Executive Summary: Key Legal and Evidentiary Issues

• Applicant alleged sex-based discrimination and reprisal following termination during probationary employment.

• Human Rights Tribunal of Ontario dismissed the application at a summary hearing for lack of evidentiary support.

• Tribunal found no link between employer’s actions and the protected ground of sex under the Human Rights Code.

• Claims of sexual harassment based on student gossip were speculative and unsupported by particulars or evidence.

• Applicant failed to demonstrate that reprisal was a motivating factor in his dismissal.

• Divisional Court held the HRTO’s decision was reasonable and dismissed the judicial review application with costs.

Facts and outcome of the decision

Philip Tamming, employed as an Educational Assistant by the Durham District School Board, was terminated during his 70-day probationary period for several performance issues, including inappropriate interactions with female students, arriving late, sleeping in class, and a heated confrontation with a student. As a member of CUPE Local 218, his employment was subject to a collective agreement.

Following his dismissal, Mr. Tamming filed an application with the Human Rights Tribunal of Ontario alleging discrimination on the basis of sex, reprisal, and later, sexual harassment due to student gossip. He claimed the termination was not based on performance but was discriminatory because he is male and because he raised concerns about the rumours being spread by students.

The HRTO held a preliminary summary hearing and found that Mr. Tamming’s application had no reasonable prospect of success. The Tribunal accepted his version of events as true for the purpose of the hearing but found no evidence to support a connection between his sex and the employer’s decision to terminate him. It emphasized that belief or speculation about discrimination is not sufficient without evidentiary support. The Tribunal also rejected his arguments on sexual harassment and reprisal as lacking substance and particularization. The Ontario Labour Relations Board proceeding Mr. Tamming referred to was also withdrawn and bore no relevance to the discrimination claims.

Mr. Tamming sought judicial review, arguing that the HRTO erred in assessing the evidence and legal standards. The Divisional Court reviewed the HRTO’s decision under the standard of reasonableness, confirming that specialized tribunals are entitled to deference in matters within their expertise. The Court concluded that the HRTO applied the correct legal test and reasonably found that the allegations were not supported by evidence. The Court rejected Mr. Tamming’s arguments regarding new evidence and improper submissions by the employer, finding them irrelevant or unsupported.

The judicial review application was dismissed. The Court ordered Mr. Tamming to pay $6,000 in costs to the Durham District School Board. CUPE and the HRTO were not awarded costs.