed a complaint about discrimination and other workplace issues. The applicant was promised an investigation, but no action was taken;
• The applicant complained to his supervisor that, among other things, the supervisor had sided with a particular racial group, and he would file a complaint. The supervisor responded in a threatening way. The applicant states in his submission that this occurred in February 2012;
• In the spring of 2012, the applicant's office was taken away and given to other employees;
• In the six months preceding his dismissal the applicant's supervisor subjected the applicant to an unusual level of scrutiny and delayed authorization for expenses.

29The applicant's allegations concern preferential treatment for non-racialized employees, negative comments related to the applicant's race and place of origin, failure to address complaints about preferential treatment and racism and reprisal for having made complaints about this behaviour. All the allegations are directed toward the organizational respondent's management, and most are directed towards the applicant's supervisor and manager. In my view, the allegations are of a similar nature and character and there is a logical connection between them. Several of the incidents allegedly occurred within one year of the filing date of the Application and there are no gaps of a year or more between them. In the circumstances, I find that the applicant's allegations amount to a series of incidents under section 34(1)(b) and that the Application is not untimely.

No reasonable prospect of success

30Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

31In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

32After hearing the submissions of the parties I am not persuaded that the remaining allegations should be dismissed as having no reasonable prospect of success. This does not mean that the Application has merit, but that hearing is required to assess the applicant's allegations.

33Pursuant to Rule 19A.6, where the Tribunal decides not to dismiss the Application after a summary hearing it need not provide reasons, however in the circumstances of this case the following comments are appropriate. In the narrative to his Application, the applicant appears to have recorded all the workplace issues he encountered in the two and a half years preceding the termination of his employment. I agree with the respondents that many of the allegations are not, on their face, linked to the Code. However, the allegations described in paragraph 28 above, if assumed to be true, indicate an environment of pervasive and arguably systemic discrimination. In this context, I cannot find that the applicant has no reasonable prospect of success of showing that his other allegations (i.e., those which were not on their face connected to the Code) are also the result of workplace discrimination.

Order

34The Tribunal orders as follows:

1. The allegations regarding the investigation of the applicant's data recording practices and the termination of his employment are dismissed;
2. The remaining allegations shall continue; and,
3. The respondents shall file a Response to the remaining allegations within 35 days of the date of this Interim Decision.

35I am not seized of this Application.