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.
After an Application (Form 1) has been filed at the Human Rights Tribunal of Ontario (HRTO), a party to the proceeding may make a Request for an Order During Proceedings (RODP) under Rule 19 of the HRTO Rules of Procedure (HRTO Rules) by using the HRTO Form 10.
The HRTO deals with numerous RODP and often makes many procedural decisions during a proceeding. Examples of RODP include requests to add a party, to amend an Application or to order a party to disclose documents.
RODP decisions are usually made by the HRTO in the form of an interim decision or a Case Assessment Direction (CAD). The HRTO strives to resolve the parties’ procedural disputes by ruling on RODP well in advance of a merit hearing. When this is not possible the HRTO has another pre-hearing process known as Case Management Conference Calls (CMCC). At a CMCC, the HRTO can address, among other things, procedural issues that have not yet been resolved as the hearing draws nearer.
For more information about the CMCC, see the HRTO Practice Direction on New Case Processing System and Case Management Conference Calls and the Centre’s self-help guide: Case Management Conferences.
An RODP may be made on a wide range of procedural matters that arise in a HRTO proceeding, including requests:
- to consolidate Applications so they are heard together;
- to add a party;
- to amend an Application or Response (Form 2);
- to defer an Application;
- to re-activate a deferred Application;
- for particulars;
- for production of documents; and
- to request a confidentiality order such as an anonymization (see the Centre’s self help guide: Access to Information and Protection of Privacy).
This list is not exhaustive. If your RODP is not listed in the HRTO Form 10, then you must check the box for “Other” and explain the type of order that you are requesting.
There are several steps to making an RODP. First, fill out a Form 10 and include all documents you are relying on with this Form 10. The Form 10 has several sections that ask for the following information:
- check off what you are requesting;
- describe the order requested in detail;
- explain the reasons for the request, including any facts relied on, legal submissions and case law in support of the request;
- advise of the other parties’ consent to your request;
- where requesting production of documents, explain if the document has already been requested and any response received;
- attach any documents you rely on to support your request;
- check off how you wish to the HRTO to hear your request (in writing, by conference call or in person); and
- advise if the other parties agree with your choice as to how the HRTO should hear your request.
Second, deliver a copy of Form 10 to all parties and any person or organization who has an interest in the RODP. Third, complete a Statement of Delivery (Form 23). Fourth, file the Form 10 and Form 23 with the HRTO.
If there is an RODP that request a non-party provide a report, statement or oral or affidavit evidence, then the Form 10 must be delivered to the non-party in addition to the other parties in the proceeding.
After a party serves and files an RODP, the other party can respond to it. The procedure is the same for both applicants and respondents.
First, fill out the HRTO’s Response to an RODP (Form 11) which includes indicating what you are responding to, your Response to the RODP and the reasons for your Response. If you are relying on any documents for your Response, you must provide copies of those all documents.
Second, deliver a copy of the Form 11 to all other parties and any other person or organization that has an interest in the RODP. Third, complete a Statement of Delivery (Form 23). Fourth, file the Form 11 and Form 23 with the HRTO.
You must file your Response (Form 11) to an RODP not later than fourteen (14) days after the RODP was delivered to you.
The HRTO will review the Form 10 and Form 11 and consider the parties’ documents, evidence, arguments, and submissions. Typically, the HRTO will issue a written decision on the RODP as an interim decision or a CAD.
However, the HRTO may not always issue an interim decision or CAD in advance of a HRTO mediation or hearing. It often depends on what type of RODP is being requested and at what stage of the HRTO proceeding the RODP is being made.
As noted above, the HRTO has another pre-hearing process – the CMCC – that permits the HRTO to address outstanding procedural issues that have not been resolved before the hearing date.
In most cases, a reconsideration under HRTO Rule 26 will not be available from an HRTO interim decision ruling on an RODP because most RODP decisions are not final decisions and are not subject to the HRTO’s powers of reconsideration. In addition, where a RODP is decided in a HRTO CAD, this is not a HRTO order or decision that may be reconsidered under Rule 26.
There are some rare exceptions when a reconsideration of an RODP decision could be sought. For example, where an interim decision denies an applicant’s RODP request to add a respondent to the application. Because the decision to not add a respondent is a final decision regarding the potential liability under the Code for that respondent, it would fall within the scope of Rule 26.
For more information about requests for reconsiderations, see the Centre’s self-help guide: Reconsiderations and the HRTO’s Practice Direction on Reconsiderations.
There are several steps you should take in order to make sure that your need for accommodation is dealt with properly. It is very helpful if you can make your request for accommodation in writing and keep a record of the responses you get.
