Implementing the new
Human Rights Code: The
Tribunal’s Perspective
David A. Wright
Associate Chair, Human Rights Tribunal of
Ontario – Social Justice Tribunals Ontario
Outline of Presentation




Some Numbers
Key Principles of the Dispute Resolution
Model
Challenges and Adaptations
Questions/Challenges for the Future
Some Numbers
S. 34 Cases Resolved
4000
3500
3000
2500
2000
1500
1000
500
0
3541
3363
2737
3166
1736
1937
2717
1429
1558
18
2008-09
2009-10
2010-11
Applications Filed
2011-12
2012-13
(First
Half)
Applications Closed
Social Areas
% of 2011-12 Applications Naming Social Area
6%
1.20%
1%
Employment
Goods, Services,
Facilities
Accommodation
20%
70%
Membership in a
Vocational Association
Contracts
Grounds
% of Applications 2011-12 naming ground
60%
52%
50%
40%
30%
24%
20%
20%
14% 14%
14%
10% 12%
10%
10%
4% 6%
4%
4% 6%
1%
0%
Decisions: S. 34 Applications
Type of Decision
Final decision on the
merits
Discrimination found
Discrimination not
found
Dismissal on a
preliminary basis*
Deferrals
Withdrawals**
Other procedural issues
Reconsideration
Breach of settlement
decision
TOTAL DECISIONS
2011-2012
2010-2011
2009-2010
95
40
104
41
75
29
55
63
46
786
229
3
355
140
562
233
38
570
103
301
147
212
931
66
7
1,617
8
1,740
12
1,620
*This includes cases dismissed under the summary hearing procedure
**The HRTO no longer prepares a decision for each withdrawal, and most withdrawals are now confirmed by
letter.
Mediations
700
617
600
500
400
300
200
100
0
387
426
341
252
212
332
249
162
197
319
209
Mediations Held
# Settled
Representation at Mediation:
Applicants, 2011-12
%
26.52
54.75
3.98
11.15
3.61
Lawyer
Paralegal
Legal Support Centre
Other
Self-represented
Representation at Mediation:
Respondents, 2011-12
%
14.39
1.59
1.04
Lawyer
Paralegal
Other
Self-represented
82.98
Key Features of the
Dispute Resolution
Model
Applications and Responses



Forms are detailed, all facts and a theory
of the case are required
Tribunal screens Applications and
Responses and delivers them
Full response on the merits must be filed
if the application is delivered and a
response is required except in certain
limited circumstances
Preliminary Issues



No entitlement to have preliminary issues
decided in advance of the hearing or
mediation
Issues other than jurisdiction that may
result in dismissal of the application
require oral submissions
Tribunal frequently raises issues on its
own initiative
Initial Screening



Tribunal screens for completeness,
jurisdiction, deferral
Dismissal for jurisdiction may occur
following letter to and written submissions
from the applicant only
Post 2010, Tribunal may also direct
summary hearings, 45.1 hearings without
requiring response
Mediation




Voluntary – agreed to in application and
response and Tribunal may make calls to
encourage mediation
Conducted by Tribunal members
Evaluative approach
Tribunal does not approve or track
settlements
Hearings

Scheduled for up to three initial days

Pre-hearing preparation is key – detailed
witness statements and documents to be
relied upon must be filed 45 days in
advance
Challenges and
Adaptations
Social Justice Tribunals Ontario

As of March 2011, HRTO part of SJTO


Includes Landlord Tenant Board, Social
Benefits Tribunal, Child and Family Services
Review Board, Ontario Special Education
Tribunals
Under Adjudicative Tribunals
Accountability, Governance and
Appointments Act, common Exec Chair,
accountability documents, etc.
Social Justice Tribunals Ontario

Goal of SJTO transformation is to
redefine or redesign previously distinct
individual tribunals into a single,
integrated administrative justice
organization, with recognizable
component parts based, at least in part,
on the original tribunals.
Social Justice Tribunals Ontario

