KPA Lawyers – July 6, 2018

If you have been named as a Respondent in an application filed at the Human Rights Tribunal of Ontario, it means you have been sued because someone (the Applicant) believes that you are responsible for a violation of Ontario’s Human Rights Code.

If you have received an application and notice of application directing you to file a response, that means you are a party to the application (a legal proceeding). You are called a respondent. A respondent has 35 days to file a response to the allegations in the application.

In such circumstances, you should contact a lawyer immediately. The following information contains a brief overview of the process involved at the Human Rights Tribunal:

What is the Human Rights Tribunal of Ontario?

The Human Rights Tribunal of Ontario (HRTO) resolves claims of discrimination and harassment brought under the Human Rights Code, a law that protects people in Ontario from discrimination and harassment in five areas:

• employment
• accommodation (housing)
• goods, services and facilities
• contracts
• membership in trade and vocational associations.

The Code prohibits discrimination and harassment on any of the following grounds:

• Race
• Colour
• Ancestry
• Place of origin
• Citizenship
• Ethnic origin
• Disability
• Creed
• Sex, including sexual harassment and pregnancy
• Sexual orientation
• Gender identity
• Gender expression
• Family status
• Marital status
• Age
• Receipt of public assistance (Applies only to claims about housing.)
• Record of offences (Applies only to claims about employment and to criminal convictions for which you have received a pardon.)

What if my response is incomplete or I don’t file a response?

If you receive notice of the application but do not file a response, you may not be given an opportunity to participate further in the process. You would still be responsible for complying with any orders to pay compensation.

If the response is not complete or more information is required, the HRTO may return the response form and tell you what information is missing. You will have 20 days to provide the missing information. Once the HRTO has your completed response, it will be delivered to the applicant and any other parties. If you do not respond to the HRTO’s request to complete the response, you may be bound by the information in the incomplete form. The HRTO will not consider requests to decide preliminary objections or issues before the complete response is filed. There are the four exceptions to this rule:

• If you say the court is already dealing with the same matter

• If you say the parties have settled the claim and the applicant signed a release

• If you claim the HRTO does not have jurisdiction over the matter because it is under federal jurisdiction.

• If you say the applicant made a complaint to the Ontario Human Rights Commission about the same matter before June 30, 2008 – the date when the OHRC stopped receiving complaints under the Code

What happens after my response is filed?

You will be asked on the application or response form if you are willing to try mediation. The goal of mediation is to help the parties reach an agreement (settlement) that resolves the issues in the application. The HRTO mediates disputes using an active listening approach. This means that both sides will have an opportunity to tell a HRTO mediator what happened and what they would like to see done about it. The mediator does not decide the application. He or she will consider what you say and look at the documents provided to help find a resolution that is satisfactory to both sides. You will need to sign a confidentiality agreement before the mediation.

If you settle the case in mediation, you and the other party will have to complete a settlement form. The HRTO will issue a letter to acknowledge the settlement and close the file.

If you can’t reach a settlement, the file will proceed and may be placed in queue to be scheduled for a hearing.

Mediation at the HRTO is a voluntary process. You are encouraged to mediate but if one or both of the parties is not interested in trying mediation, the application will go directly to a hearing.

A summary hearing may be ordered when it appears there may be no reasonable prospect that the application or a part of the application can succeed. The summary hearing gives the applicant an opportunity to explain the allegations contained in the application. There are a number of reasons why the HRTO may decide to hold a summary hearing. Two of the most common reasons are:

• Although the applicant may believe that the conduct of the respondent(s) is connected to a Code ground such as race or disability, it is not clear from the application that there is evidence available to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.

• The issue the applicant is raising does not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation

After hearing the applicant’s explanations, the HRTO adjudicator will decide whether the application can continue or whether some or all of it will be dismissed.

The HRTO may also schedule a preliminary hearing to decide other issues. For example, a preliminary hearing might be ordered when:

• it is not clear the HRTO has jurisdiction to decide the allegations or

• there is a question about whether another proceeding has already appropriately dealt with the substance of the application.

In a preliminary hearing, the HRTO adjudicator will usually hear arguments from both parties. The parties could also be asked to present evidence. The adjudicator will decide whether to dismiss the application or allow it to proceed.

How do hearings work?

A hearing at the HRTO is a legal proceeding. It provides an opportunity for the applicant and the respondent to present their positions, including facts and legal arguments, to the adjudicator hearing the case. The adjudicator is a neutral decision-maker with experience, knowledge and training in human rights law and issues.

You and the other party will receive a Notice of Hearing which gives the date and location of the hearing. You have 21 days after the notice of hearing is sent to provide any documents that are relevant to the application with the other party. At this stage, you don’t need to send copies of these documents to the HRTO but you do need to send the HRTO a Form 23. The form confirms that you have shared the documents with the other party. No later than 45 days before your hearing, you need to do two things:

• Send the other party a list of all witnesses, a statement of each witness’ intended evidence and a list of the documents you will present at the hearing. You do not need to send the other party copies of the documents themselves if you have already provided them with a copy.

• Send the HRTO your witness list, witness statements and copies of the documents you will use at the hearing.

Before the hearing begins, the adjudicator may ask the parties if they wish to try mediation/adjudication. If they agree and sign a consent, the adjudicator will work with them to resolve the dispute. Mediation/adjudication is like mediation except that if mediation is not successful the hearing will go ahead and the same adjudicator will decide the application. The adjudicator will not consider what was heard or said in the mediation when making a decision after the hearing.

When the hearing starts, the adjudicator will describe the hearing process, identify what he or she understands to be in dispute and may ask the parties whether they can agree on any facts or issues. The adjudicator controls the hearing. Because the adjudicator must remain neutral he or she cannot provide legal advice or tell a party how best to conduct its case. It is up to the applicant and the respondent to present evidence to support their positions. The adjudicator will often ask questions during the hearing. The adjudicator considers the evidence and the parties’ arguments and writes a decision explaining the result.

During the hearing, a party can question witnesses and introduce relevant documents as evidence. The parties make arguments about the facts and the law. Everyone participating in the hearing is expected to be courteous and respectful of the adjudicator and each other.

When and how will a decision be made?

Interim decisions may be issued before the hearing starts, during the hearing or after the hearing is completed but before a final decision is issued. Interim decisions:

• may decide questions about how the hearing will proceed (for example, a request to remove a party or a request for an interim remedy), or

• may decide part of the application (for example, whether some of the allegations are untimely).

A final decision decides the dispute between the parties. A final decision can be made:

• after a preliminary hearing, on issues like whether the application was filed in time or the issues were dealt with in another proceeding

• after hearing the evidence and submissions of the parties.

If the application is not successful it will be dismissed in the decision. If the adjudicator finds that discrimination or harassment has occurred, the application is allowed and, in the decision, the adjudicator may order remedies for the applicant. Examples of remedies are:

• monetary compensation (money)

• a non-monetary award (human rights training for the respondent’s employees, building an accessible entrance)

• an order to promote future compliance with the Code, (develop human rights policies, training)

If your hearing lasted 3 days or less, you should receive your final decision within 3 months. If your hearing lasted longer than 3 days, you should receive your final decision within 6 months. These timelines start after the last hearing date or the date when written submissions were due. All of the HRTO’s decisions are published on the Canadian Legal Information Institute website. Anyone can read them at no cost.

Contact Us

If you have been sued at the Human Rights Tribunal of Ontario, you should contact a lawyer immediately. The lawyers at KPA Lawyers have experience successfully defending applications at the HRTO.