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 success.
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 age.
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, [1999] 3 SCR 3 (“Meiorin”). The Tribunal in Espey 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 Espey 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 Espey.
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 law.
