The Respondent’s Reply to an Application

The Human Rights Tribunal of Ontario’s (HRTO) adjudication process begins when you file an Application (Form 1) at the HRTO. The HRTO then delivers the application to the respondent named in your application. The respondent is then required, in most cases, to complete and file a Response (Form 2) to the application.

The purpose of a Response (Form 2) is to permit a respondent to respond to the allegations of discrimination and/or harassment under the Human Rights Code (Code) and other information contained in your application. See Rule 8 of the HRTO Rules of Procedure (HRTO *Rules) for more procedural information about the Response (Form 2). See also the HRTO’s *Respondent’s Guide (May 2016), which can be found here: (insert hyperlink)

A respondent, for example, may set out what facts in an application they agree or disagree with and may also include additional facts, issues or other information a respondent believes is necessary in order to fully respond to the application. A respondent may also raise new matters or issues that were not originally included in your application.

Finally, in some cases, a Response (Form 2) may include a request for an early dismissal of an application (e.g., a delay in filing your application or a lack of HRTO jurisdiction to consider the application) or a request for a deferral of an application (e.g., because there may be an outstanding union grievance that is similar to the substance of your HRTO application).

Whatever the situation, you should always carefully review the Response (Form 2) when you receive it from the HRTO in order to decide whether you need to prepare, serve an file an applicant’s Reply (Form 3) to whatever matters the Response (Form 2) may have included. When you receive the Response (Form 2) from the HRTO, you will also get a Delivery of Response notice which contains important information about the HRTO’s deadline to file your Reply (Form 3).

You can find out more information about a Reply (Form 3) in our self-help guide called The Applicant’s Reply (Form 3) found here.

Yes. In order to respond to an application, a respondent must file, unless the HRTO orders otherwise, a Response (Form 2) with the HRTO no later than thirty-five (35) days after a copy of the application was sent to the respondent by the HRTO. See HRTO Rule 8.1.

You should be aware that it is relatively common for a respondent to make a request for an extension of time to prepare and file their Response (Form 2) at the HRTO. If so, the respondent must advise you of this request for an extension of time and you are entitled to make submissions about the respondent’s request.

The HRTO will consider the parties submissions and decide about whether to grant the request for an extension of time and, if granted, how long the extension of time will be

The Response is not normally delivered to the other parties by the respondent. After the respondent files their Response (Form 2), the HRTO delivers the Response (Form 2) to you in the same way that the HRTO delivers your application to the respondent. There may be, in some cases, a significant amount of time that passes between the Response (Form 2) being filed with the HRTO and when you receive a copy from the HRTO.

No, not in every case. Generally, the HRTO requires a respondent to fill out the entire Response (Form 2) and will not consider any respondent requests to decide any preliminary objections or issues until a full and complete Response (Form 2) is filed at the HRTO.

There are five (5) exceptions to this general rule. Whether any of these five (5) exceptions may apply to your case will depend on the specific facts and information included in your application.

The five (5) exceptions are where a respondent’s Response (Form 2) claims that:

1. a civil court is already dealing with the same matter as in your HRTO application;
2. the parties have already settled your HRTO application and you signed a release;
3. the HRTO does not have jurisdiction over your HRTO application because it is under federal jurisdiction;
4. you made a complaint to the Ontario Human Rights Commission (OHRC) about the same matter as in your HRTO application before June 30, 2008 (i.e., the date when the OHRC stopped receiving complaints under the Code); or
5. there is another ongoing legal proceeding that is a grievance or **arbitration brought under a collective agreement. See HRTO Rule 8.2.1.

In any of these five (5) situations, a respondent need not fully respond to your allegations in your application. A respondent must, however, attach to their Response (Form 2) either a copy of the applicable release, or statement of claim or court decision, or complaint filed with the OHRC or its decision, or a copy of the document which commenced your grievance and confirm that the grievance or arbitration is ongoing.

A respondent must also include with their Response (Form 2) a complete argument in support of their position that your application should be dismissed early (in the case of #1- 4 above) or deferred (in the case of #5 above).

Finally, despite these five (5) exceptions to the rule that a respondent must prepare and file a full Response (Form 2), the HRTO may still direct a respondent to prepare and file a complete Response (Form 2) if it considers it appropriate to do so. See HRTO Rule 8.2.

In section 8 of the Response (Form 2), a respondent may request that your application be deferred (i.e., postponed) if your HRTO application is already a part of another type of ongoing legal proceeding.

