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.
Once you have received the Tribunal’s decision, you should review it carefully. If you decide to apply for judicial review, you should immediately collect and organize all your documents that were used in your Tribunal proceeding. As noted above, it is a good idea to seek legal advice before deciding to file an application for judicial review.
Step 1: Complete Your Notice of Application for Judicial Review
An application for judicial review to the Divisional Court under the JRPA must be commenced by Notice of Application to the Divisional Court (Form 68A). If you are the person applying for a judicial review, you are called the “applicant” [the person and/or organisations you are applying against are called the “respondent(s)”. Also, the Tribunal itself is entitled to be heard in a judicial review application as a respondent.
You must get the Notice of Application issued at the court office in order to start the proceeding. This means that you must present the application to the court staff and pay the prescribed fee. The court office will date it, sign it, issue a court file number and stamp it with a court seal to verify that it has been issued by the court.
The Notice of Application must state that the application is to be heard on a date to be fixed by the court registrar at the place of hearing (i.e., the place where the Divisional Court is sitting).
There are three parts to an application for judicial review that must be completed by the applicant – i) what the applicant requests as an order from the Court; ii) what the grounds for the application are; and iii) what documentary evidence will be used at the hearing of the application.
The Order Sought
In general, the applicant seeks that the court set aside the Tribunal order and allow the application for judicial review. The applicant may also request that the matter be sent back to the Tribunal for a re-hearing before a different Tribunal member. Finally the applicant may request their “costs” of the application (i.e., recovering a portion the amount that has been spent by the applicant to pay a lawyer to conduct the application before the court).
The Grounds for Review
The grounds are the reasons for why the applicant believes that the Tribunal’s decision should be set aside. In general, the Court will only set aside the Tribunal’s decision if you can show that the Tribunal made at least one (1) of the following kinds of legal errors:
- Made an “error of law” such as interpreting a section(s) of the Code incorrectly;
- Made a finding of fact based on no evidence or that is otherwise unreasonable in light of all the evidence;
- Exercised its discretion in an unreasonable way, as, for example, by exercising it arbitrarily, in bad faith, or for an improper purpose;
- Based its decision entirely or predominantly on irrelevant factors, or failed to take statutory requirements into account; or
- Breached the rules of natural justice and procedural fairness, having regard to all of the circumstances. (Note that the Tribunal has a duty to hear the evidence and to offer the parties the opportunity to make submissions on the appropriate outcome, including remedy, in light of the evidence. This is referred to as “natural justice” or the “duty of procedural fairness”).
The Documentary Evidence
In general, the Divisional Court can only review the Tribunal’s decision based on the evidence before the Tribunal. This evidence is compiled into a “record of proceedings”, which is prepared, served and filed by the Tribunal (not the applicant) after the application for judicial review is served on all the parties. The content of the record is set out at section 20 of the Statutory Powers Procedure Act and includes:
- Application at the Tribunal (Form 1);
- Tribunal’s notice of the hearing;
- Any interim or interlocutory orders;
- All of the documentary evidence filed with the Tribunal (e.g. all affidavits, letters, reports, e-mails, other correspondence, etc.)
- Any transcript of the oral evidence given at the hearing; and
- The Decision of the Tribunal and the reasons given.
Any other documentary evidence is generally not permitted to be used at a judicial review application. This is because the Court is very strict about parties trying to add to the record of proceedings in the judicial review hearing. Often parties may attempt to file sworn statements or “affidavits” with the Court. Affidavits, whether from an applicant or a respondent are generally not allowed by the Court.
An affidavit is a written statement of facts within your personal knowledge which you have sworn or affirmed to be true before a Notary Public or a Commissioner for Taking Affidavits. There are some rare and exceptional circumstances where affidavit evidence may be admissible as, for example, to show that there was breach of procedural fairness that is not apparent from the record of the proceedings.
The law on the use of affidavits on applications for judicial review is complicated and you should consult a lawyer who may help you decide whether your application is one in which affidavit evidence may be appropriate. The leading Ontario case is Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A).
Generally, your affidavit should only contain information (i.e., evidence) that the Tribunal considered when it made its decision. You cannot include evidence that the Tribunal did not see or hear, such as new information that you have discovered since your Tribunal hearing.
Remember that your affidavit is not a legal argument (you will present your legal argument in a separate document called a “factum” which is discussed later in this guidebook). Your affidavit would set out the relevant facts and explains what happened in the Tribunal hearing.
You should attach to your affidavit any important documents you refer to in the affidavit or that are relevant to your case. The documents have to be numbered and are called “exhibits”. Your affidavit is a very important document and must be carefully prepared. It is a serious offence to swear an affidavit that contains information you know is false.
Step 2: Pay the fee to have your completed Notice of Application issued by the court registrar
For a current list of fees, go to www.e-laws.gov.on.ca and then:
- Choose your language;
- Click on “A” and then select “Administration of Justice Act.”,
- Click on Regulations Under the Act; and
- Click on “Superior Court of Justice and Court of Appeal – Fees.”
You should contact the local court office to confirm the current fees.
If you are not able to afford the court fee, you may be eligible to have fees waived. Ask the registry staff for instructions on how to apply to the court to have the fee waived. For more information on fee waiver, go to www.attorneygeneral.jus.gov.on.ca and then:
- Click on your preferred language,
- Click on “Court Services.”; and
- Scroll down to “Court Fees” and click on “A Guide to Fee Waiver Requests.”
Once you have paid the filing fees (or received a fee waiver certificate), the registrar will issue your application for judicial review by:
- Opening a file;
- Giving your case a file number (this is the permanent identification number for your case); and
- Stamping and returning copies of the application to you.
Step 3: Serve a copy of your Notice of Application
Once the Court has issued your Notice of Application for Judicial Review (Form 68A), you must deliver the Notice of Application to the respondents and the Tribunal with it. This is called “service”. The Attorney General of Ontario must also be served because section 9(4) of the JRPA requires this. You must serve your Notice of Application at least ten (10) days before the hearing date if you are serving the respondent in Ontario. If you are serving the respondent outside Ontario, you must do so at least twenty (20) days before the hearing date.
An application for judicial review is not an “originating process” under the Rules and therefore does not need to be served by personal service or an alternative to personal service [see Rule 1.03(1)]. This means that if the other party has a lawyer, you can serve by other methods, including facsimile and courier (see Rule 16 of the Rules for more information regarding methods of service that are applicable).
Serving the Tribunal
You can serve your application on the Tribunal by sending a copy to the Tribunal’s legal staff who will accept service on behalf of the Tribunal. The Tribunal’s address for service is:
Social Justice Tribunals of Ontario
Legal Services
655 Bay Street, 14th Floor
Toronto, ON
M7A 2A3
Fax: 416-326-5135
Serving the Attorney General of Ontario
You can serve your application on the Attorney General by sending a copy to the Crown Law Office (Civil Law) of the Ministry of the Attorney General. The Attorney General’s address for service is:
Attorney General of Ontario
Ministry of the Attorney General
Crown Law Office – Civil
720 Bay Street, 8th Floor
Toronto, ON
M5G 2K1
Tel: 416-326-4008
Fax: 416-326-4181
Step 4: File your application with the Divisional Court
Once your application has been served on the respondents, the Tribunal and the Attorney General, you must file your application with the court registrar with proof of service. You will need to prepare “affidavits of service” to show the court registrar that you have served the other parties properly in accordance with Rule 16 of the Rules. The form that you will need to fill out is called the Affidavit of Service (Form 16B).