Where’s The Proof?
An examination of the prima facie principle of investigation
In the examination stage of any complaint of harassment and discrimination, a determination as to the existence (or absence of) a prima facie case is necessary. Let’s review some case law in order to properly make such a determination.
Mr Olson filed a complaint to the Human Rights Tribunal that he had been discriminated against on the basis of his sex in the handling of a complaint of bullying against him. Mr Olson was informed by a supervisor (Mr Taylor) that he was the “natural selection” for a new position in a school that represented a promotion, however he could not give Mr Olson the position because of a complaint of bullying against him. Ms Mainville had complained that Mr Olson had bullied her. Mr Olson asked about the details of the complaint but Mr Taylor said that he had none. Mr Olson told Mr Taylor that Ms Mainville had made a previous unsubstantiated complaint against him.
Mr Olson first heard of the complaint on his final day of work before his holiday but he wanted it investigated immediately as it could have a detrimental affect on his career and community standing but Mr Taylor said that it would be investigated after the summer break.
Mr Olson felt that the bullying charge would have a “calamitous effect” on his entire life, including volunteer work that he did. He was registered in a course with a colleague and he was “hyper-vigilant” with respect to all his interactions, as he did not have any details as to what he may have done wrong. Mr Olson pushed for more information and eventually stated that he felt if he was a woman, the matter would have been dealt with immediately. Mr Olson submitted that further evidence of discriminatory conduct was the employer’s failure to follow their own policy.
There was some confusion in that matter as to if a complaint had even been filed, as there was little to no documentary evidence. Timelines were complicated due to several accidents involving Mr Olson that necessitated time away.
In the analysis and decision portion of the case, the arbitrator turned to the element of a prima facie case. The arbitrator referred to the Supreme Court case (O’Malley v. Simpsons-Sears Ltd) in which they defined the term. In part, a prima facie case refers to the allegations which, “…if the allegations are believed, is sufficient to justify a finding in the complainant’s favour absent an answer or justification from the respondent.” The arbitrator referred to a case heard by the B.C. Human Rights Tribunal (Abary v. North York Branson Hospital) to further illustrate the concept of prima facie. In part the decision read, “…prima facie evidence means that a party’s case has been taken out of the realm of conjecture and that his evidence in support of an issue is sufficiently weighty to entitle a reasonable man to decide the issue in his favour…”
One element that exists in this case, that I see regularly played out in my work is the element of a complainant asserting an element that they feel or think is at play, sometimes because they can think of no other explanation. However, in many cases, the complainant fails to provide any evidence as to why they believe this to be the case, beyond the general assertion. In this case, Mr Olson said that he believed he was discriminated against on the basis of his sex, yet he provided no evidence to back up that claim. The arbitrator concluded in the only way possible in my opinion, and the complaint was dismissed. The arbitrator noted, “There was no evidence of different or adverse conduct based on Mr Olson’s sex.” The analysis of the evidence was done, on the sole basis of the evidence presented by the complainant, who failed to meet this basic burden on proof.
Part of the work we do in the investigation of complaints of harassment and discrimination, involves this core concept, analysis of the complaint to determine how to proceed. A proper analysis with respect to the prima facie principle can increase organizational efficiency and workforce understanding of the importance of weighing evidence.
We are heading out of our summer season and into a packed training calendar for the fall and winter. I look forward to seeing you, or colleagues in our sessions, and discussing this concept further!