This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (January 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.
Now you will need to begin to prepare all the other legal documents that are necessary in order for your application to be listed for a hearing. Once again, you must serve your documents on all of the respondents, the Tribunal and the Attorney General and then file all these documents with the court registrar along with proof of service of all those documents.
In legal terms, the process of serving and filing your legal documents is referred to as “perfecting” your application for judicial review. There are a number of documents that must be prepared, served and filed in order to perfect your application. These are:
- an Application Record;
- a Factum;
- a Book of Authorities and
- a Certificate of Perfection.
Application Record
The applicant must serve and file an “application record”. Rule 68.04(2) sets out the contents of an application record. The application record must contain the following documents, in consecutively numbered pages, in the following order:
- a table of contents,
- a copy of the Notice of Application,
- a copy of the reasons of the court or tribunal whose decision is to reviewed, with a further typed or printed copy if the reasons are handwritten,
- a copy of all affidavits and other materials served by any party for use on the application,
- a list of all relevant transcripts of evidence, and
- a copy of any other material in the court file that is necessary for the hearing of the application.
Note that a “transcript of evidence” is a typed version of the oral evidence and submissions heard by the Tribunal. However, the Tribunal does not make a record of its proceedings and it is rare for a party to record the proceedings. This means that most judicial review hearings do not include a transcript of evidence in the applicant’s application record. For more information see the Tribunal’s Practice Direction on Recording Hearings.
Applicant’s Factum
As the applicant, you must also serve and file a “factum”. A factum is a concise statement of the law and argument that you intend to present at the hearing of your application. Rule 68.04(3) sets out the contents of the factum. The factum must include the following:
- Part 1: A statement identifying the applicant, as well as the court or tribunal whose decision is to be reviewed and stating the result in that court or tribunal;
- Part 2: A concise summary of the facts relevant to the issues on the application, with specific reference to the evidence;
- Part 3: A statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue;
- Part 4: A statement of the order that the Court will be asked to make, including any order for costs;
- Schedule A: List of authorities referred to; and
- Schedule B: Text of all relevant provisions of statutes, regulations and by-laws.
Your factum is supposed to be a “concise summary” of fact and law. Factums should not be more than ten (10) pages in length. Any factum that is more than thirty (30) pages requires prior approval from a judge of the Divisional Court before it can be filed. See the Practice Direction (Consolidated Practice Direction for Divisional Court Proceedings) on Factums in the Divisional Court.
All of these parts and schedules in the factum must be numbered consecutively throughout the factum. It must be signed by the applicant or, if applicable, the applicant’s lawyer. Three (3) copies of your factum must be filed with the court.
In addition, the Court also encourages parties to file electronic versions of their factums and transcripts in judicial review applications to the Divisional Court. For more about filing electronically, see the Practice Direction on Filing for Divisional Court Proceedings.
Book of Authorities
A “book of authorities” (or “casebook”) includes all the Tribunal and court decisions and any other authorities (such as excerpts from legal textbooks or articles) that you intend to refer to in oral argument.
You should also highlight (or sidebar) the relevant portion(s) of the authority so that the Court can easily find and read that portion of the decision or other authority that you want to bring to their attention in oral argument. See the Practice Direction on Books of Authorities.
A book of authorities must be served on the respondents, the Tribunal and the Attorney General before the hearing of your application for judicial review. Often it is filed when the application is perfected but it does not technically need to be filed at that time. Three (3) copies of the Book of Authorities should be filed with the court.
Certificate of Perfection
A “certificate of perfection” (Form 68B) is your proof that you have perfected your application (see Rule 65.05). It is a certification that all the material required to be filed by the applicant for the hearing of the application has been filed. Also, the certificate must include the names, address and telephone numbers of the lawyers for the parties and/or the names, addresses and telephone numbers of the party or parties that are not represented by a lawyer. You should also include the names, address, and telephone number of the Tribunal and the Attorney General.
When the certificate of perfection has been filed at the Court, the registrar will place the application on a list for hearing and send the Notice of Listing for Hearing (Form 68C) by mail to the parties and the other persons named in the certificate of perfection. The Notice of Listing for Hearing will advise you of the next steps required in order to get a hearing date for your application to be heard by the Divisional Court.
What if I need to make an urgent application for judicial review?
Most applications for judicial review are heard by a three judge panel of the Divisional Court. However, under section 6(2) of the JRPA, an application for judicial review may also be made to a single judge of the Superior Court of Justice where it appears to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
“Leave” (or permission) of a judge is required in these types of circumstances and such leave is granted only in exceptional circumstances. Your case must be one of urgency and the delay required for an application to the Divisional Court must be likely to involve a failure of justice. The test for the required leave under section 6(2) of the JRPA is set out in Savone v. Law Society of Upper Canada, 2013 ONSC 1015 (CanLII). You should speak with a lawyer if you are considering such an urgent application, particularly because if you are unsuccessful it is likely that you will have to pay the legal costs of the responding party.
