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 not easy to have a decision (or order) of the Human Rights Tribunal of Ontario (Tribunal) changed or overturned. In general, decisions of the Tribunal are considered final and are not subject to a right of appeal. However, if you want the Tribunal to reconsider its final decision in your application, you can request that it do so, following the reconsideration process under the Tribunal Rules of Procedure (Rule 26). This process is explained below.
It is important to understand that a review of a Tribunal’s decision is not intended to be a re-argument of your case. A review is also not an opportunity for a party to repair any deficiencies in the presentation of its case. The purpose of review is to determine if there is any significant error in the decision under review that justifies the decision being overturned.
Important Note: This information sheet deals only with applications under section 34 of the Code and Rule 26 of the Rules. If your application is based on a complaint previously filed at the Ontario Human Rights Commission and is part of the transition stream at the Tribunal (i.e., applications under sections 53(3) or 53(5) of the Code) then you should review Rule 25 of the Rules of Procedure for Transitional Applications which deals with requests for reconsiderations. For more information, see the Tribunal’s website.
The Tribunal may reconsider its final decision in any application upon request by either party, or on the Tribunal’s own motion. Section 45.7 of the Code provides the Tribunal with the authority to reconsider its decisions.
The Tribunal has issued rules governing requests for reconsideration (Rule 26) as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. The Rules of Procedure and Practice Direction on Reconsideration are both available on the Tribunal’s web site. It is a good idea to review Rule 26 and the Practice Direction before you decide to make a request for reconsideration.
Reconsideration is a discretionary decision. This means that you do not have an automatic right to have the decision reconsidered and that the Tribunal may decide that it will deny your request for a reconsideration. In general, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions. This means that very few decisions will be reviewed and changed by the Tribunal.
No. Rule 26.1 provides that a party “may request reconsideration of a final decision of the Tribunal.” There is no definition of what a “final” decision is in the Rules. This means that, in general, interim decisions of the Tribunal are usually not subject to a request for reconsideration.
Interim decisions are usually procedural decisions that deal with how your application will be handled by the Tribunal. For example, a Tribunal decision to defer your application – perhaps because you have filed a grievance based on the same facts – is an interim decision. Your application is still “alive” but your mediation and hearing dates will not be set while your grievance is proceeding. You cannot ask for reconsideration of this kind of interim decision.
But sometimes the Tribunal will issue a final decision without hearing all the evidence in support of an application. An example would be a decision to dismiss your application without a full hearing because another tribunal or board has already dealt with the issues raised in your application. Even though you have not had a full hearing, this would be a final decision because your application is dismissed and will not be allowed to proceed further.
A final decision is one that brings an application to its conclusion. This would include a decision finding that discrimination has occurred and a decision dismissing your application. In very limited circumstances, the Tribunal will reconsider a final decision.
Any party may request a reconsideration of a final decision of the Tribunal within thirty (30) days from the date of the decision.
A request for reconsideration must be made in Form 20 – Request for Reconsideration and be delivered to all parties and filed with the Tribunal. A request for reconsideration must include:
- Your reasons for the request, including the basis upon which the Tribunal is asked to reconsider its decision
- Your submissions in support of the request
- A statement of the result that you want (i.e. how should the decision be changed)
Note: If you wish to do some research in order to better prepare your request for a reconsideration, you should review our Finding Human Rights Decisions information sheet. In particular, a very useful legal research database is the Canadian Legal Information Institute.
Maybe. If you receive a request for reconsideration (Form 20) from the Respondent, you do not have to file a response with the Tribunal unless the Tribunal directs that a response is required. This is because the Tribunal may decide to dismiss the request for reconsideration upon review of the request itself without the need for any more information from you.
If the Tribunal asks that you file a response, this means that the Tribunal requires more information from you before making any decision. After having reviewed all the information, the Tribunal may decide to grant or dismiss the request for reconsideration. If you are directed to file a response to the request, you should use Form 21 – Response to Request for Reconsideration. You should include in Form 21 your full written submissions in support of your position.
It depends. Sometimes the Tribunal will begin a reconsideration process on its own initiative, without receiving a request for reconsideration from one of the parties. In that case, the Tribunal will provide all of the parties with an opportunity to make submissions.
Where a party is making a request for reconsideration and the request is filed, the Tribunal will send a notice confirming receipt of the application, which will indicate whether the other party needs to make submissions at this stage. Generally, the Tribunal will not ask for submissions at this point.
The Tribunal will not grant a request for reconsideration without first providing all of the parties with the opportunity to make submissions.
It is unlikely. The Tribunal usually makes its decision on a request for reconsideration based only on written submissions. In general, the Tribunal will not hold an oral hearing to determine whether to grant a request for reconsideration.
However, if you or another party has special Code-related needs that would make it difficult to effectively make written submissions, the Tribunal may accommodate those needs by holding an in-person hearing.
In most cases, the Tribunal member who heard the original matter will be assigned to determine the reconsideration request. Your request will be reviewed by the assigned Tribunal member. The Tribunal member must decide if your request establishes a basis for re-opening the decision.
Reconsideration is a discretionary remedy. This means there is no absolute right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
The decision on whether to grant a request for reconsideration is made based on the criteria set out in the Rules and on the facts of each request. Rule 26 provides that a request for reconsideration will not be granted unless the Tribunal is satisfied that one of the following circumstances applies:
- There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;
- The party seeking reconsideration was entitled to receive notice of the proceeding or a hearing but, through no fault of its own, did not;
- The decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
- Other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
Some examples of situations where the Tribunal might decide to refuse a request for reconsideration are:
- Where a party is trying to re-argue the case based on the same evidence
- Where a party disagrees with the factual conclusions in the decision but has no new evidence with a reasonable explanation as to why that evidence was not presented at the hearing
- Where a party is trying to repair perceived deficiencies in their presentation at the hearing, either by re-arguing the law or by raising new legal arguments
In addition, the Tribunal may decide not to ask an adjudicator to review your reconsideration request if the request simply repeats the substance of a previously unsuccessful reconsideration request.
The Tribunal has a broad discretion to review and reconsider a decision on its own initiative and may do so where it considers it appropriate to do so (see Rule 26). However, it would be a rare occurrence for the Tribunal to exercise this discretion.
If the Tribunal decides to reconsider a decision on its own initiative, it will determine a procedure for rehearing all or part of the matter. This procedure will include an opportunity for the parties to make submissions.
If the Tribunal decides to grant a request for reconsideration, the Tribunal will go on to consider whether or not the original decision should be varied or revoked. The Tribunal can set terms or conditions that will govern the scope and process that it will follow in reviewing the decision. If a reconsideration is granted with respect to only part of a decision, only that part of the decision will be reconsidered.
In considering the substance or merits of request for reconsideration, the Tribunal may, depending on the circumstances, direct the parties to file additional written submissions, provide an opportunity for oral submissions or hold a rehearing in whole or in part. Following a review of any new evidence and all the parties’ submissions, the Tribunal will issue a new decision that may vary, or refuse to vary, the original final decision in the application.