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Summary Hearing

This is general information only. It is not legal advice about your situation. This publication is not a substitute for a lawyer’s research, analysis and judgment. This information sheet is reliable as of the date of publication. You should be aware that the law and procedures under the Human Rights Code and at the Human Rights Tribunal of Ontario are subject to change without notice.

  1. Introduction
  2. How does a party to an application request a summary hearing?
  3. How do I respond to a party’s request for a summary hearing?
  4. What does the Tribunal do next?
  5. Can I respond to a Tribunal initiated summary hearing?
  6. Do the Tribunal's Rules about disclosure of documents and witness statements apply to a summary hearing?
  7. How can I prepare for a summary hearing?
  8. What will happen at the summary hearing?
  9. What happens after the summary hearing is over?

Introduction

Rule 19A of the Human Rights Tribunal of Ontario’s (Tribunal) Rules of Procedure (Rules) states that the Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application, or part of the application, will succeed.

The purpose of the Rule is to allow the Tribunal to avoid full hearings where it is clear from the outset that there is no possibility of success. There are two ways that a summary hearing may commence – a party, usually the respondent, requests it or it is initiated by the Tribunal on its own (without any request by a party).

Note: The summary hearing procedure applies only to applications filed under section 34 or 35 of Part IV of the Human Rights Code (Code). Summary hearings are not available for transition applications related to human rights complaints that were filed with the Ontario Human Rights Commission before June 30, 2008.


How does a party to an Application request a summary hearing?

At any time after an application has been filed with the Tribunal, a party may make a request for a summary hearing. In most cases, it is the respondent who makes the request. Where a respondent, or other party, is requesting a summary hearing, the party must deliver to the other parties and file with the Tribunal a Request for Summary Hearing (Form 26), which must include full argument in support of the request that the application be dismissed.

The party making the request must also deliver to all the other parties a copy of the Tribunal’s Practice Direction: Summary Hearing Requests which is available on the Tribunal's website .


How do I respond to a party’s request for a summary hearing?

A party who has received a Request for Summary Hearing (Form 26) may respond to the request by completing a Response to Request for an Order (Form 11), delivering a copy to all parties and filing it with the Tribunal, along with a Statement of Delivery (Form 23), not later than fourteen (14) days after the Form 26 was delivered.


What does the Tribunal do next?

The Tribunal will review the Form 26 and the Form 11 and will decide whether to hold a summary hearing. It will often issue a Case Assessment Direction setting out its decision to hold or not hold a summary hearing, but the Tribunal is not required to give reasons for either decision following a party’s request.

If the Tribunal decides to hold a summary hearing, it will send all of the parties a Notice of Summary Hearing telling them the date and time of the hearing. The Notice will indicate if the hearing will take place by teleconference or in person. If the hearing is by teleconference, instructions for participating in the teleconference will be provided. If in person, the Notice will indicate the hearing location.


Can I respond to a Tribunal initiated summary hearing?

Yes. The Tribunal holds summary hearings, on its own initiative, when it questions, based on the information provided in the application, whether there is a reasonable prospect of success. The Tribunal may be of the opinion that a summary hearing is warranted because the facts stated in the application, even if they are true, do not appear to support a Code violation. Or it may be that the Tribunal is of the view that it appears unlikely that there will sufficient evidence available to support the applicant’s claim of a Code violation.

There is no process for responding to the Tribunal initiated decision that a summary hearing will take place, as the Tribunal has already decided that a hearing will take place. However, you will be entitled to respond at the summary hearing itself. The Tribunal will send all of the parties a Notice of Summary Hearing. The Notice will indicate if the hearing will take place by teleconference or in person. If the hearing is by teleconference, instructions for participating in the teleconference will be provided. If in person, the Notice will indicate the hearing location.


Do the Tribunal's Rules about disclosure of documents and witness statements apply to a summary hearing?

No. The Tribunal’s Rules with regard to disclosure of documents (Rule 16) and disclosure of witnesses (Rule 17) do not apply to summary hearings. Instead, the Tribunal may give directions about the steps the parties must take prior to or at the summary hearing, including with respect to what documents and witnesses may be required.


How can I prepare for a summary hearing?

The summary hearing is not generally intended to be a process in which an applicant leads evidence in a formal way through witnesses or documents. Rather, it is a process in which an applicant identifies the evidence that he or she has or that may be reasonably available, and makes arguments as to why the applicant believes that this evidence shows that his or her application has a reasonable prospect of succeeding.

If key evidence is contained in documents, it is a good idea to bring them to the summary hearing. They are not required to be disclosed to the other side, however, unless the Tribunal specifically directs. Production of documents is not mandatory at the summary hearing stage, and the Tribunal will not generally order it, until after a summary hearing.

Sometimes an applicant believes that the respondent has documents that are necessary to prove his or her case. The applicant should point this out to the Tribunal and this will be taken into account in determining whether the matter should proceed beyond a summary hearing.

As noted above, the Tribunal will often issue a Case Assessment Direction in advance of a summary hearing, setting out what is expected by the Tribunal. It may provide guidance about the issues that the applicant should be prepared to address at the hearing. For example, the Tribunal might want to know how the applicant intends to prove that the events complained about are related to a ground of discrimination under the Code.

A good way to prepare for a summary hearing is to review the case law (or jurisprudence) that the Tribunal has issued with regard to other summary hearings. Tribunal decisions are published on the Canadian Legal Information Institute website.


What will happen at the summary hearing?

The purpose of the summary hearing is to give an applicant an opportunity to explain how there is a reasonable prospect that the application can succeed.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application are true, can succeed in law. In these cases, the focus will generally be on the legal analysis and whether what an applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove that his or her Code rights were violated.

A common basis for the Tribunal to initiate or for a respondent to request a summary hearing is because it may appear that the application fails to identify any links between the alleged discriminatory treatment and the grounds cited. In such cases, the focus of the summary hearing will deal with whether an applicant can show a link or connection between an event(s) (e.g. termination of employment or treatment in a restaurant or on public transportation) and the ground(s) (e.g. age, disability, sex, race, etc.) upon which he or she makes the claim. The issue at the summary hearing will be whether the applicant has any evidence from which it might be possible to show a link between the event(s) and the ground(s).

For example, an application may allege that the applicant was denied service in a restaurant based on his or her race. The application may allege that a) there was a denial of service and b) that the applicant is of a certain race. Both of these allegations may be true, however, in order to succeed the applicant would require some evidence, other than the applicant’s own personal beliefs or opinions, that a reason for the denial of service in the restaurant is linked to race.


What happens after the hearing is over?

After a summary hearing, the Tribunal will consider all the evidence and submissions and issue a decision. Once the decision is made, a copy of the decision will be sent to the parties.

The Tribunal may dismiss all of an application, or just part of it, on the basis that there is no reasonable prospect that the application, or that part, will succeed. Reasons must be provided by the Tribunal for a decision to dismiss the application, or part of it, based on the request for a summary hearing or the Tribunal initiated summary hearing.

Alternatively, the Tribunal may decide not to dismiss all, or part, of the application and may provide case management directions for the next stage in the processing of the application. Reasons are not required to be provided by the Tribunal where the decision is not to dismiss an application following a summary hearing.