This guide is general information only. This guide is not a substitute for a lawyer’s research, analysis and judgment, and is not legal advice about your situation.This guide is reliable as of the date of publication (July 2026). 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.
Introduction
It is common for a respondent or the Human Rights Tribunal of Ontario (HRTO) itself to seek an early dismissal of a HRTO Application (Form 1). This means that the HRTO will decide whether there is a good legal reason to stop your application before a full merit hearing.
Many HRTO applications may go through this step. After a preliminary hearing, the HRTO will decide whether to let the application continue to a full merit hearing, or to dismiss the entire application or some part it.
If the HRTO decides there is a valid legal reason to stop your case at this early stage, its called an early dismissal.
What are the types of early dismissal of an HRTO application?
There are several situations where the HRTO may consider early dismissal, either on its own, or at the request of the respondent. The six (6) most common types of early dismissal by the HRTO are set out below.
i. Another legal proceeding has already appropriately dealt with the substance of your HRTO application
Section 45.1 of the Code allows the HRTO to dismiss an application before a full hearing when the substance, or the issues at the heart of your application has already been appropriately dealt with by another legal process.
The purpose of this section is to avoid duplicating legal proceedings or re-opening human rights facts and issues that have already been appropriately dealt with somewhere else. Section 45.1 reflects a general legal principle – the doctrine against re-litigation — that a party should not to be allowed to bring the same case twice.
The legal test the HRTO applies under section 45.1 generally involves a consideration of the following:
- whether there was concurrent jurisdiction to decide human rights issues;
- whether the previously decided legal issue was essentially the same as what is being complained about to the HRTO;
- whether there was an opportunity for the applicant to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the HRTO uses itself;
- whether it makes sense to use public and private resources on the re-litigating of what is essentially the same concern or issue; and
- whether it would be unfair in all the circumstances to prevent the re-litigation.
Learn more through our Guide on Choosing where to file your human rights claim or complaint.
This is a complicated area of law. Each case is different and must be assessed on its own facts. You should always seek independent legal advice if you are looking to fight an attempt at the HRTO to dismiss your application early based on section 45.1.
ii. There has been a settlement and a full and final release in the other legal proceeding
The HRTO may not allow an application to proceed if you settled a previous legal proceeding and there is a full and final release (such as a union grievance settled by the parties). Section 23(1) of the Statutory Powers Procedure Act (“SPPA”) says that the HRTO can make an order to prevent an abuse of process. Agreeing to a settlement in another legal proceeding and then trying to later re-litigate (or raise the same issues in another legal process) at the HRTO is often found to be an abuse of process.
When you sign a release as part of a settlement in the other legal proceeding, you are usually agreeing to not bring forward any other legal proceedings. If you later file an application at the HRTO, it is likely the respondent will request to have your application dismissed because you agreed to not bring any more legal proceedings against them.
It is very difficult to argue against a full and final release to stop your HRTO application. Arguing that you were under some emotional, psychological or economic pressure, or that you did not understand the release because, for example, you don’t have a legal background, usually will not be enough to persuade the HRTO not to dismiss your application.
You should always consider getting independent legal advice before you agree to sign a full and final release in any legal proceeding. Once agreed to, a release is very difficult to change later.
See for example, Peele v. Hamilton (City), 2020 HRTO 820 (CanLII), where the HRTO found the applicant was bound by the release in a previous settlement agreement, rejected arguments that the applicant was under duress, and dismissed the application as an abuse of process.
iii. There is a civil court proceeding requesting a remedy based on the alleged human rights infringement
The Ontario courts, such as the Ontario Superior Court of Justice, also have the jurisdiction (or legal authority) to decide human rights issues and you are not allowed to go to the HRTO or continue with an HRTO application if you have also asked for a human rights remedy in a court proceeding. See sections 34(11) and 46.1 of the Code.
The HRTO has no choice in these circumstances — it must order an early dismissal of your HRTO application if the other legal proceeding is a court proceeding and the circumstances set out in section 34(11) of the Code apply to your case.
Section 34(11) says that an HRTO application may not be made in three (3) cases:
- where a civil proceeding has been commenced in a court and an order under section 46.1 is sought and the civil proceeding has not been finally determined or withdrawn;
- where the court has finally determined the Code issue; or
- where the civil proceeding has settled.
See, for example, Grogan v. Municipality of Port Hope, 2020 HRTO 978 (CanLII), where the HRTO determined that the requirements of section 34(11)(a) were met since the civil proceeding asked for damages (monetary compensation) for the same violations in the HRTO application. The application was determined to be statute barred (past a legal time limit) by the Code and was dismissed.
iv. The application is outside the HRTO’s jurisdiction
The HRTO can only decide HRTO applications that the HRTO has the jurisdiction, or legal authority, to deal with. The HRTO’s jurisdiction is set out in the Code.
