If a human rights application is not dismissed, settled through mediation, or otherwise
resolved, the application will proceed to a hearing before the Human Rights Tribunal of
Ontario. During a hearing, generally the applicant must first prove a prima facie case of
discrimination.^116 The respondent then has an opportunity to rebut the prima facie case
by proving that it did not discriminate, that it could not have accommodated the
applicant due to undue hardship, or that the impugned action is not subject to liability
under the Code.^117
A. Proving Prima Facie DiscriminationThe Supreme Court of Canada’s 1985 decision in Ontario Human Rights Commission v.
Simpsons-Sears outlines the analysis that must be undertaken to determine whether
discrimination has occurred pursuant to a statutory human rights regime. Known as the
“O’Malley test”, the claimant must identify with a protected personal characteristic or
ground, and must demonstrate a distinction causing disadvantage based on that
protected ground.
In O’Malley the Supreme Court held that a prima facie case is, “...one which covers the
allegations made and which, if they are believed, is complete and sufficient to justify a
verdict in the complainant’s favour in the absence of an answer from the respondent-
employer.”^118 The Human Rights Tribunal has described a prima facie case as
whether, assuming the allegations to be true, there is discrimination.^119
A prima facie case must be proven in accordance with the civil standard of proof, on a
balance of probabilities.^120 The threshold for establishing a prima facie case is not high.
The Tribunal has recognized that discrimination is often covert and that respondents
(^116) Note that the Tribunal has questioned whether the legal principle of prima facie case should be
employed in the context of summary hearing procedures. See Pellerin v. Conseil scolaire de district
catholique Centre- 117 Sud, 2011 HRTO 1777 (CanLII).
O’Malley, supra note 14 at para 23; Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1982), 3
C.H.R.R. D/781 (SCC) at 207 118 -209; Entrop v. Imperial Oil Ltd., supra note 78 at paras. 75-81.
119 O’Malley, supra note 14 at paras. 27-28.^
120 Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 (CanLII) at para 7.^
O’Malley, supra note 14 at para 27.