(Disponible en français)
This Practice Direction provides general information only. It is not a rule within the meaning of the Human Rights Tribunal of Ontario’s (HRTO) Rules of Procedure.
Rule 13 of the HRTO's Rules of Procedure addresses how the HRTO raises questions about its jurisdiction (or power to decide a case) and dismisses Applications that are found to be outside of the HRTO’s jurisdiction. The HRTO may vary its approach to addressing jurisdictional matters where it considers appropriate (Rule A4.2).
An Application will only be dismissed at a preliminary stage based solely on the written record as outside of jurisdiction if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction.
The HRTO resolves claims of discrimination and harassment brought under the Human Rights Code (the Code). The Code prohibits conduct that discriminates against people based on a protected ground (e.g., race, sex, disability) within one of the social areas defined in the Code (e.g., housing/accommodation, employment, goods and services).
The HRTO’s authority is limited to the enforcement of the Code. This means that even if an applicant has been treated unfairly, the HRTO may not have jurisdiction over (the power to hear and decide) their claim.
All Applications are reviewed for jurisdiction by an adjudicator at least once during the pleadings stage (when the Application and Response are filed and shared). This can occur before the Application is delivered to the respondent, after the Response has been filed, or both, depending on the types of jurisdictional issues noted by the HRTO at different stages.
When an adjudicator identifies a jurisdictional issue, the HRTO will issue a letter titled “Notice of Intent to Dismiss” (NOID). The NOID may be sent as a standalone letter, or it may be included in the letter delivering the Response to the applicant (“Delivery of Response and Notice of Intent to Dismiss”). In other cases, the NOID may be incorporated into an Endorsement or Case Assessment Direction sent by an adjudicator.
If the HRTO has already delivered the Application to the respondent(s) at the time of the NOID, the NOID is sent to all the parties. If the HRTO has not yet delivered the Application to the respondent, the NOID is sent only to the applicant.
The NOID does the following:
Where the Application has already been delivered to the respondent(s), and so all the parties receive the NOID, the parties other than the applicant are permitted (but not typically required) to provide submissions in response to the NOID.
In some cases, in accordance with Rule 1.7, the HRTO may also request that the applicant provide evidence to support all or part of their Application. When evidence is required from an applicant at the stage of jurisdictional review, the HRTO accepts the evidence as true for the purposes of considering its jurisdiction. Under limited circumstances, the HRTO may also direct other parties to provide submissions.
If the applicant does not file submissions by the deadline in the NOID, and does not otherwise communicate with the HRTO, this may cause the HRTO to consider whether the applicant has abandoned the Application.
If after reviewing the submissions an adjudicator determines that the matter is outside of the HRTO’s jurisdiction, the adjudicator will issue a written decision dismissing the Application.
Where the HRTO decides not to dismiss the Application based on the written record, the parties will be informed that the Application will continue through the HRTO’s process.
As advised in the NOID, a decision to allow the matter to continue is not a final decision regarding the jurisdiction issue(s) and the same issue(s), or other jurisdictional issues, may be raised again later.
In some cases, an Application which is not dismissed based on the written record may next be directed to a summary hearing (Under Rule 19A) or a preliminary hearing. At a summary or preliminary hearing, the same jurisdictional issue(s) raised in the NOID may be further considered by the HRTO.
Common examples of Applications that have been found to be outside the HRTO’s jurisdiction include (but are not limited to):
Another common jurisdictional problem is that the Application does not plead any facts which could constitute discrimination under the Code. In some cases, this is because the Application does not explain how the respondent did something, or failed to do something, that harmed the applicant or negatively affected their interests. In other cases, the Application does not explain how the applicant’s Code grounds may have been a factor in the adverse conduct of the respondent.