The HRTO does not have the jurisdiction to look into claims of unfairness, bias or poor decision-making. The HRTO also does not have the authority to hear appeals or reviews from the decisions of other administrative decision makers such as the Landlord and Tenant Board, the Workplace Safety and Insurance Board or the Ontario Labour Relations Board.
See, for example, Cox v. Eccentric Artists Technical Services Ltd. o/a Communicate Freely, 2020 HRTO 914 (CanLII), where the HRTO found that the respondent fell under federal jurisdiction. The Code therefore did not apply to the respondent’s actions as an employer and the HRTO had no jurisdiction to hear the application. The proper legal forum was to file an application at the Canadian Human Rights Commission instead.
The HRTO may decide, on its own or at the request of a Respondent, to dismiss all or part of an application that is outside the jurisdiction of the Tribunal (see HRTO Rule 13). In this case, the HRTO can dismiss an application without a preliminary hearing, based solely on the application and any submissions you file in response to a Notice of Intent to Dismiss (NOID), where it is plain and obvious that it is outside of the HRTO’s jurisdiction. If the HRTO determines that it is not plain and obvious the application is outside its jurisdiction, it may still schedule a preliminary hearing to hear further evidence and submissions on the issue before deciding if the application is within its jurisdiction to decide. See the HRTO Practice Direction on Jurisdiction and the Jurisdictional Reviews Informational Sheet & FAQ for more information.
v. The application has no reasonable prospect of success
The HRTO may decide on its own, or at the request of a respondent, to hold a summary hearing under HRTO Rule 19A, to consider whether part or all of an HRTO application should be dismissed because there is no reasonable prospect (or real chance) that the application will succeed.
At a summary hearing, an applicant is given an opportunity to describe and explain what evidence they would present at a full hearing, and can also present new evidence that wasn’t provided in the initial application. They can explain how their evidence shows that discrimination happened in relation to a prohibited ground under the Code.
If the applicant’s evidence shows a link between the events and a ground of discrimination (e.g.: disability) then the application may continue through the HRTO’s process instead of being dismissed.
In some cases, such as Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII), the focus of the summary hearing will generally be spent looking at whether what an applicant claims to have happened can be reasonably considered to be 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, on a balance of probabilities, that their Code rights were violated by showing a link between the event and the prohibited ground of discrimination.
vi. The application was filed outside the Code’s one (1) year limitation period
Section 34 of the Code says that a person may file an HRTO application within one (1) year of the incident (or the last incident in a series of incidents) of alleged discrimination. This is part of the Code’s policy objective that human rights claims should be dealt with as soon as possible. The Code therefore requires an applicant to act with all due diligence and file their application within a mandatory one (1) year mandatory limitation period.
Under section 34(2) of the Code, a person may only apply to the HRTO more than one (1) year after the incident (or the last incident in a series of incidents) if the HRTO is satisfied that the delay happened in good faith and, if so, that no substantial prejudice would result to any person affected by the delay if the application were to proceed.
That said, it can be very difficult to get the HRTO to allow your application to proceed if you are outside the one (1) year limitation period. You should be aware that there is a high onus of proof on applicants to provide a good faith explanation for any delay. The HRTO will consider factors including the length of the delay, whether any Code-related reasons (such as disability) directly impacted the applicant’s ability to file an application, the nature of the allegations, and whether the applicant was able to raise the allegations in other legal forums or other venues during the time period in question.
If a good faith explanation for a delay is not established, then the HRTO does not need to consider the second issue of whether continuing with the application would unfairly harm (or prejudice) either applicants or respondents under section 34(2) of the Code. See the case of Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 (CanLII) where the Tribunal dismissed the case as “out of time” after concluding that the applicant failed to establish that a delay was incurred in good faith.
You should always make every reasonable effort to file on time at the HRTO, whatever your circumstances may be.
An example of a case where the Code’s limitation period proved important was Singh v. DH Corporation, 2020 HRTO 895 (CanLII). In this case, the HRTO heard a claim relating to the termination of employment, which fell within the 1-year limitation period. However, this case additionally dealt with claims relating to additional bonus payments that the applicant did not receive, which the HRTO found fell outside of the 1-year limitation period window. Because of this, the applicant’s claim about termination of employment were allowed to go forward, but their claim about the bonus payments were dismissed.
The leading HRTO case on delay in the context of a series of incidents is Garrie v. Janus Joan Inc., 2012 HRTO 1955 (CanLII). In this case, the HRTO explained how to decide whether claims of discrimination are timely when they come from a series of related incidents:
- What is the last alleged incident of discrimination to which the application relates?
