Application to Dismiss Complaint: Complaint Does Not Allege a Contravention of the Human Rights Code

Information Sheet DA3

Conditions for dismissal: section 27(1)(b) of the Human Rights Code

For the Tribunal to dismiss a complaint under s. 27(1)(b) of the Code, you must show:

The facts alleged by the complainant, even if proved, could not be discrimination under the Code.

Discrimination under the Code

With respect to most areas of daily life protected under the Code, there are 4 parts to discrimination:

  1. 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)
  2. 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)
  3. The respondent’s conduct had an adverse impact on the complainant
  4. 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.

Information the Tribunal will consider in making its decision under s. 27(1)(b)

Under s. 27(1)(b), the respondent must show that, even if everything the complainant says in the complaint is true, it could not be discrimination under the Code.

The Tribunal will only consider the complainant’s version of the facts. The complainant does not need to prove discrimination at this stage. All they need to do is describe facts showing there could be discrimination.

In rare cases, a complaint may set out facts that, if proved, could not be discrimination because of a defence under the Code.

For example, a complainant alleges they were denied employment due to a recent conviction that is clearly related to the employment

The Tribunal does not consider any alternate version of the facts presented by the respondent or any defence the respondent might have, under s. 27(1)(b). (This information may be considered in an application to dismiss a complaint under s. 27(1)(c) or at the hearing of a complaint.)