Application to Dismiss Complaint: Complaint Has No Reasonable Prospect of Success
Information Sheet DA4
Conditions for dismissal: section 27(1)(c) of the Code
For the Tribunal to dismiss a complaint under s. 27(1)(c) of the Code, you must show:
There is no reasonable prospect the complaint will succeed at a hearing.
Information about how a complaint succeeds at a hearing
The complainant must prove facts to establish discrimination.
With respect to most areas of daily life protected under the Code, there are 4 parts to discrimination:
- The respondent’s conduct took place in an area of daily life protected under the Code (employment, services, tenancy, purchase of property, membership in a union or association)
- The complainant has a characteristic (or is perceived to have a characteristic) protected under the Code (a ground of discrimination, such as race, sex, or disability)
- The respondent’s conduct had an adverse impact on the complainant
- There is a connection between the respondent’s conduct and the ground of discrimination
With respect to publications, employment advertisements, and discrimination in wages based on sex, there is a specific test for discrimination.
See the Information Sheets about human rights in each of the protected areas under the Code.
If the complainant proves discrimination (called a “prima facie” case of discrimination), the respondent must prove any defence they have. See Information Sheets about responding to a complaint.
At a hearing, each party gives evidence and can cross-examine the other party’s witnesses to “test” their evidence. The Tribunal then considers the credibility of the witnesses and makes findings of fact regarding discrimination and, if a prima facie case is proved, about any defence the respondent has.
Reasons the Tribunal may dismiss the complaint under section 27(1)(c)
The Tribunal is not deciding the complaint or any defence. Instead, it is deciding whether a hearing is not warranted because there is no reasonable chance that the complaint will be successful at a hearing.
The Tribunal may dismiss the complaint if it determines that:
- there is no reasonable prospect that the complainant will prove one or more of the parts of discrimination at a hearing, or
- there is no reasonable prospect of success because a defence would be proved at a hearing.
The Tribunal may dismiss a complaint even if the parties have different views about what happened. However, if there are two different versions about important facts, the Tribunal may not be able to conclude that there is no reasonable prospect of success. In other words, the only way to assess the facts in some cases is at a hearing where the evidence is “tested”.
A respondent’s arguments and information under s. 27(1)(c)
A respondent must convince the Tribunal there is no reasonable prospect of success at a hearing. A respondent should attach information to support what they say in an application.
For example, if a respondent says they fired the complainant because of performance problems, it may be important to give the Tribunal information from the people who knew about the performance problems and the decision to fire the complainant, and back this up with documents, such as performance reviews.
In STEP 6 of the dismissal application, a respondent explains why the complaint has no reasonable prospect of success. The respondent should:
- State what part(s) of discrimination the complainant has no reasonable chance of proving at a hearing and/or what defence the respondent will be able to prove, and why.
Here are three examples:
The complainant has no evidence to show a connection between the respondent’s conduct and the ground of discrimination.
Even if the complainant has some evidence, the respondent’s evidence shows the ground was not a factor in the treatment of the complainant.
Even if the ground was a factor, the respondent can prove its conduct was based on a bona fide occupational requirement.
- Explain how the information attached to the application supports this.
The complainant alleges that her age was a factor in the decision not to hire her. Although the complainant is older than the successful candidate and is qualified for the job, she has no reasonable chance of proving that her age was a factor in the decision not to hire her.
The only reason the respondent hired the successful candidate is because she was the most qualified. The successful candidate’s experience was superior to the complainant’s. Also, the successful candidate performed better in the interview, based on her answers to the questions. The decision to hire the successful candidate was based only on her superior experience and performance in the interview.
- the resume of the complainant and of the successful candidate (except identifying information). This shows the successful candidate had 2 years’ management experience and 10 years’ experience in the industry compared to the complainant (1 year and 5 years).
- the hiring criteria and the hiring committee’s notes which show the successful candidate’s answers were superior in 4 out of 5 areas.
- affidavits from each member of the hiring committee explaining the job, the hiring process, and that the complainant’s age played no role whatsoever in the decision not to offer her the job.
The complainant has no evidence, other than she is older than the successful candidate, to support a possible finding of discrimination. However, in light of the evidence attached, there is no reasonable chance that the Tribunal would conclude at a hearing that the complainant’s age was a factor in our decision not to offer her the job.
A complainant’s arguments and information under s. 27(1)(c)
When responding to an application to dismiss the complaint, a complainant must address the respondent’s arguments and information. A complainant should attach information to support what they say in their response.
For example, if documents and witnesses will support the facts in the complaint, it may be important to give the Tribunal copies of the documents and information from those people, giving details about what they saw or heard.
The complainant must respond to the information attached to the dismissal application and to the arguments in STEP 6 of the application form. The complainant should:
- Say whether the respondent accepts or disputes each of the four parts of discrimination.
For example the respondent may not dispute that it employed the complainant, fired him, and that the complainant is black. In this case, the only question at a hearing would be whether there is a connection between the termination and the complainant’s colour.
- State any disagreement with what the respondent has said.
For example: If the respondent says a complainant has no evidence beyond their belief that race was a factor in the termination, the complainant should explain what happened that shows race was a factor.
If the respondent says the complainant was fired for performance reasons and not because of race, the complainant should provide their view about performance issues, including whether and when these were brought to the complainant’s attention.
- Explain why the respondent has not shown there is no reasonable prospect of success
For example: The respondent says the complainant has no reasonable prospect of proving that her age was a factor when they did not hire her.
First, this is not only speculation. It is reasonable to infer that the complainant’s age was a factor because she was equally qualified for the job, and what distinguished her from the person who was hired is her age.
Second, the respondent says that the successful candidate’s experience was better, but the resumés do not show this. The complainant’s 4 years at ABC Company is also in the industry and she had management responsibilities there. Even if there is some difference in experience, both candidates had enough to be short-listed, and the respondent told the complainant that the final decision would be based on the interview.
The respondent said the successful candidate did better in the interview and gave better answers in 4 out of 5 areas. There are two problems with this. First, the answers in 3 of the 5 areas were only 1-2 marks apart. Second, the respondent weighted the areas so that the one area the successful candidate got much higher marks was worth more than the one area where the complainant got much higher marks. You will see from the attached job description and posting that the area where the complainant did better on is identified as the key qualification, and one where the successful candidate did better is not even mentioned.
The respondent does not explain this. The complainant would need the chance to cross-examine the hiring committee about why it weighted the questions to challenge their evidence that the complainant’s age played no role.
A respondent’s reply argument and information
A respondent can reply to the complainant’s information and arguments, but should not repeat its initial argument or raise new issues in its reply.