What is a summary hearing?
A summary hearing is used to decide if an application should be dismissed because it has no reasonable prospect of success.
Rule 19A of the Human Rights Tribunal of Ontario’s (HRTO) Rules of Procedure sets out the rules for summary hearings.
What is the difference between a preliminary hearing, a summary hearing, and a merits hearing?
A preliminary hearing is any hearing scheduled before a merits hearing. For example, a preliminary hearing may be used to decide if an application should be dismissed because another proceeding has already appropriately dealt with the substance of the application (see Rule 22).
A summary hearing is a kind of preliminary hearing. It addresses whether the HRTO should dismiss all, or part of, an application because it has no reasonable prospect of success.
A merits hearing is a full hearing about whether the respondent(s) violated the Ontario Human Rights Code (Code). The HRTO hears evidence from witnesses. The parties make submissions. The HRTO applies the balance of probabilities test to decide if it is more likely than not that the respondent(s) violated the Code.
Why does the HRTO hold summary hearings?
There are two reasons why the HRTO may hold a summary hearing:
- The allegations in the application may appear not to fall under the Code or the HRTO’s jurisdiction. In this case, the summary hearing focuses on the legal basis of the applicant’s claim and whether there is any reasonable prospect that their factual allegations, if true, could be a Code violation.
- It may not be clear that the applicant has or could reasonably get evidence to prove the connection between the respondent’s alleged conduct and the grounds on which the applicant claims they were discriminated against. In this case, the summary hearing focuses on the evidence the applicant has, or reasonably could obtain, to prove the connection.
How are summary hearings held?
Typically, summary hearings take place online, using Zoom. When your summary hearing is scheduled, you will receive a Notice of Hearing with information on how to join and participate in the summary hearing.
What will the applicant be asked to talk about at a summary hearing?
The adjudicator may ask the applicant to clarify the allegations in their Application. They may ask the applicant to clarify why they think the actions of the respondent(s) could be a violation of the Code. They may also ask the applicant for more information about the witnesses and documents they would present at a merits hearing, to prove their case on a balance of probabilities.
What will respondents be asked to talk about at a summary hearing?
The adjudicator will ask the respondent(s) to provide their position on whether the HRTO should dismiss the Application because it has no reasonable prospect of success.
Does the HRTO hear evidence (e.g., witness testimony) at a summary hearing?
While the parties have a chance to speak and give oral submissions, there are no witnesses or testimony at a summary hearing. Generally, the parties do not submit documents at a summary hearing.
As an applicant, I have one of the characteristics (grounds) protected under the Code and have been treated badly by the respondent(s). Is that enough to succeed at a summary hearing?
No. For you to succeed at a summary hearing, the adjudicator has to decide that there is a reasonable prospect that you will be able to prove your case on a balance of probabilities at a merits hearing. At a merits hearing, you would need to have evidence to show that it is more likely than not that the adverse treatment you experienced is linked, at least in part, to the Code ground(s). For example, an applicant who alleges age discrimination must show that their age was at least one reason for the adverse treatment they experienced.
Also, an application cannot continue if the HRTO finds that it is outside the HRTO’s jurisdiction. For example, the HRTO only has jurisdiction over adverse treatment that occurred within one of the “social areas” covered by the Code:
- employment
- housing (“accommodation”)
- services, goods, or facilities
- contracts
- membership in a vocational association
The adjudicator may ask you (the applicant) why you think the treatment you experienced is connected to one of these social areas. If the adjudicator finds the HRTO does not have jurisdiction over the application, it will be dismissed.
As an applicant, the HRTO told me there is not a clear connection between the respondent’s alleged actions and the grounds in my Application. What does this mean?
If the HRTO told you this, an adjudicator reviewed your application and found there does not appear to be enough support for your belief, based on what you have filed so far, to find that your Code characteristics were a factor in the adverse treatment you experienced.
