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.
It is common for there to be requests by a respondent or from the Human Rights Tribunal of Ontario (HRTO) itself to seek an early dismissal of a HRTO Application (Form 1). This means that the HRTO considers whether there is a good legal reason to stop the HRTO application before there is a full merit hearing to decide whether there is a violation of the Human Rights Code (Code).
Many HRTO applications are subject to this type of preliminary hearing. The purpose of many preliminary hearings is to permit the HRTO to decide whether to let the HRTO application continue or to dismiss the application or some part of the application.
If the HRTO decides to dismiss the HRTO application at a preliminary hearing, this is known as an early dismissal of an HRTO application.
There are several situations where the HRTO, on its own initiative, or a respondent by request may seek early dismissal of your application before a full hearing on the merits of your application. 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 the HRTO application
Section 45.1 of the Code empowers the HRTO to dismiss an HRTO application before a full hearing on the merits of an HRTO application where the substance of the HRTO application has already been appropriately dealt with by another legal proceeding.
The purpose of section 45.1 is to avoid the duplication of legal proceedings or the re-opening of human rights facts and issues that have already been appropriately dealt with elsewhere. Section 45.1 reflects a general legal principle – the doctrine against re-litigation — that a party ought 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 of to the HRTO;
- whether there was an opportunity for the complainants 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 expend public and private resources on the relitigating of what is essentially the same dispute; and
- whether it would be unfair in all the circumstances to prevent the re-litigation.
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 dealing with an attempt at the HRTO to dismiss your HRTO application early based on section 45.1.
See, for example, Nagy v. University of Ottawa, 2020 HRTO 544 (CanLII), where the HRTO determined that the previously decided legal issue before the University’s Senate Appeals Committee was not essentially the same as the substance of the HRTO application. The HRTO application was allowed to proceed.
ii. There has been a settlement and a full and final release in the other legal proceeding
The HRTO may not allow an HRTO application to proceed if you settled a previous legal proceeding and there is a full and final release (e.g. a union grievance settled by the parties). Section 23(1) of the Statutory Powers Procedure Act (“SPPA”) provides that the HRTO may make such orders or give such directions as it considers proper to prevent an abuse of process. Agreeing to a settlement in a prior legal proceeding and then trying to later relitigate the same issues 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 any further legal proceedings. If you later file an application at the HRTO, this is often the subject of a request by the respondent in your HRTO application to have your HRTO application dismissed because you agreed to not bring any more legal proceedings against the respondent.
You should be aware it is very difficult to argue that a full and final release should not be applied to bar your HRTO application. If you argue that you were under some emotional, psychological or economic pressure, or that you did not understand the release because, for example, of a lack of sophistication in legal matters, this usually will not be enough to persuade the HRTO that the release should not apply as a basis for the early dismissal of your HRTO application.
You should always consider getting independent legal advice before you agree to sign a full and final release. A release, once agreed to, is very difficult to set aside later. See for example, Peele v. Hamilton (City), 2020 HRTO 820 (CanLII), where the HRTO found the applicant was bound by the release in the 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 to decide human rights issues and you are barred from going to the HRTO or continuing 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 discretion in these circumstances to hear your HRTO application. The HRTO must order 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) provides that a 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 held that the requirements of section 34(11)(a) were met since the civil proceeding sought damages for the same violations alleged in the HRTO application, and the application was held to be statute barred 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 legal authority (i.e., jurisdiction) to deal with. The HRTO’s jurisdiction is derived from the Code.
The HRTO does not have the jurisdiction to inquire into claims of unfairness, bias or poor decision-making. The HRTO likewise 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 Workers Safety and Insurance Tribunal Board or the Ontario Labour Relations Board.
For example, the HRTO does not have the jurisdiction to hear an HRTO application if:
- the HRTO application does not relate to a prohibited ground of discrimination (for example, race or disability) or a social area of activity (for example, housing or employment) covered by the Code;
- the events or incidents of discrimination happened outside Ontario; or
- the organizational respondent is a federally regulated company or industry (e.g., a chartered bank, an airline, a television or radio station, a telephone company or a company that operates buses and railways that travel between provinces).
Where the HRTO considers a HRTO application to be outside the jurisdiction of the HRTO, the HRTO may dismiss part, or all, of a HRTO application on its own initiative (see HRTO Rule 13) or at the request of a respondent.
See, for example, Cox v. Eccentric Artists Technical Services Ltd. o/a Communicate Freely, 2020 HRTO 914 (CanLII), where the HRTO found that the organizational respondent established that it provided the capacity for interprovincial communication and therefore 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.
v. the application has no reasonable prospect of success
The HRTO may hold a hearing under HRTO Rule 19A, on its own initiative or at the request of a respondent, on the question of whether an HRTO 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. This is known as a summary hearing.
