Application and Hearing Process

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Before You File an Application

Helps you decide whether to file an application with the HRTO.

The HRTO can only consider your claim if it:

1. falls within the scope of the Code, and
2. has the legal authority (jurisdiction) to deal with it

The HRTO cannot consider an application if:

• the application does not relate to one of the grounds of discrimination (for example race or disability) or to an area (for example housing or employment) covered by the Code
• the events have no connection with Ontario
• the respondent is a chartered bank, airline, television or radio station, telephone company, a company that operates buses and railways that travel between provinces or is another company that is subject to federal laws.
• the human rights claim is before the courts, or the subject of a court decision

If it appears the HRTO may not have the authority to decide the application, the applicant will be asked to explain how the application is within the HRTO's jurisdiction. An adjudicator will consider the explanation. If the HRTO decides it does not have the authority to deal with the application, the application will be dismissed with written reasons.

File within one year

The Code contains time limits for making an application to the HRTO. You must file your application within one year of when the alleged discrimination happened. If you were discriminated against more than once, you must file the application within one year of the last event. HRTO can hear a late application if it is satisfied the delay occurred in good faith and it will not cause substantial harm (prejudice) to the other parties.

Getting legal advice

If you want to make an application to the HRTO, you can ask the Human Rights Legal Support Centre (HRLSC) for help. The HRLSC is independent of the HRTO and offers free services throughout the province.

If you identify as a member of the Indigenous community and are seeking culturally sensitive legal support, you can contact HRLSC’s Indigenous Services Team.

HRLSC also can provide accommodations for persons with disabilities. If you would like to request accommodation at the HRLSC in advance of your conversation, you can find more details on the HRLSC website.

You may also get help from other legal clinics, a private lawyer or a paralegal, or may choose to file an application on your own. For more information, see Getting Legal Help. For self-directed information to your legal options inside and outside of Ontario's human rights system and how to prepare an application read the HRLSC's How-to Guides.

Timelines

Mediation will be scheduled for about 5 months from the date the parties agree to it. If a hearing on the merits of the application is needed, it will generally be scheduled to take place within 6 months from the date the application is ready to proceed to hearing. In some cases, it can take longer to hold a mediation or hearing. Sometimes there are preliminary issues that need to be dealt with, like an incomplete application or questions about whether the tribunal has jurisdiction. In other cases, parties ask to reschedule the hearing or mediation for a later date. For details see the HRTO’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments

Filing an Application

How to file an application and what kind of information you will have to include on the form.

The HRTO process begins when a person files a completed application form with the HRTO. The person who files the application is called the applicant.

How to file

You can file an application directly through this website using SmartForm. SmartForms are easier to complete and can be processed more quickly than other applications. SmartForm only asks the questions that you need to answer. You can also download an application form or contact us and we’ll mail you a copy. You can mail, fax or email the completed application.

Information to include in the form

The application form asks you to identify who you believe is responsible for the alleged discrimination. This person or organization is called the respondent. There can be more than one respondent but each respondent needs to be involved in or responsible for the discrimination. You must provide a detailed description of the events that led to your claim and explain how each respondent is responsible. Carefully consider who you want to name as a respondent. Naming many individuals in addition to an organization can delay your application. The application form also asks:

• What area(s) and ground(s) of the Code do you believe were infringed?
• What do you want to have happen as a result of your application?
• Do you want to see any changes in policies or practices?
• Have you filed complaints with any other legal bodies about the discrimination?

After you file

Once your application has been received by the HRTO you will receive a letter that includes your HRTO file number. The HRTO will review your application to determine the next steps. If the application is incomplete or more information is required, the HRTO will let you know. You can contact the HRLSC for legal advice and guidance responding to Notices received after you file an application.

If the application is complete, it will be sent to the respondent(s) named in the application and any others who may be affected by the application (e.g. a labour union in the case of an application filed on the grounds of employment). Next, the respondents must submit a Form 2 Response to the HRTO. The HRTO will share the Form 2 with all parties. As an applicant, you have the option to file a Form 3 Reply after receiving the Form 2. After the HRTO has received these documents (or expiry of deadlines for filing these documents), an adjudicator will complete a jurisdictional review followed by an outline of next steps for the parties.

You can learn more about how to complete the application form in the Applicant's Guide. To file an application, visit Forms and Filing.

Filing a Response to the Application

How to file a response and what happens if you don’t.

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. You are called a respondent. A respondent has 35 days to file a response to the allegations in the application.

How to file

You can file a SmartForm Response directly through this website. SmartForms are easier to complete and can be processed more quickly than printed forms. The SmartForm helps you complete the form quickly and accurately by asking only the questions you need to answer. If you don’t want to use the SmartForm, you can download a response form or contact us and we’ll mail you a copy. You can mail, fax or e-mail us the completed response.

