New HRTO Practice Direction Provides Guidance on Rule 13 Jurisdictional Dismissals

New HRTO Practice Direction Provides Guidance on Rule 13 Jurisdictional Dismissals

The Human Rights Tribunal of Ontario (HRTO) has released a new Practice Direction that addresses how the HRTO determines if an application is outside its jurisdiction and whether it should be dismissed on that basis. The HRTO’s jurisdiction— or decision-making authority— is limited to the enforcement of the Human Rights Code (Code). Rule 13 of the HRTO’s Rules of Procedure allows the HRTO to dismiss all or part of an application that is outside its jurisdiction.

Jurisdictional Issue: Connecting the Ground of Discrimination to the Adverse Treatment

A common jurisdictional issue identified by the HRTO in the Practice Direction involves events set out in an application that appear not to be linked to grounds of discrimination found in the Code. To avoid this issue, applicants must provide sufficient detail in their applications to establish this link.

This means an applicant must provide some factual basis beyond a bald assertion linking their ground(s) to action(s) taken by a respondent and provide an explanation as to why they think that these actions were discriminatory. It is not enough that the treatment that an applicant received was simply unfair.

An applicant must provide some detail linking the unfairness experienced, in whole or in part, to one of the protected grounds set in the Code (for example: race, disability, sex, etc.). In other words, an applicant must provide some detail about their enumerated ground(s) and explain why they believe that the negative treatment they experienced was connected to their enumerated ground(s) of discrimination.

An application which fails to do so may be found to be outside of the HRTO’s jurisdiction.

Other Jurisdictional Issues:

Additionally, some other examples of common jurisdictional issues identified by the HRTO in the Practice Direction include:

• Listing federally regulated employer or service provider as respondents or including events not connected to Ontario. The Code is a provincial statute and only covers events that occur in Ontario and entities that do not fall within federal jurisdiction.
• Filing applications after the one year limitation period set out in the Code.
• An applicant challenging an unfavourable decision from another tribunal or from a court or labour arbitrator.
• Describing events in an application that do not fall within one of the social areas set out in the Code: services, housing, contracts, employment, or membership in a vocational association.
• Not setting out the elements of reprisal under the Code in an application. Reprisal requires an intentional action, or threat of such an action, made in response to the applicant claiming or attempting to enforce a right under the Code.

Procedure for Determining Jurisdictional Issues

When the HRTO receives an application, it will review it and determine if there are any jurisdictional issues. This review can also take place at any time during the HRTO’s process on the HRTO’s own initiative or at the request of the respondent.

Where it appears that a matter may be outside of its jurisdiction, the HRTO will notify the applicant of its concerns. The HRTO may do so by way of a Notice of Intent to Dismiss (NOID). In the NOID, the HRTO will provide:

• Notice that the HRTO has identified that the application may be outside of its jurisdiction;
• A brief summary of the jurisdictional issue(s) identified by the HRTO;
• Notice that the applicant must file written submissions on the identified issue by a specific deadline; and
• Notice that the HRTO will consider the submissions and then decide whether the application should be dismissed as being outside of the HRTO’s jurisdiction.

In some cases, in accordance with Rule 1.7, the HRTO may also request that:

• The applicant provides evidence to support all or part of their application; and
• The respondent provides information and submissions on a specific issue, where the respondent has already been served with the application.

We Can Help

If you are an applicant who has received notice from the HRTO about a potential jurisdictional issue with your application, contact the Human Rights Legal Support Centre. We can provide you with advice on how to respond to the HRTO.