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.
A summary hearing is a type of a preliminary hearing at the Human Rights Tribunal of Ontario (HRTO). These preliminary hearings often arise when there is a request by a respondent to dismiss an application under the Human Rights Code (Code), in whole or in part, early in the HRTO process.
For example, a respondent may ask for early dismissal of the application where an applicant files their application late and beyond the limitation period and argues that the HRTO does not have jurisdiction to hear the application, or where an applicant’s earlier legal proceeding may have already dealt with the substance of the HRTO application and argue that the HRTO application violates the doctrine against re-litigation.
A summary hearing is governed by Rule 19A. Rule 19A HRTO’s Rules of Procedure (HRTO Rules) states the HRTO may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether a HRTO application should be dismissed, in whole or in part, on the basis that the application has no reasonable prospect that the application, or part of the application, will succeed.
The purpose of Rule 19A is to allow the HRTO to review applications, prior to any full hearing on the merits, where there are reasonable grounds to believe that an HRTO application has no reasonable prospect of success at a merit hearing.
There are two (2) ways that a summary hearing may commence – a party, usually a respondent, makes a request to the HRTO for a summary hearing, or the summary hearing is initiated by the HRTO on its own motion (and without any request by any party to the application).
Where a respondent, or other party, requests a summary hearing, the party must deliver to the other parties and file with the HRTO a Request for Summary Hearing (Form 26), which must include full argument in support of the request that the HRTO application be dismissed.
The party making the request must also deliver to all the other parties a copy of the HRTO’s Practice Direction: Summary Hearing Requests, which is available on the HRTO’s website.
If you have received a Request for Summary Hearing (Form 26) you may respond to the request by completing a Response to Request for an Order (Form 11).
The Form 11 must be delivered to all parties and filed at the HRTO, along with a Statement of Delivery (Form 23), not later than fourteen (14) days after the Form 26 was delivered to you.
The HRTO will review, where a request is made by a respondent, the respondent’s Form 26 and an applicant’s Form 11 and will decide whether to hold a summary hearing.
The HRTO will often issue a type of procedural decision called a Case Assessment Direction (CAD) setting out its decision to hold or not hold a summary hearing. Whatever the HRTO decides to do, the HRTO is not required to give reasons for its decision to order a summary hearing. The HRTO may simply order based on its review of all the materials, and without providing a written explanation, that a summary hearing will be held or that a summary hearing will not be held. See Rule 19.5A.
If the HRTO decides to hold a summary hearing, then it will send all the parties a Notice of Summary Hearing advising of the date and time of the summary hearing. The notice will indicate if the hearing will take place by teleconference, videoconference or in person. Most summary hearings are not held by an in-person hearing.
If the hearing is by teleconference or by videoconference, instructions for participating in the teleconference will be provided. If the hearing is in person, the notice will indicate the hearing’s location.
The HRTO may hold a summary hearing on its own initiative where it is of the opinion that, based on the information provided in the HRTO application, there may not be a reasonable prospect of the application succeeding at a merits hearing. See Rule 19.1A.
For example, the HRTO may believe a summary hearing is warranted because the facts stated in the HRTO application, even if they are true, do not appear to support a Code violation. Or the HRTO may believe that it appears unlikely that there is or will be enough evidence available to support an applicant’s claim of a Code violation.
There is no process at the HRTO for an applicant to challenge a HRTO initiated decision that a summary hearing will take place, as the HRTO has already decided that a summary hearing will take place. However, you will be entitled to respond to and make submissions at the summary hearing itself.
As is the case with a respondent requested summary hearing, the HRTO will send all the parties a Notice of Summary Hearing. The Notice will indicate if the hearing will take place by teleconference or in person. If the hearing is by teleconference, instructions for participating in the teleconference will be provided. If an in-person hearing, the Notice will indicate the hearing location.
Instead, the HRTO will usually give specific directions about the steps the parties must take prior to or at the summary hearing in the Notice of Summary Hearing, including with respect to what documents, if any, must be provided and/or what witnesses, if any, may be required to attend at the summary hearing.
It is important to prepare for a summary hearing because if you lose then some or all your HRTO application will be dismissed.