Questions on the form

These are some of the questions you will need to answer on the response form.

• Did the applicant tell you about the human rights concern?
• Did you investigate?
• Do you have a human rights policy?
• What is your response to what the applicant says happened and the applicant’s proposed remedy?

More information on how to complete a response is available in the Respondent’s Guide. More information on how to file is available under Forms and Filing.

Incomplete response

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:

1. If you say the court is already dealing with the same matter
2. If you say the parties have settled the claim and the applicant signed a release
3. If you claim the HRTO does not have jurisdiction over the matter because it is under federal jurisdiction.
4. 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

No 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.

Intervening as an affected party

Affected parties, such as unions, are also given a copy of the application. If you have been given notice as an affected party you can ask to intervene (participate) in the proceeding if you believe your legal rights could be affected by the application.

Mediation

The goal of mediation at the HRTO and how it works.

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.

More information on mediation is available in A Guide to Mediation at Human Rights Tribunal of Ontario.

The HRLSC provides free legal advice and representation at the mediation stage of an application and beyond. For applicants looking to represent themselves at a mediation, the HRLSC has self-directed How-to Guides outlining how to prepare for the mediation process.

Summary and Preliminary Hearings

Explains in what cases the HRTO holds a preliminary hearing (A hearing during which the adjudicator decides whether the application can continue.)

Summary hearings

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:

1. 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.
2. 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 summary hearing process is explained in more detail in the Practice Direction on Summary Hearing Requests.

Other preliminary hearings

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.

Before the Hearing

Explains what you or your legal representative will have to do before the hearing.

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.

Legal Representation

The HRLSC provides free legal advice and representation at all hearing stages, including merits and preliminary hearings.

You may also seek representation from other legal clinics, a private lawyer or a paralegal, or you can represent yourself at the hearing. For more information, see Getting Legal Help.

Timelines

You and the other party will receive a Notice of Hearing which gives the date and format 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:

1. 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.
2. Send the HRTO your witness list, witness statements and copies of the documents you will use at the hearing.

For more information about disclosure of documents and witnesses, see Rule 16 and 17 of the HRTO’s Rules of Procedure and the Guide to Preparing for a Hearing before the HRTO.

Case Assessment Direction

Sometimes, an adjudicator will issue a Case Assessment Direction (CAD) to help the parties prepare for the hearing. For example, a CAD may remind parties about the documents they are required to disclose to each other, identify issues which the adjudicator wants the parties to be ready to deal with at the hearing and/or confirm the format of the hearing. An adjudicator could also require the parties to participate in a conference call to help prepare for the hearing and issue a CAD after the call. See also:

• Accessibility and Diversity
• Language Services

During the Hearing

Describes the role of the adjudicator and the role of the parties during the hearing.

The role of the adjudicator

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. For details see: Rule 15: Mediation-adjudication with agreement of the parties and A Guide to Mediation at Human Rights Tribunal of Ontario. 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.

The role of the parties

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. See: SJTO Common Rule A7.

More information about the hearing process is available in the Guide to Preparing for a Hearing before the HRTO.

Decisions

Describes what’s included in two different kinds of decisions: an interim decision and a final decision.

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:

1. 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
2. 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:

1. after a preliminary hearing, on issues like whether the application was filed in time or the issues were dealt with in another proceeding
2. 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:

1. monetary compensation (money)
2. a non-monetary award (human rights training for the respondent’s employees, building an accessible entrance)
3. an order to promote future compliance with the Code, (develop human rights policies, training)

Timing of decision

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.

Request for Reconsideration

Explains when the HRTO may agree to reconsider a final decision.

The Human Rights Code says that the HRTO’s decisions are final and binding on the parties. However, the HRTO may agree to reconsider a final decision if:

• a party has new facts that were not available at the time of the hearing which could change the result of the HRTO’s decision
• a party did not receive notice of the hearing and was unable to participate, through no fault of the party
• the decision conflicts with the HRTO’s procedure or case law and involves a matter of general or public importance.

The HRTO’s Rules set out the process for requesting reconsideration and more explanation is provided in the HRTO’s Practice Direction on Reconsideration.

Judicial Reviews

Explains what it means to make request for judicial review to the Divisional Court.

There is no right to appeal the HRTO’s decisions. However, in limited circumstances, a party who is dissatisfied with a decision may make a request for “judicial review” to the Divisional Court. The court will not grant judicial review unless it is satisfied the decision is unreasonable. A judicial review is not an opportunity to reargue a case, and the Divisional Court will not overturn a decision simply because it believes the HRTO could have or should have come to a different conclusion. An application for judicial review must be served on all the parties to the hearing at the HRTO, the HRTO and the Attorney General. The Divisional Court’s decisions are available on CanLII. You may wish to get legal advice before asking for a judicial review.