When considering whether your application has a reasonable prospect of success, the HRTO generally accepts any factual claims you make (e.g., about things that happened to you, things that people said). However, this does not mean accepting your assumptions or beliefs about the reason for the adverse treatment.
For example, while the adjudicator at a summary hearing would accept an applicant’s claim that they were fired as true, they would not automatically accept the applicant’s beliefs about why they were fired.
To continue to a merits hearing, an applicant must have or reasonably be able to obtain some evidence that could prove it is more likely than not that their protected grounds were a factor in the adverse treatment they experienced.
Although the parties do not submit evidence for summary hearings, the applicant should be ready to explain what witnesses and/or documents they would bring to a merits hearing. The applicant should also be ready to summarize and answer questions about what they would expect their witnesses to say and what is in their documents.
As a respondent, I have non-discriminatory reasons for the actions I took towards the applicant. Is that enough for me to succeed at a summary hearing?
No. An application will not be dismissed because the respondent has a different version of events and/or a different explanation about what happened.
In a summary hearing, the HRTO generally assumes the applicant’s version of events is true.
Summary hearings focus on:
- if the events alleged by the applicant could amount to a violation of the Code, and/or
- if the applicant has or reasonably could obtain any evidence that connects the alleged events to a ground of discrimination protected under the Code.
Summary hearings usually focus on the applicant’s proposed evidence. However, the respondent’s version of events may be considered if the facts are not in dispute or if there is clear evidence that a fact is true.
How long will the summary hearing take?
Summary hearings are normally scheduled for three hours. However, most summary hearings do not require this much time.
The adjudicator will manage the timing of the parties’ submissions at the summary hearing.
I know the HRTO does not hear evidence at a summary hearing, but can I submit a statement or other documents for the adjudicator to look at?
While it is not required or expected, a party may make written submissions summarizing the legal principles and how they apply to the issues that will be covered at the summary hearing. These written submissions would supplement their oral submissions at the summary hearing.
The HRTO discourages parties from filing documents, other than written submissions, for summary hearings.
If you wish to file additional documents, you must submit the documents to the HRTO and the other parties. You must follow the instructions in the letter or Case Assessment Direction that directed the summary hearing to be scheduled.
Typically, a party must submit any written submissions or other materials for a summary hearing within 28 days of the date on the letter or Case Assessment Direction that directed the summary hearing to be scheduled. The parties should carefully read the letter or Case Assessment Direction to confirm the timelines.
Can I submit copies of case law?
If you want the HRTO to consider any case law, you must file a list of the cases and include the citation and link to the case on the CanLII website. For any listed case which is not on CanLII, you must provide a PDF copy of the document you want to rely on.
Typically, case law must be filed within 28 days of the date of the letter or Case Assessment Direction that directed the summary hearing to be scheduled. The parties should carefully read the letter or Case Assessment Direction to confirm the timelines.
Where can I find more information about summary hearings?
For more information about summary hearings, see:
- The HRTO’s Practice Direction on Summary Hearing Requests
- Rule 19A of the HRTO’s Rules of Procedure, which sets out the rules for summary hearings
- The HRTO’s Hearings webpage
- HRTO decisions, including summary hearing decisions, available on the Canadian Legal Information Institute (CanLII) website.
Can I request an accommodation so I can participate in (or more fully participate in) the summary hearing?
Yes. Parties and their representatives are entitled to accommodations for any Code-related needs. For more information, see Tribunals Ontario’s Accessibility and Accommodation Policy. If an accommodation is required, contact the HRTO as soon as possible.
Can I get legal help?
HRTO staff and adjudicators cannot provide legal advice or assistance.
If an applicant wants legal help or advice, they may contact the Human Rights Legal Support Centre (HRLSC).
Contact:
Human Rights Legal Support Centre
180 Dundas Street West, 8th Floor
Toronto, ON M7A 0A1
Phone:
Toll free: 1-866-625-5179
Toronto: 416-597-4900
TTY: 711
Fax:
416-597-4901
Toll free: 1-866-625-5180