Back in April 2013,
we reported on a Human Rights Tribunal (the Tribunal) decision
where a summary hearing was granted and an application was
dismissed as having no reasonable prospect of success. A newly
released decision involving a beauty pageant demonstrates the
Tribunal's increasing and welcomed use of the summary hearing
In Baksh v. Beauties of Canada et al., 2014 HRTO
1, Sandra Baksh (the Applicant) claimed discrimination after
she was refused admission to a beauty pageant, allegedly because of
her race and other similar grounds. The Tribunal on its own
initiative considered a summary hearing application because
"it appear[ed] that the applicant may be unable to prove a
link to the ground or grounds alleged".
The Tribunal reiterated the test applied at a summary hearing:
Is there a reasonable prospect of success? This is
determined after assuming that an applicant's version of events
is true. The Tribunal also noted that:
"accepting the facts alleged by
the applicant does not include accepting the applicant's
assumptions about why she was treated unfairly. The purpose of the
summary hearing is to determine if reasonable inferences can be
drawn from the facts or evidence the applicant is able to point to
which tend to support the applicant's belief that she has
In this case the Applicant was a black woman whose designer
clothing store supplies dresses for beauty pageant
contestants. One of the Respondents was Beauties of Canada
(the Pageant), the organization that selects Canada's
representative at the international Miss Universe Pageant. It does
this by holding preliminary pageants in Canada.
In 2012 the Pageant allowed, for the first time, a transgendered
woman to be a contestant. This attracted attention and became an
international news story.
The Applicant had provided evening gowns for some of the
Pageant's contestants, including the transgendered
contestant. She alleged that the transgendered contestant
yelled at her when she was fitting her evening gown. She also
alleged that the transgendered contestant kept her waiting,
rejected dresses that had been ordered, and deliberately damaged
one of the gowns.
The basis of the Applicant's discrimination complaint was
a) she had attended the preliminary
competition where several contestants were wearing gowns that she
had provided. She alleged that she was later asked to leave
the lobby once she began speaking negatively to the media about the
transgendered contestant; and
b) she was later refused entry to the final
competition of the Pageant. She alleged that she was told that this
was because of her previous behaviour in the lobby.
Ultimately the Tribunal found that to have a reasonable prospect
of success, the "applicant must be able point to some evidence
that would support the proposition that there is a link between the
treatment she complains of and the remaining grounds set out in the
Application". With respect to being asked to leave the lobby,
the Tribunal found that it was simply an assumption by the
Applicant that race was a motivation. Also, the Tribunal noted that
the Applicant's attempt to publicly broadcast her complaints
about the transgendered contestant was a plausible explanation.
The Applicant was also unable to point to any evidence that her
race was a factor in being denied entry to the final competition.
The Tribunal found that she had no evidence on this allegation; she
had nothing more than speculation.
Employers should take note of this decision, as many will at
some point be on the defending end of a human rights application
containing thin and unsupportable allegations. In such cases,
consider whether it is appropriate to ask to the Tribunal to
dismiss the complaint on a summary basis. The worst case scenario
is probably that the request is heard and rejected. As is evident
in an increasing number of cases, an employer may be successful and
avoid the time and expense of a full-blown human rights
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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