\Common general rules, strategic crossappointments, enhancement of
adjudicator expertise through training will
be among the first impacts on
adjudication
Summary Hearings



The concern: no middle ground between
dismissal for lack of jurisdiction and full
oral hearing
Pre-hearing requirements
disproportionate to the issues in some
cases
Both applicants and respondents on
Practice Advisory Ctte raised concerns
Summary Hearings

July 2010 Rule 19A introduced:
19A.1 The Tribunal may hold a summary hearing, on its
own initiative or at the request of a party, on the question of
whether an Application should be dismissed in whole or in
part on the basis that there is no reasonable prospect that
the Application or part of the Application will succeed.
Summary Hearings



Can be on the Tribunal’s own initiative or
respondent request
If respondent’s request is rejected, no
reasons
Heard by half-day teleconference in which
the applicant goes first.
Summary Hearings
Dabic v. Windsor Police Service, 2010 HRTO 1994:
“In some cases, the issue at the summary hearing may be
whether, assuming all the allegations in the application to
be true, it has a reasonable prospect of success. In these
cases, the focus will generally be on the legal analysis and
whether what the applicant alleges may be reasonably
considered to amount to a Code violation.
Summary Hearings
In other cases, the focus of the summary hearing may be
on whether there is a reasonable prospect that the
applicant can prove, on a balance of probabilities, that his
or her Code rights were violated. Often, such cases will
deal with whether the applicant can show a link between an
event and the grounds upon which he or she makes the
claim. The issue will be whether there is a reasonable
prospect that evidence the applicant has or that is
reasonably available to him or her can show a link between
the event and the alleged prohibited ground.”
Hearings

Active approach



identification and narrowing of issues, active
questioning of parties
balance can be difficult with a large
percentage of self-represented applicants
and respondents
Different cases call for different approaches
– balance of predictability, flexibility,
individuality of adjudicators
Pellerin
Pellerin v. CSDCCS, 2011 HRTO 1777
 Reasonable prospect of success test
extended to be used in appropriate cases
during hearings
 Maybe be considered after hearing some,
but not all evidence
 Move away from concept of prima facie
case
Mediation



Standard length for s. 34 Applications
changed from full day to half day in 2010
Little to no impact on settlement rate:
approximately 60% on the day of
mediation
1633 mediations held in fiscal 2011-12;
62% settled
Mediation-Adjudication



Rule 15A added and standard agreement
developed to formalize mediationadjudication
Frequently offered by the tribunal and
requested by parties
High success rate
Litigation Guardians



No explicit power to appoint a litigation
guardian in SPPA or Code
Use of s. 34(5) for substitute decisionmaking: Kacan v. OPSEU, 2010 HRTO
795
Common law power to appoint litigation
guardian: Yuill v. CUPE, 2011 HRTO 126
Vexatious Litigants
Drenic v. Governing Council of the Salvation
Army, 2010 HRTO 1667
 Applicant had filed 11 applications all
dismissed, 4 no shows, used
inappropriate language
 Power to control process and prevent
abuse of process allows for declaration
requiring permission to commence apps
No Shows



Burden on respondent and tribunal when
applicant fails to appear
Instituted practice of dismissing
applications as abandoned if applicant
fails to file documents after a reminder
CAD
Lukusa v. Toronto Police Service, 2012 HRTO
2054
Questions/Challenges
for the Future
Future Questions/Challenges



Detailed forms – balance of
benefits/drawbacks for access to justice
Non-complying respondents after
decision– no “breach of order” power in
Code
Ensuring implementation of remedies for
future compliance
Future Questions/Challenges



Hearings – continuing to strike
appropriate balance between flexibility,
predictability and consistency
Maintaining accessibility of process
despite sometimes complex human rights
concepts
Continuing to resolve disputes in a timely
way in the face of budget constraints