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.
- How is a request to expedite an application made?
- What is a declaration?
- What happens after a request to expedite is filed?
- What legal test is applied in a request to expedite an application?
- What happens if a request to expedite is granted?
- What happens if a request to expedite is denied?
- Can a reconsideration be requested if a request to expedite is granted or denied?
An applicant may request, under Rule 21 of the Human Rights Tribunal of Ontario’s (HRTO) Rules of Procedure (HRTO Rules) that the HRTO deal with an application (Form 1) by way of an expedited proceeding.
If an application is expedited, it will be processed by the HRTO more quickly than would normally be the case. The HRTO has the discretion to determine on a case by case basis whether there are urgent circumstances which warrant giving an HRTO application priority for HRTO resources over all other applications.
There is a very high threshold for expediting an application. The circumstances of the case must be truly urgent and exceptional. Examples may include applications with claims of very serious health conditions, allegations that a child is not receiving appropriate support services or where incarcerated people have serious disability related accommodation needs.
It is important to understand that each request to expedite an application will be decided on its own facts and circumstances. Every case is different The HRTO will consider the evidence submitted and apply the relevant law to decide if an applicant’s situation is truly urgent and exceptional.
An applicant must complete a request to expedite (Form 14) and file it at the HRTO along with the application. A request to expedite must:
- describe in detail the urgent and exceptional circumstances that may affect the fair and just resolution of the application if it had to proceed through the HRTO’s regular process;
- describe in detail the harm that would result from the application being processed according to the regular HRTO timelines;
- explain why the application should be given priority over other HRTO matters or why an applicant's circumstances are more urgent than those in other HRTO applications;
- describe in detail the requested changes to the HRTO's regular process, including the changing of dates or timeframes, if applicable; and
- provide one or more declarations signed by persons with direct first-hand knowledge detailing all the facts upon which the applicant relies to support the request.
A declaration is mandatory under HRTO Rule 21.2 and the HRTO may dismiss or refuse to consider a request to expedite if an applicant fails to provide one. See Bassis v. Commissionaries Great Lakes, 2016 HRTO 78 (CanLII). In Bartolucci v. St. Joseph’s Care Group, 2019 HRTO 989 (CanLII) the HRTO refused to process a request to expedite due to the applicant’s failure to provide a declaration.
If an applicant is relying on medical circumstances to support the request, then evidence in the form of medical documentation from a registered medical practitioner will generally be required.
A request to expedite an application requires one or more declarations from persons with first-hand knowledge detailing all the facts upon which the applicant relies in support of the request.
The declaration is the crucial evidence that will be considered by the HRTO when deciding whether to expedite the application.
A declaration must be signed by the person who is making the declaration and should only contain facts that are based on direct, firsthand knowledge.
Any relevant documents should be attached to the declaration, and the declaration should explain how the person making the declaration has firsthand knowledge of each document and its content. This includes any medical or other third-party evidence.
Only the information contained in the declaration will be considered as evidence when the HRTO reviews a request for an expedited proceeding. Information in the application itself, or submissions in the request to expedite (Form 14), are not evidence that can be considered by the HRTO.
The HRTO will review the request to expedite and may direct a respondent to provide a response to the request (Form 15). The HRTO may also deny the applicant’s request to expedite without requiring a response.
If directed to do so by the HRTO, a respondent has seven (7) days to deliver and file their response (along with a Statement of Delivery (Form 23)).
If the HRTO requires a response to the request to expedite, it will review the request and the response and determine whether to order an expedited proceeding. In almost all cases, the HRTO will decide the request to expedite based on the written materials submitted and will not hold an oral or in person hearing.
Once again, it is important to understand that the HRTO will only expedite an application and give it priority over other HRTO applications in exceptional circumstances.
The HRTO has refused to grant requests to expedite unless the circumstances requiring the particularly rapid resolution of the human rights dispute are truly urgent. See, for example, Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 (CanLII).
The HRTO may grant a request to expedite where a refusal would render the applicant’s remedy for the alleged human rights breach **moot or unavailable. See Ebrahimi v. Durham District School Board, 2009 HRTO 1062 (CanLII) and Burstow v. University of Toronto, 2019 HRTO 1540 (CanLII).
An applicant who has not filed the HRTO application promptly after identifying the alleged human rights breach will rarely be given the priority for HRTO resources of an expedited proceeding. See Kwan v. Hospital for Sick Children, 2009 HRTO 621 (CanLII).
The HRTO has held that financial pressures, as well as emotional and psychological stress do not usually meet the high threshold of being truly urgent circumstances. See, for example, Nadarajah v. Centre for Addition and Mental Health, 2019 HRTO 1359 (CanLII).
Finally, general, vague, or speculative statements about the harm that may result if an application is not expedited is usually insufficient to establish that an application is truly urgent. See, for example, LaBelle v. Rich Products of Canada, 2010 HRTO 755 (CanLII), and Burstow v. University of Toronto, 2019 HRTO 1540 (CanLII).
HRTO Rule 21 itself does not set out any specific change to the HRTO’s process if a request to expedite is granted. The HRTO will determine, on a case-by-case basis, what changes might be necessary to its adjudication processes in a particular expedited proceeding.
Changes may include reduced timelines (e.g., timelines for a Response (Form 2), a Reply (Form 3), or disclosure), setting early hearing dates, and, where the parties have consented to mediate, scheduling a rapid mediation date. The HRTO may also exercise its powers to direct the hearing process to ensure a quick decision.
See, for example, Kerdman v. College of Family Physicians of Canada, 2009 HRTO 1049 (CanLII), where the HRTO scheduled a conference call with the parties on an expedited basis to discuss setting early hearing dates, whether and in what way timelines should be adjusted, and to determine the parties’ interest in an expedited mediation.
Where the HRTO denies a request to expedite, it need not give reasons. See HRTO Rule 21.2.1.
In Fish v. National Steel Car Ltd., 2012 HRTO 358 (CanLII), the HRTO dismissed an applicant’s argument that he was denied procedural fairness when he was not provided with reasons for the refusal of his request to expedite.
In some cases, an applicant will simply receive notice by e-mail, fax or mail from the HRTO that a request to expedite an application has been considered and denied. In other cases, the HRTO may issue a formal interim decision.
No. Under Rule 26.1 of the HRTO Rules, reconsideration is only available from a final decision. A final decision is one that disposes of, or concludes, some or all the central issues in the application.
A HRTO decision to expedite a proceeding is a procedural decision. It relates to when deadlines will be set and when the hearing will be scheduled. The decision does not decide any of the legal issues raised in the application itself.
The same is true of a decision to deny or refuse a request to expedite. In many cases the HRTO has determined a refusal to expedite proceedings is not a final decision within the meaning of Rule 26.1 and as such is not subject to reconsideration.
See, for example, Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 66; Quintieri v. Dufferin-Peel Catholic District School Board, 2009 HRTO 1313; Fish v. National Steel Car Ltd., 2012 HRTO 358 and Wambach v. Canadian Soccer Association, 2014 HRTO 1761 (CanLII).