Shortly after a person files a human rights complaint, the other party, which inevitably has more money and can likely afford a lawyer, can file an application to dismiss.
The purpose of this application is to try to prove that there is no reasonable probability of success. Generally they can establish this by saying there’s no evidence that sexism, or racism or disability or whatever the alleged discrimination was, ever crossed the mind of the person doing the discriminating.
In most questions they would be right because no one in their right mind would openly tell someone that they are firing them due to their race, gender or disability.
In this regard, the complainant is at a substantial disadvantage. They don’t have access to the evidence they gathered in the workplace because they were fired. They can’t interview the witnesses, because those witnesses are likely employees who don’t want to be fired. They don’t have access to emails that passed between employees or management.
As well, there is no way they could get this information because an application to dismiss is a preliminary motion.
There may very well be relevant information that is hidden for view that would come out during a hearing, but this is prevented by the application to dismiss.
It doesn’t have to be that way. In the past, there would be an investigation and people would actually say things like, “We felt threatened by his dark, brooding appearance,” or “Women take too much time off compared to men.” If nothing of this sort came forward, the investigator could then advise the Tribunal that there wasn’t enough evidence to proceed.
Without an investigation, and without access to evidence, the complainant is extremely limited in what they can prove in response to an application to dismiss.
In my case, I could prove that the new publisher was openly contemptuous of me and I was soon replaced by a male reporter with only six months of experience, but from there the Chair of the Tribunal Bernd Walter just let his imagination run wild, and made a completely unsubstantiated allegation that I couldn’t even defend myself against because the respondent hadn’t even put it forward.
It’s highly unlikely that this would have been an issue if there were a fair preliminary investigation into my complaint, and I wonder how many complainants have, in the absence of documented evidence, been treated the same way.