At a summary hearing you do not normally lead evidence in a formal way through witnesses or documents as you would at a merit hearing. Instead, a summary hearing is a process in which you must identify the evidence you have (or that may be reasonably available to you) and make arguments as to why this evidence will show that the HRTO application has a reasonable prospect of succeeding at a merit hearing.
If some of your key evidence is contained in documents, it is a good idea to bring them to the summary hearing. These documents are not required to be disclosed to the other side, however, unless the HRTO specifically directs.
The disclosure of documents is not mandatory at the summary hearing stage but the HRTO may order such disclosure. Nevertheless, it is good practice to disclose your documents to the respondent and the HRTO in order that the HRTO and the respondent can properly prepare for the summary hearing.
If you believe a respondent has important documents which are necessary to show that your application has a reasonable prospect of success then you should point this out to the HRTO. This will be considered in determining whether your application should be permitted to proceed beyond the summary hearing stage.
As noted above, the HRTO will often issue CAD in advance of a summary hearing, setting out the hearing procedure and what documents or evidence would assist the HRTO. The CAD may also provide guidance about the issues that you as the applicant should be prepared to address at the summary hearing. For example, the HRTO might want to hear about how you intend to prove that the events complained about (e.g., a termination of employment) are related to or connected to a prohibited ground of discrimination (e.g., disability) under the Code.
A good way to prepare for a summary hearing is to review the relevant summary hearing case law (or jurisprudence) from the HRTO. HRTO decisions are published on the Canadian Legal Information Institute website. The leading case on summary hearings at the HRTO is Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII).
The purpose of the summary hearing is to give you an opportunity to explain how there is a reasonable prospect that your HRTO application can succeed at a merit hearing.
In some cases, the issue at the summary hearing may be whether the case, assuming all the allegations in the application are true, can succeed in law. In these cases, the focus will generally be on the legal analysis and whether what you have alleged 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 you can prove that your Code rights were violated.
A common reason for the HRTO to initiate or for a respondent to request a summary hearing occurs where it appears the HRTO application fails to identify any evidence showing a link between the alleged discriminatory treatment and the grounds of discrimination that you rely on.
In these cases, the focus of the summary hearing is whether you, the applicant, can show a link or connection between an event(s) (e.g. termination of employment or treatment in a restaurant or on public transportation) and the ground(s) (e.g. age, disability, sex, race, etc.) upon which they make the application. The issue in these types of summary hearings is whether you have any evidence from which it might be reasonably possible to show a link between the event(s) and the ground(s).
For example, your application may allege that you were denied service in a restaurant based on race. Your application may allege that a) there was a denial of service and b) that you are of a certain race. Both allegations may be true and not denied by the respondent.
However, in order to succeed you would require some evidence, other than your own personal beliefs or opinions, that a reason for the denial of service in the restaurant was linked to your race. See the Centre’s self-help guide on Understanding Discrimination and Harassment for more information about how to prove your case at the HRTO.
After a summary hearing is held, the HRTO will consider all the parties’ evidence and submissions and issue a decision. Once the decision is made, a copy of the decision will be sent to all the parties.
The HRTO may dismiss all an application, or just part of it, on the basis there is no reasonable prospect that the application, or that part, will succeed. Reasons must be provided by the HRTO to explain in writing any decision to dismiss an application, or any part of an application
Alternatively, the HRTO may decide not to dismiss all, or part, of the application and may provide further directions to the parties for the next stage in the processing of the HRTO application. In this case, reasons are not required to be provided by the HRTO. This means the HRTO does not have to explain in writing to the parties why it decided to go ahead with a merit hearing.
Yes. If the HRTO decided to dismiss a part or all your HRTO application after a summary hearing, then this is a HRTO final decision. You can request a reconsideration of a final decision under HRTO Rule 26. You should be aware that it can be very difficult to be successful on a reconsideration as there are very limited grounds under Rule 26 upon which to base your request.
See, for example, Macanovic v. Toronto Public Library, 2014 HRTO 1592 (CanLII), where the HRTO held that a request for reconsideration was simply an attempt by the applicant to re-argue the case already presented at the summary hearing. The request for reconsideration was denied.
You can find out more about reconsiderations in the Centre’s self-help guide at: Reconsiderations.