- Were there a series of separate and independent incidents of discrimination or was there a single incident of discrimination that had a continued impact?
- What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?; and
- What is the gap in time between alleged incidents of discrimination?
Finally, see Solway v. Dr. David Walt Dentistry Professional Corporation cob Walt Orthodontics, 2020 HRTO 917 (CanLII), where the HRTO stated that to establish a delay was in good faith, an applicant must provide a “reasonable explanation” for why they did not file their application on time.
Learn more through our Guide on Limitation Periods here.
How does a respondent seek an early dismissal of a HRTO application?
It depends on the reason a respondent is seeking early dismissal of your HRTO application. In some cases, a respondent may file a Response (Form 2) and bring a request for early dismissal by way of a Request for an Order During Proceedings under HRTO Rule 19.
In other cases, a respondent does not need to file a Response (Form 2) (requires PDF download). For example, when a respondent seeks early dismissal of a HRTO application specifically due to a settlement and release, a civil court proceeding, or federal jurisdiction, then a respondent does not have to specifically respond to the allegations in your HRTO application (see common types of dismissal i), ii) and iii) listed above). However, a respondent must:
- attach a copy of the applicable release, or statement of claim or court decision; and
- include with the Response (Form 2) a complete argument in support of its position that the application should be dismissed
To check if a respondent has made this kind of request correctly, see the HRTO’s Rule 8.2 and section 6 of the Response (Form 2).
A respondent can alternatively request an early dismissal of an application under section 45.1 of the Code. This means the respondent is arguing for a “dismissal in accordance with the Rules”: that the application has been “appropriately dealt with” by another legal body. Whether this is the case is usually determined by the HRTO (see below for more details).
To make this request, a respondent must complete the entire Response (Form 2) and must respond to the applicant’s allegations in the HRTO application. A respondent must also name the other legal proceeding, explain why they believe the other proceeding has appropriately dealt with the substance of the application and attach a copy of the document that started the other proceeding and a copy of the decision. See section 7 of the Response (Form 2).
Whatever steps a respondent takes to seek early dismissal of your HRTO application, you will be given the respondent’s documents and will be notified by the HRTO.
If a respondent or the HRTO seeks an early dismissal of a HRTO application, how can you argue against this request?
You will always have the opportunity to make a submission to the HRTO when there is a request for early dismissal of HRTO your application.
Depending on the circumstances, your submissions may be in the form of written submissions only. Other times, you may have a telephone or videoconference hearing and get to make both written and oral submissions.
Section 43(2) of the Code says that where an application is within the jurisdiction of the HRTO, the HRTO must provide the parties with an opportunity to make oral (verbal) submissions. Additionally, an application cannot be concluded without written reasons.
For example, the HRTO may believe your application is within the jurisdiction of the federal Canadian Human Rights Act because your employer is a federally regulated business. If that is the case, the HRTO will notify you of their intent to dismiss your application and you will be given an opportunity to make written submissions to argue why you believe the HRTO has jurisdiction to hear your application.
If the respondent asks to dismiss your case under section 45.1 of the Code (because another proceeding has already dealt with the main issues), you will also have a chance to respond. In this situation, under HRTO Rule 22, you can make written submissions and present oral arguments at a hearing.
If a HRTO application was dismissed early, may a request for reconsideration be made?
Yes. The HRTO has the authority to reconsider its own decisions under section 45.7 of the Code where an application is dismissed.
Under HRTO Rule 26, you may request a reconsideration of a final decision of the HRTO within thirty (30) days from the date of the decision. An early dismissal of your HRTO application is a final decision and is therefore subject to the HRTO’s powers of reconsideration.
There is no right to have a decision reconsidered by the HRTO. A request for reconsideration is a discretionary remedy, meaning it is up to the HRTO to decide. The HRTO will usually only reconsider a decision under Rule 26.5, or where it finds there are other equally compelling and extraordinary circumstances for doing so.
HRTO Rule 26.5 provides that a reconsideration will not be granted unless the HRTO is satisfied that:
- there are new facts or evidence that could potentially determine the case and that could not reasonably have been obtained earlier; or
- the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
- the decision or order which is the subject of the reconsideration request conflicts with established jurisprudence or HRTO procedure, and the proposed reconsideration involves a matter of general or public importance; or
- other factors exist that, in the opinion of the HRTO, are more important to the public interest than the finality of HRTO decisions.
See, for example, Vansantvoort v. Greater Sudbury (City), 2020 HRTO 818 (CanLII), where the applicant failed to meet the test for reconsideration and the request was denied in circumstances where the application had been dismissed as having no reasonable prospect.
For more information about reconsiderations at the HRTO, see the Centre’s self-help guide on Reconsiderations.