For example, you may have an ongoing union grievance or arbitration, a claim before the Workplace Safety and Insurance Board, a claim at the Ministry of Labour under the Employment Standards Act or a matter before the Landlord and Tenant Board.

Where the other ongoing legal proceeding is a grievance or arbitration under a collective agreement, a respondent can ask for a deferral of your application without fully completing the Response (Form 2). Where the other ongoing legal proceeding is not a grievance or arbitration under a collective agreement, a respondent may still ask the HRTO to defer your application, but the respondent must fully complete the Response (Form 2).

In either case, when the HRTO receives the Response (Form 2) and a request to defer your application, the respondent’s request to defer should include all arguments to support the respondent’s position that your application should be deferred until the other legal proceeding has concluded.

The HRTO may request submissions from both you and any other parties about whether to grant the request to defer your application.

You can find more information about deferrals at the HRTO in our self-help guide called Deferral of an Application found here.

A respondent does not always have to complete a full Response (Form 2) to your application if the respondent makes a request, in section 6 of the Response (Form 2), for early dismissal of your application. As explained above, there are four (4) situations, where this may happen:

In all other cases of early dismissal, while a respondent may still ask the HRTO for early dismissal of your application, the respondent must fully complete and file a Response (Form 2). These cases include where a respondent requests early dismissal of your application, in the Response (Form 2):

• if there has been another legal proceeding that has already appropriately dealt with the substance of your HRTO application;
• if a respondent claims your application was filed late and outside the Code’s one (1) year limitation period;
• if a respondent claims that your application has no reasonable prospect of success and requests a summary hearing under Rule 19A of the HRTO Rules..

When the HRTO receives the Response (Form 2), the HRTO may ask you for your submissions about the respondent’s request for early dismissal of your application. After it hears from all parties, the HRTO will decide whether to dismiss the application at this stage of the proceedings. You will be provided the opportunity to make submissions prior to any HRTO decision about an early dismissal of your application.

If the HRTO decides it is not appropriate to dismiss your application at this early stage, the respondent will then be required to fully complete and submit a Response (Form 2).

When a respondent must fully complete a Response (Form 2), a respondent must provide the information requested in each section of the Form 2, respond to each allegation set out in your application and include any additional facts and allegations on which the respondent relies. The Response (Form 2) must include the following information:

• whether any exemptions under the Code apply (section 10);
• when the respondent became aware of the allegations in the application, how they responded and what was the outcome (section 11);
• whether the respondent has a human rights policy, a complaint process, whether you made a complaint and, if so, how the respondent dealt with your complaint (section 13);
• whether the respondent agrees to mediation (section 14);
• what important documents the respondent, you or a third party may have (sections 15, 16 and 17);
• a confidential list of the respondent’s witnesses (section 18)
• any other important information the HRTO should know (section 19); and
• a checklist of the required documents (section 20)

If your application alleges discrimination in *employment due to disability, a respondent must also advise, in section 12 of the Response (Form 2):

• If they knew about your disability related needs before getting your application;
• what are the requirements or essential duties of your position;
• whether they have a written policy or other documentation that describes your job requirements; and
• whether you were unable to perform your job’s requirements because of your disability.

You should read the Response (Form 2) very carefully to be best able to prepare and submit your Reply (Form 3), if necessary, to any new matters that are raised in the Response (Form 2).

When a respondent is required to fully complete a Response (Form 2) and the Response (Form 2) is not complete or more information is required, the HRTO may return the Response (Form 2) and tell a respondent what information is missing. A respondent has twenty (20) days to provide the HRTO with the missing information.

If a respondent does not respond to the HRTO’s request to complete the Response (Form 2), a respondent may be bound by the information in their incomplete Response (Form 2).

When the HRTO receives a completed Response (Form 2), it will be delivered to you, and to any other parties to the application.

If a Response (Form 2) is not filed with the HRTO, a respondent may not be given an opportunity to participate further in the HRTO process.

This is a matter of the HRTO’s discretion which it decides on a case by case basis as to what would be most appropriate. The HRTO has broad powers to determine how best to proceed in any application before it, including what to do in the event it does not receive a Response (Form 2). The HRTO has several options available to it when no Response (Form 2) is filed. Under Rule 5.5 of the HRTO Rules where an application is delivered to a respondent who does not respond to the application, the HRTO may:

• deem the respondent to have accepted all the allegations in the application;
• proceed to deal with the application without further notice to the respondent;
• deem the respondent to have waived all rights with respect to further notice or participation in the proceeding; or
• decide the matter based only on the material before the HRTO.