The following steps are recommended:
- Ask for the accommodation and explain why you need it;
- Provide information that is directly relevant to your needs, restrictions or limitations (this may include medical information);
- Participate in discussions about possible accommodation solutions;
- Co-operate with any expert whose assistance is required;
- Consider different forms of reasonable accommodation offered even if it is not the exact accommodation you requested; and
- If you are an employee in a union, contact your union representative to get information about your employer’s accommodation procedures.
It is important to understand that your request for accommodation should be clear and detailed. Providing enough information early in the accommodation process can help make the process move faster and more effectively.
For example, simply telling an employer that you need to work from home on a permanent basis as a disability-related accommodation, without more, will simply lead to many questions from an employer to understand why this might be necessary in your situation.
Take the time and make the effort to explain your disability related needs, restrictions, and limitations and, where possible, include medical information to support your request.
Once you make your request for accommodation, an employer, service provider or landlord should take reasonable steps to respond, including:
- Accepting the accommodation request in good faith, unless there are legitimate reasons for acting otherwise;
- Understanding someone might not use the word “accommodation” when they are looking to be served in a way that meets their needs;
- Obtaining expert opinion or advice where needed;
- Taking an active role in exploring a range of reasonable options;
- Keeping a record of the accommodation request and action taken;
- Maintaining confidentiality;
- Limiting requests for information (e.g. medical information) to what is relevant to your needs, limitations or restrictions; and
- Responding to accommodation requests in a timely manner.
It is important to understand that an employer, for example, is not obliged to simply agree with your request for accommodation. Asking for accommodation is often just the first step in an accommodation process that can, depending on the circumstances, take some time to work out.
Your preferred accommodation may not always be what you will get. Other reasonable accommodation options must be considered, and if alternatives are offered, you should seriously consider them.
Simply saying that other reasonable accommodations will not work and refusing to consider them could be a problem later if you end up filing an application at the HRTO.
It is often said that accommodation is a two-way street. This means that the accommodation process requires co-operation and collaboration from both sides. An employee, for example, who requests accommodation in the workplace must also cooperate in the process of fining the appropriate accommodation. .
The person requesting accommodation has obligations under the duty to accommodate. This is often called the duty to co-operate in the accommodation process. This means that the search for accommodation is an ongoing process and both parties must participate in this process in good faith, reasonably and be open and ready to seriously consider different ideas and suggestions.
This is often referred to as the “accommodation dialogue”, meaning that there is often a lot of back and forth between the parties before a reasonable accommodation may be found and applied.
For example, an employee with a disability has the obligation to disclose enough information about the disability to permit the employer to determine the appropriate accommodation. The employee should also assist in the identification and implementation of the appropriate accommodation.
If the employer proposes a reasonable course of action for the employee to try and fulfill the accommodation request, the employee has a duty to participate to the extent necessary.
A good discussion of the duty to accommodate as a multi party inquiry, including the duty to co-operate, can be found in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC).
Accommodation disputes are not uncommon. This is because the accommodation process is a search for what is reasonable, and not perfect, accommodation. People can disagree about what is reasonable in the circumstances.
What may be reasonable accommodation measures are a question of fact and will vary with the circumstances of each case.
Again, it is important to keep in mind that your request for accommodation is often just the first step in a collaborative effort to come up with a reasonable solution. This means that you need to be prepared to work with the other side in good faith and respond to questions or issues that may arise as the accommodation process takes place.
Yes. The duty to accommodate under the Code is not unlimited. The legal limit is called undue hardship.
An employer, landlord or service provider is not required to accommodate a person’s needs beyond the point at which the accommodation would cause undue hardship to the business or operation.
The duty to accommodate places an onus on the person responsible for accommodation, such as an employer, to find a way to accommodate the needs of the employee.
This means that an employer, landlord or service provider must provide an accommodation unless doing so cause undue hardship. This implies that some amount of hardship is acceptable when providing accommodation.
In determining whether an accommodation measure may create undue hardship, the following factors may be considered:
- Costs: this includes any reasonably expected financial costs associated with the accommodation as well as any outside sources of funding that may be available; and
- Health and safety risks: this includes the risk to the person requesting the accommodation as well as other employees, residents, services users and/or the general public.
An employer, landlord or service provider can not claim undue hardship just because an accommodation request, such as building an accessible washroom, would be expensive. It is expected that accommodation may require some amount of financial hardship.
To claim that an accommodation expense would impose undue hardship on a business, the business operator may have to prove that the cost is so extreme it would seriously interfere with running the business.
The Code limits what factors may be considered as part of the undue hardship analysis to the cost and health and safety risks. Factors such as undue business inconvenience, resentment or hostility from other co-workers, the operation of collective agreements or customer preferences may not be considered.