In Gill v Human Rights Tribunal of Ontario, the
Ontario Divisional Court concluded that it is appropriate for the
Human Rights Tribunal of Ontario (the "Tribunal") to
summarily dismiss an application where its prior jurisprudence
suggests that the application has no reasonable prospect of
Gill was a suppression firefighter who was terminated at age 60
pursuant to a mandatory retirement provision in the collective
agreement between the Hamilton Professional Firefighters'
Association (the "Association") and the City of Hamilton.
Gill brought an application pursuant to section 5 of the Human
Rights Code, RSO 1990, c H 19 (the "Code")
alleging that the provision was discriminatory on the basis of
The Association filed a response and a Request for Summary
Hearing arguing that there was no basis upon which the Tribunal
could find an infringement of section 5 of the Code based
on its reasoning in Espey v London (City), 2008 HRTO 412
(CanLII) fourteen months before Gill's retirement. In
Espey, the Tribunal concluded that a mandatory retirement
provision for suppression firefighters prima facie violated section
5 of the Code, however the provision was justified as
being a bona fide occupational requirement pursuant to the
test laid out by the Supreme Court of Canada in British Columbia (Public Service Employee
Relations Commission) v BCGSEU,  3 SCR 3
("Meiorin"). The Tribunal in Epsey heard expert
evidence that the risk of cardiac events increases with age and
there was a high rate of cardiovascular deaths among firefighters
on the job. The Tribunal concluded that the mandatory retirement
provision was reasonably necessary to serve the health and safety
goals of the municipality and that accommodating individual
firefighters over the age of 60 would cause the municipality undue
hardship. As such, the complaint of GIll would not be heard on the
merits, as there was no reasonable prospect of success in light of
the Tribunal’s previous findings on identical facts.
On judicial review of the Tribunal’s reasoning, the
Ontario Divisional Court held that the Tribunal acted reasonably by
adhering to their previous decision in Epsey and declining
to hear the Gill case. While Gill was entitled to present novel
evidence, the Tribunal reasonably concluded that such evidence
would be unpersuasive and provided no basis for re-litigating the
findings in Epsey.
This decision illustrates a possible strategy for respondents to
have complaints dismissed prior to hearing where they have no
reasonable prospect of success. The Tribunal is not obligated to
hear each application on a case-by-case basis and can summarily
dismiss complaints in the name of efficiency and coherence where a
hearing would be redundant. This can occur where a complaint is not
within the scope of the Code or where, as in the
Gill case, the facts of the complaint will inevitably lead
to dismissal if the matter goes to hearing. While this result will
only come about in the clearest of cases, it may be a worthwhile
strategy to avoid the time and expense of hearing where it is
evident that the substance of a complaint is unsupportable in
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