Frequently, the purpose of a summary hearing is to allow the HRTO to assess the nature of an applicant’s evidence in more detail. An applicant is given an opportunity to describe and explain what evidence they would present at a full hearing, and to also explain how that evidence might establish a link to a prohibited ground of discrimination in the Code.
If, during the summary hearing procedure, an applicant is able to provide evidence in respect to the allegations of discrimination which were not apparent from the application, and that provide a Code based legal theory that potentially shows a link between the events and an applicant’s ground of discrimination (e.g., disability) then the HRTO application may not be dismissed and will continue through the HRTO’s adjudication process.
The leading HRTO case on summary hearings is Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII), where the HRTO determined that, in some cases, the focus of the summary hearing 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, on a balance of probabilities, that his or her 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 provides 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 mandatory one (1) year limitation period is consistent with the Code’s policy objective that human rights claims should be dealt with expeditiously. The Code therefore requires an applicant to act with all due diligence and file their application within one (1) year when seeking to pursue a human rights claim under the Code.
Under section 34(2) of the Code, a person may apply to the HRTO more than one (1) year after the incident to which an application relates (or the last incident in a series of incidents) only where the HRTO is satisfied that the delay in filing the application was incurred in good faith and, if so, that no substantial prejudice would result to any person affected by the delay if the HRTO application were to proceed.
You should be aware that the HRTO has held there is a high onus of proof on applicants to provide a good faith explanation for any delay. In determining the issue of good faith, the HRTO has considered factors such as the duration of the delay, whether any Code-related reasons (such as disability) directly impeded 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 period in question.
It can be very difficult to get the HRTO to allow your HRTO application to proceed if you are outside the one (1) year limitation period. You should always make every reasonable effort to file on time at the HRTO whatever your circumstances may be.
See, for example, Singh v. DH Corporation, 2020 HRTO 895 (CanLII), where the HRTO found the allegation of termination of employment was timely but that the allegations relating to the additional bonus payments that the applicant did not receive were out of time and were dismissed. The HRTO also found that the allegations did not constitute a series of incidents within the meaning of section 34(1).
The leading HRTO case on delay in the context of a series of incidents is Garrie v. Janus Joan Inc., 2012 HRTO 1955 (CanLII), where the HRTO outlined the factors relevant to a determination of whether allegations of discrimination are timely because they relate to a series of incidents:
a. What is the last alleged incident of discrimination to which the application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. 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
d. What is the temporal gap between alleged incidents of discrimination?
Finally, see Solway v. Dr. David Walt Dentistry Professional Corporation cob Walt Orthodontics, 2020 HRTO 917 (CanLII), for a discussion of what an applicant must show to establish a good faith explanation for delay in filing a HRTO application.
You should also note that, if a good faith explanation is not established, then the HRTO does not need to consider the other issue of whether there is any substantial prejudice under section 34(2) of the Code. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 (CanLII).
It depends on the reason a respondent is seeking early dismissal of your HRTO application. In some cases, a respondent must 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 need not file a Response (Form 2).
For example, where a respondent seeks early dismissal of a HRTO application for any of the first three (3) reasons set out above – 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 HRTO Rule 8.2 and section 6 of the Response (Form 2).
This means that a respondent does not have to file a full Response (Form 2) when they receive your application from the HRTO. 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
On the other hand, for example, where a respondent requests an early dismissal of an application under section 45.1 of the Code, 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.
Yes. You are always entitled to make submission to the HRTO where there is a request for early dismissal of HRTO your application. But this does not mean that you will always have an opportunity to make in person submissions.
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 provides that where an application is within the jurisdiction of the HRTO, the HRTO must provide the parties with an opportunity to make oral submissions. The critical issue is whether the HRTO application is within the HRTO’s jurisdiction.
For example, the HRTO may believe your HRTO 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.
On the other hand, for example, if a respondent is seeking early dismissal on the basis of section 45.1 of the Code and the issue is whether the earlier legal proceeding has already appropriately dealt with the substance of your application to the HRTO, then you will be given the opportunity to make both written and oral submissions. See HRTO Rule 22.
Yes. The HRTO has the authority to reconsider its own decisions under section 45.7 of the Code where the application was dismissed due to delay.
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.
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 be determinative of 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, outweigh the public interest in the finality of HRTO decisions.
You should note that a request for reconsideration is a discretionary remedy and there is no right to have a decision reconsidered by the HRTO. This means 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. For more information about reconsiderations at the HRTO, see the Centre’s self-help guide: Reconsiderations.
See, for example, Vansantvoort v. Greater Sudbury (City), 2020 HRTO 818 (CanLII), where the HRTO, where the applicant failed to meet the test for reconsideration and the request for reconsideration was denied in circumstances where the application had been dismissed as having no reasonable prospect