Practice Direction on Jurisdiction

(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 jurisdictional dismissals. The HRTO may vary its approach to addressing jurisdictional matters where it considers appropriate (Rule A4.2).

General

The HRTO resolves claims of discrimination and harassment brought under the Human Rights Code (“Code”). The Code prohibits actions that discriminate against people based on a protected ground in a protected social area. 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 the legal authority to adjudicate their claim.

In the past, the HRTO would generally dismiss applications early in the process where it was found to be “plain and obvious” that the application was outside of its jurisdiction. Since January 2021, the HRTO determines jurisdictional issues on a balance of probabilities.

What is Outside of the HRTO’s Jurisdiction?

A common jurisdictional issue that the HRTO reviews is that the application fails to link the applicant’s Code ground(s) to the adverse treatment that the applicant received.

For a matter to fall within the HRTO’s jurisdiction, an applicant must provide some factual basis beyond a bald assertion linking their ground(s) to action(s) taken by the respondent and provide an explanation as to why they think that these actions were discriminatory. It is not enough that the treatment that the applicant received was unfair.

An applicant cannot just say that they have been discriminated against and were treated badly by the respondent. They must provide some detail linking the unfairness experienced, in whole or in part, to one of the protected grounds set in the Code (e.g. race, disability, sex, etc.). In other words, they must provide some detail about their enumerated ground(s) and explain why they believe that the negative treatment they experienced was because of their enumerated ground(s).

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

Other common examples of applications that have been found to be outside the HRTO’s jurisdiction include (but are not limited to):

• The respondent is a federally regulated employer or service provider
• The application was filed more than one year after the last incident of discrimination and the applicant failed to cite facts that constitute “good faith”
• The events are not connected to Ontario
• The applicant is challenging an unfavourable adjudicative or judicial decision
• The respondent is not providing a service to the applicant
• The application does not set out the elements of reprisal under the Code

Procedure

The HRTO will review the application, assess and identify any jurisdictional issues. Jurisdictional issues can be raised and addressed by the HRTO at any time during the process.

Where it appears to the HRTO that a matter may be outside of its jurisdiction, the HRTO will request the applicant provide information or submissions.

The HRTO will notify the applicant of its concerns and request that the applicant provide written information and submissions with respect to the jurisdictional issue(s). Such requests will include:

1. Notice that the HRTO has identified that the application may be outside of its jurisdiction
2. A brief summary of the jurisdictional issue(s)
3. Notice that the applicant must file written submissions and a deadline for doing so, and
4. Notice that the HRTO will consider the submissions and then decide whether to continue to process the application or to dismiss it as being outside of the HRTO’s jurisdiction.

In some cases, in accordance with Rule 1.7, the HRTO may also request that the respondent (where they have been served with the application) provide information and submissions on a specific issue or that the applicant provide evidence to support all or part of their application.

If after reviewing the submissions the HRTO determines that the matter is outside of its jurisdiction, the HRTO will issue a written decision dismissing the application. An oral hearing will only be ordered in exceptional circumstances¹.

A copy of the decision will be sent to the parties and published on the Canadian Legal Information Institute website.

Where the HRTO decides not to dismiss the application, the parties will be informed that the application will continue in the HRTO’s process. This is not a final decision regarding the jurisdiction issue(s) and the issue(s) may be raised again later in the proceedings.