In some cases, a respondent may not file a Response (Form 2) through no fault of their own. For example, your application may not have properly come to the attention of a respondent for some good reason and a respondent may not be reasonably aware that they were required to file a Response (Form 2). If this is the case, the HRTO may decide to give a respondent the opportunity to file its Response (Form 2) to your application if it would be reasonable, fair and just to do so.

A Response (Form 2) that is accepted by the HRTO will be sent by the HRTO to you, to any trade union, occupational or professional association identified in your application and, to any other respondent or affected person identified in the Response (Form 2). With the Response, the HRTO will send you a Delivery of Response notice which includes the deadline to file a Reply (Form 3) and to respond to any issues identified by the HRTO.

You should carefully review the HRTO’s Delivery of Response notice and the Response (Form 2) when you receive them from the HRTO in order to decide whether you need to file a Reply (Form 3) or respond to any issues identified by the HRTO in its Delivery of Response notice.

You can find out more information about an applicant’s Reply (Form 3) in our guide called Applicant’s Reply (Form 3).

The oral and documentary evidence presented at a hearing is assessed and weighed by the HRTO based on both its credibility and its reliability. That is, the HRTO assesses the sincerity of testimony (i.e. credibility) as well as the witness’s ability to accurately observe, recall and recount the events at issue (i.e. reliability).

The HRTO will not rely on the evidence of a witness who is not believable. But even where a witness is credible and sincere, their evidence may be unreliable if, for example, there are problems with their memory, or they were not able to closely observe the events at issue.

Findings about the credibility and reliability of evidence are a major element in many discrimination cases, especially when there is conflicting evidence before the HRTO about whether or how an action or event occurred.

In determining issues of credibility, the HRTO often cites the following excerpt from Faryna v. Chorny, (1952) 2 D.L.R. 354 (B.C.C.A.) at pages 356-357:

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”

This is very important to understand and appreciate. Most cases decided at the HRTO depend on findings of fact which, in turn, often depend on the HRTO’s assessments of the witnesses’ credibility.

Often, respondents have the information applicants need to determine why the respondents acted as they did as, for example, in firing an employee or changing an employee’s conditions of work. As discussed above, the respondent’s evidence will be used by the HRTO in determining what happened and why.

The HRTO Rules allow applicants to request documentary evidence in the respondent’s possession before the hearing. This is an important part of preparing for your hearing.

For information on how an applicant can obtain information and records in the respondent’s possession, see the HRLSC’s Applicant’s Guide to Hearings and Disclosure of Documents and Witnesses.

No. An applicant does not need to prove that discrimination was the only, or even the primary, factor in the negative treatment by a respondent. It is enough if one of the reasons for the negative treatment is connected to a Code ground.

Therefore, even if there are several reasons for the negative treatment, your discrimination claim will be accepted by the HRTO if you can show through your evidence that a Code-protected personal characteristic was one of the factors in that treatment.

For example, if the HRTO found that your age and a corporate reorganization were both factors in being terminated from your job, that would mean that your age was a factor in your termination. That would be enough to prove discrimination under the Code.

No, except in one situation under the Code, namely, reprisal.

You do not have to prove that the respondent intended to discriminate against you. The focus of the HRTO’s enquiry is on whether the respondent’s actions had a negative effect on you and whether a prohibited ground of discrimination was a factor in that treatment.

However, there is one type of Code breach that does involve proving the intention of a respondent. Section 8 of the Code prohibits reprisal against a person for claiming or enforcing their rights under the Code.

This means that an applicant must prove that a respondent engaged in an action which was intended as a retaliation for claiming or enforcing a Code right. For a discussion of section 8 and reprisal see Noble v. York University, 2010 HRTO 878 (CanLII).

An applicant at the HRTO is required to prove that discrimination occurred. This means you must be able to prove that it is more likely than not that the protected personal characteristic was a factor in the negative treatment you experienced.

This is called the burden of proof. In civil law cases, including HRTO cases, this means that you must prove your case on a balance of probabilities. This is sometimes described as “50% plus 1” probability. This contrasts with criminal law cases, where the burden of proof is beyond a reasonable doubt.

The HRTO will examine the relevant evidence presented at the hearing by the applicant and the respondent to determine whether it is more likely than not that a violation of the Code occurred. Both the applicant and the respondent are responsible for bringing forward evidence at the hearing to prove their position.

