The Court of Appeal has dismissed Olumide Smith’s appeal over his claim that the Office of the Ombudsman discriminated against and harassed him on racial grounds. It agreed with the High Court that he had not established a prima facie case of discrimination, and made an indicative order that he pay the respondents’ appeal costs, subject to a possible further hearing on costs.
The case arose after the Legal Aid Board revoked a legal aid certificate granted to Smith for family law proceedings in 2015. The Board later refused legal aid for separate judicial review proceedings. Smith complained to the Ombudsman about the Board’s decisions. In March 2018, the Ombudsman rejected his second complaint and then declined to review that decision, saying the subject matter had already been dealt with.
Smith alleged that the Ombudsman’s handling of the complaints amounted to race discrimination and harassment. The Workplace Relations Commission rejected the complaints. On appeal, the Circuit Court dismissed the claim after Smith did not provide evidence that he had been treated less favourably because of race. The High Court dismissed his subsequent appeal, which was limited to points of law.
The Court of Appeal said the High Court had been entitled to examine the legal issues and agreed that the Circuit Court applied the correct burden-of-proof test. A complainant must first establish facts from which discrimination may be presumed; only then does the burden shift to the respondent. The court said Smith had provided no evidence that the Ombudsman treated him differently from other complainants, or that the decisions would have been different if the complainant’s race or ethnicity had been different.
The court also rejected Smith’s argument that the Ombudsman wrongly treated his two complaints as concerning the same subject matter. It held that the Ombudsman had considered and rejected the second complaint, and was entitled under section 4(6) of the Ombudsman Act 1980 to decline a further review. Any error in connecting the complaints, the court said, would not by itself amount to evidence of discrimination.
The appeal also raised complaints about the accuracy of a Circuit Court transcript and other alleged procedural and rights violations. The Court of Appeal found no basis to depart from the transcript and said the other rights claims did not fall for determination in these proceedings. It dismissed the appeal in its entirety.
The costs order is provisional: the court indicated Smith should pay the respondents’ costs of the appeal, with the amount to be determined if not agreed. He may request an oral hearing on the appropriate costs order within 14 days of delivery of the judgment.