Can the Tribunal’s decision be postponed while an application for judicial review is waiting to be heard by the Court?
The filing of a judicial review application does not automatically postpone the Tribunal decision from taking effect: see section 25(2) of the Statutory Powers Procedure Act (JRPA). If a party wants to “stay” (i.e. suspension or postponement) the enforcement of the Tribunal’s decision, it must either bring a motion to Divisional Court or request a stay from the Tribunal itself.
Section 4 of the JRPA authorizes the Divisional Court to make any interim order as it considers proper pending the final determination of the application. Therefore, an applicant may bring a motion to the Court for a stay of the Tribunal decision pending the resolution of the judicial review application.
An applicant seeking to stay the Tribunal order may bring a motion before a judge of the Court or a request for a stay to the Tribunal under Rule 19 of the Tribunal’s Rules of Procedure. The Court or Tribunal applies a three (3) part test in deciding whether to grant a stay or not. The test is set out in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. See also Washington v. Toronto Police Services Board, 2009 HRTO 640. In order to obtain a stay of the Tribunal proceedings, an applicant must show that:
- there is a serious issue to be tried;
- it will suffer irreparable harm if the stay is not granted; and
- the balance of convenience favours granting the stay.
The first factor – serious issue – requires a preliminary assessment of the merits of the judicial review application. In general, the Court or Tribunal has taken the view that this is a low threshold and the applicant simply needs to show that the application is neither frivolous nor vexatious.
The second factor – irreparable harm – has been interpreted by the Court to mean harm that cannot be quantified in monetary terms (i.e. that money cannot compensate for the harm if a stay is not granted).
The third factor – balance of convenience – requires an assessment as to which of the parties would suffer greater harm from the granting or refusal of the stay pending a decision on the judicial review application.
What happens at the hearing of the application for judicial review?
There will be three (3) judges of the Divisional Court on the panel. The purpose of the hearing is to provide the parties with the opportunity for oral argument. The Court will have read the factums, the record of proceedings and the books of authorities beforehand and will be very familiar with the case. The point of the hearing is to get the parties to focus on the key issues and arguments. This requires a lot of preparation and practice to be effective.
The judges will have many questions for the parties to help them understand the positions being taken. You should do your best to answer these questions. Avoiding or evading the Court’s questions is generally not helpful and may ultimately lead the Court to view a party as non-cooperative or unhelpful.
The applicant presents their oral argument first. The respondent then provides their argument and the applicant has a right of reply. A reply is the applicant’s opportunity to respond to new matters raised by the respondent, but should not be used to repeat arguments made before the respondent. A reply should be very short and concise.
In addition, the Tribunal will be given the opportunity to make oral submissions. If the Attorney General of Ontario has decided to become involved, a lawyer representing the Attorney General will also be able to make oral submissions to the Court.
When might a court grant an application for judicial review?
If there is an error of law. The Court recognizes that the Tribunal has specialized knowledge and experience about human rights and the Code and will normally give the Tribunal’s decision a fair degree of respect.
However, the Court has a general supervisory power to review the Tribunal’s decision-making in order to ensure that the proper legal principles have been set out and applied. It will therefore intervene if it considers it necessary to do so in a given case.
For example, the Court may intervene if it finds that the Tribunal did not give you a fair hearing. It may also intervene if it finds that the Tribunal had no authority to deal with the subject matter of your application. In contrast, a Court will not allow a judicial review application to succeed to correct a technical error made by the Tribunal unless the technical error results in a substantial wrong or a miscarriage of justice.
How and when does the Court give its decision?
After the hearing, the Court will give its decision to the parties. Sometimes, the Court will give a brief oral endorsement at the end of the hearing itself. Other times, the Court will reserve its decision and then release written reasons for its decision to the parties at a later date.
There is no rule as to how long a decision will take to be released by the Court when the decision is on reserve. It depends on a number of factors including how complicated the case was and how many legal issues and arguments were raised by the parties. In most cases, however, a decision will be released by the Court within two (2) or three (3) months.
What does the court do if it decides to grant the application for judicial review?
If the Tribunal has made a legal error, the Court will usually “set aside” the Tribunal’s decision. This means that the Court will direct the Tribunal to make a new decision again without making the same error. The Tribunal will schedule a new hearing with a different member of the Tribunal than the one who made the original decision.
In some cases, the Court may decide to make its own order and avoid sending it back to the Tribunal for a new hearing. However, it is rare for the Court to substitute its own order. For example, see Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), at paragraphs 60-65, where the Court dismissed a request to make its own order and instead, as is the usual practice, referred the case back to the Tribunal for its further consideration.