The applicant has the initial responsibility of establishing a basis for a finding of discrimination. This is called making out a prima facie case of discrimination. This means that an applicant at a hearing must produce their evidence first and must produce enough evidence which, if believed, would support a finding of discrimination.

If the applicant does this, then the respondent must present evidence to challenge the applicant’s evidence. The respondent will bring evidence to the hearing to show its actions were not discriminatory or to establish a statutory defence under the Code which justifies the discrimination (discussed below).

An example is helpful. If your application alleges that disability was a factor in the termination of your employment, there are three (3) initial components of your claim that need to be proved:

1. That you have a disability;
2. That you were fired, and other employees were not fired (i.e. negative differential treatment); and
3. That your disability was at least one of the reasons why you were fired.

With respect to the question of why you were fired, what you require is evidence of a connection between the termination and your disability. Your disability must have been a factor in the decision to end your employment.

Establishing only that you were terminated, and you are disabled may not be enough to make out your prima facie case. If that was enough, then every person with a disability who loses their job would be able to prove discrimination, even if the employer terminated all employees in the same position, including employees without disabilities.

In order to prove discrimination, an applicant’s evidence must establish the basis upon which the HRTO could find that the applicant was adversely impacted due, at least in part, to a prohibited ground under the Code.

If an applicant is only able to prove #1 and #2 above, then the applicant has not made out a prima facie case and the HRTO may dismiss the application.

A respondent can defend against a discrimination allegation in two (2) main ways – by establishing a credible, non-discriminatory explanation for their actions, or relying on a statutory defense under the Code that justifies the discrimination.

An example of the first kind – non-discriminatory explanation – occurs where, for example, a respondent presents enough evidence to show that the reason for the termination of an applicant’s employment was poor performance or an organizational restructuring unconnected to the applicant’s protected personal characteristic under the Code. In this case, the HRTO may accept the respondent’s explanation for the termination of employment as being non-discriminatory.

An example of the second kind – a statutory defense – would be a licenced bar that relied on the Liquor Licence Act to defend itself in an HRTO application involving under-age consumption of alcohol. If an eighteen (18) year old customer brought an HRTO application against a restaurant claiming discrimination after being refused alcohol on the basis of age, the restaurant could rely on section 20(2) of the Code.

Section 20(2) states that the minimum drinking age of nineteen years, as set out in the Liquor Licence Act, does not violate the right to equal treatment based on age under section 1 of the Code. Section 20(2) is a statutory defense to the claim of discrimination.

Other examples of statutory defences include sections 24 and 25 of the Code which set out various exceptions to claims of employment- related discrimination. The statutory defences available under the Code are diverse but generally recognize other societal values that outweigh the right to equal treatment in some very specific and limited circumstances.

A respondent can defend against an allegation of harassment by establishing a credible, non-discriminatory explanation for their actions. There are no statutory defenses available under the Code that justify Code-based harassment.

Defenses to claims of harassment under the Code tend to fall into one of two categories. First, that the conduct alleged to be harassment, while potentially annoying or bothersome, does not meet the definition of harassment within the meaning of the Code (see section 10).

For example, there may be a personality conflict or strong disagreements between an older employer and a younger employee that cause friction and stress in the workplace. However, this does not necessarily mean that the younger employer’s conduct is age-based harassment under the Code.

Second, the conduct in question may be harassment but the harassment is not Code related. This means that a reason for the harassment is not connected to a ground of discrimination, such as age, race, disability or sex.

For example, if an employee is faced with conduct that may be reasonably seen as harassment in the workplace, an employer may claim that it has nothing to do with the employee’s disability or any other Code prohibited grounds of discrimination.

The employer’s conduct may be unfair and wrong, but that conduct may not be connected to the Code. There may be, in such cases, another legal forum to deal with the harassment at work, such as a tort claim in the courts, a grievance under a collective agreement, or a complaint under the Occupational Health and Safety Act (OHSA).

In the courts, an example is the tort of intentional infliction of emotional distress. This allows individuals to claim severe emotional distress caused by another individual who intentionally or recklessly inflicted this distress on a person by behaving in an extreme and outrageous way.

The OHSA sets out the rights and duties for the health and safety of all individuals in the workplace, including rights and duties related to workplace violence and harassment. For example, offensive or intimidating comments or jokes, bullying or aggressive behaviour and displaying or circulating offensive pictures or materials are some examples of workplace harassment that may be a breach of the OHSA.