I'm actually not sure what the standard would be in that other situation. I'm not sure how a court would approach that. Certainly, it would be the civil burden of proof—right?—the balance of probabilities, etc. If you are proving reprisal, it's the same burden of proof. It's a balance of probabilities.
The problem with reprisals is that you start with a proposition that the act in question is legitimate and then you have to prove otherwise, and that puts a heavy burden on the complainant, whereas in the case you're talking about, there's a standard out there that's applicable to the respondent or the defendant. In a way it almost shifts the burden, so to speak, because we're looking at whether they complied with that standard.
When I think it through, I guess in that sense it might be easier. I just think that the nature of reprisal as an insidious, difficult thing in the workplace is uniquely suited to an expert investigator, an expert decision-maker, or an expert tribunal to deal with, as opposed to a court dealing with a more general duty on behalf of somebody vis-à-vis a complainant or employee. I think the need for expertise in this area is crucial. I draw on the human rights jurisprudence for that, because we know that human rights commissions and tribunals have developed an expertise that enables them to identify discrimination and find it.