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Speculation is not Evidence: Employee’s Belief they were Discriminated Against Deemed Insufficient by Human Rights Tribunal

April 9, 2024

Is an employee’s honestly held belief that their employer discriminated against them enough to satisfy the Ontario Human Rights Tribunal that their case shouldn’t be dismissed? Not according to a recent decision entitled Nell v. Car Nation Canada.

What happened?

The employee was a shuttle bus driver who alleged that his employer discriminated against him because of his age and disability by:

  • requiring him to provide his driver’s license, which revealed that he was 80 years old;
  • reducing the employee’s hours of work and assigning additional hours to a younger employee;
  • not allowing the employee to park in an area designated for persons with disabilities, thus forcing them to park in a space that was not their choice;
  • awarding a customer who allegedly assaulted the employee with a $400 credit; and
  • terminating the employee

In response, the employer argued that the employee’s claim of age and disability discrimination was nothing more than speculation. The employer argued that:

  • it was reasonable that an employee employed as a shuttle bus driver would be asked to show their driver’s license;
  • the employee’s claim that their hours were reduced because of their age was baseless;
  • the employee stated that the parking spot they ultimately selected was suitable, while all employees were asked to pick alternate parking spots if the one they wanted was unavailable; and
  • there was no connection between the employee’s age or disability and the fallout from their altercation with the customer

Speculation is not enough to establish discrimination

The human rights tribunal held a hearing to determine if the employee’s case should be dismissed because it had no reasonable prospect of success. At such hearings, employees are expected to discuss which evidence they can present to support claims that they were discriminated against.

Ontario’s Human Rights Code prohibits workplace discrimination based on several grounds, including age and disability.

The Tribunal found that the employee failed to provide any evidence showing that their employer’s conduct was linked to their age or disability. The employee was also unable to identify any evidence that would be reasonably available to them to establish they were discriminated against.

That said, the Tribunal found that the employee truly believed that they were discriminated against. But the tribunal also made it clear that an employee’s suspicion and belief that they have been discriminated against is not enough. Rather, the employee must also provide evidence showing a link between the adverse treatment they received and a ground protected by the Ontario Human Rights Code

The Tribunal dismissed the employee’s claim after determining it had no reasonable prospect of success.


The Human Rights Code prohibits discrimination in the workplace and strives to ensure that all employees are treated equally and fairly. However, discrimination remains a serious workplace issue resulting in conflict, litigation and investigation. A discrimination claim is inherently personal and emotional because it involves an allegation that an employee is being mistreated due to an integral aspect of themselves that often cannot be changed. For that reason, employees can hold onto strongly held beliefs that the negative treatment they experience in the workplace is caused by certain traits or characteristics protected by the Code.

While a discrimination claim is serious for the employee making the complaint, the same is true for the employer responding to it. An employer’s reputation is on the line, as are the morale and perception of its employees. The tribunal appears to recognize this in the Nell decision by establishing that an employee’s genuine and honestly held belief that they have been discriminated against will be insufficient if there is no evidence linking the mistreatment to a Code-protected ground. In other words, speculation is not evidence in the Tribunal’s eyes and cannot be the basis for a discrimination claim.