May 7, 2021
The Ontario Human Rights Commission (OHRC) congratulates the Human Rights Tribunal of Ontario (HRTO) for launching this consultation and welcomes the opportunity to provide input on the proposed changes to its Rules and Forms.
Ontario’s direct access human rights system was created to deal with complaints in a just and timely manner. The HRTO plays an essential role in this direct access system in ensuring that human rights applications are fairly and properly considered and in providing accessible human rights remedies for all Ontarians. This means that the HRTO’s processes – including its Rules and Forms, must be carefully designed to ensure that all parties are able to put forward their claims as effectively as possible, especially when parties are proceeding in the absence of legal representation.
Efforts to streamline the process must be designed to avoid creating unintended barriers or incentives that complicate proceedings and result in further time-consuming Tribunal touch points – whether it be through a growing reliance on Requests for Orders during Proceedings (RFOPs) or premature summary hearings.
The OHRC has reviewed the proposed amendments, and welcomes many of the HRTO’s efforts to simplify its Form 1 and clarify its Rules. Our review has identified some proposed changes that the OHRC respectfully submits the HRTO should reconsider and redesign because their proposed format is likely to engender unfairness or generate additional hurdles that will unduly complicate procedures.
The OHRC’s overarching comment is that the HRTO should reconsider changes that are likely to impose limits on the ability of applicants – particularly unrepresented applicants – from telling their full story at the initial “pleadings” stages of the application process. Particularly for those whose first language is not English, or who have cognitive or mental health disability, changes such as page/word limits and limits on the right to reply or attach documents to their application risk limiting the ability to meaningfully access the human rights system.
Moreover, the OHRC believes that such changes risk creating additional procedural requests, and would therefore have little positive impact on the HRTO’s desire to ensure a fair, just and expeditious process.
- Word limits – The amended forms indicate apparently strict word and page limits for applications (and we are advised that similar restrictions will be put in place for responses). While the OHRC appreciates the desire to streamline some aspects of the Tribunal’s process, strict word limits risk creating a more burdensome process for all parties and the Tribunal.
For unrepresented applicants who may be unable to efficiently describe their circumstances, such a rule would create a barrier to accessing justice. Moreover, given that applicants will be required to limit the details of their applications, respondents may be more likely to rely on that lack of details to seek a summary hearing – at which point the applicant will be able to provide the additional details left out of the application due to word count. Accordingly, instead of streamlining the process the word/page limit risks creating additional work for the parties and more points of contact with the Tribunal.
In addition, applicants who are represented by counsel are likely to bring RFOPs seeking leave to file longer applications. This process will create yet more work for the parties, and increased contacts for the Tribunal, likely resulting in overall delays.
The OHRC encourages the HRTO to reconsider introducing page limits. The OHRC believes that it would be sufficient for the HRTO to include a suggested word length on the Forms and to expressly encourage brevity, without imposing strict limits.
- Limits on documentary disclosure – Amendments to Rule 6.1 seek to prevent applicants from including related documents with their applications. While the OHRC welcomes the decision to remove the requirement that relevant documents be identified at the outset of the application, in many cases an applicant may wish to rely on a key document that demonstrates the conduct for which they are seeking relief. It may be difficult for unrepresented applicants to clearly summarize and explain the document, which risks confusing or complicating their application from the outset. While the OHRC understands the desire to streamline its processes, in many instances it may be more efficient for the Tribunal and all parties to have the key document before them.
As noted above, limiting the ability of unrepresented applicants to supplement their application materials in this way will likely result in an increase in requests for summary hearings. The introduction of the document at the outset may in many cases avoid the need for summary hearings or summary hearing requests.
Accordingly, permitting the inclusion of key documents with the Form 1 application will not significantly delay HRTO proceedings, while prohibiting their inclusion may in fact complicate and delay matters with unnecessary proceedings. Any such change should be permissive – the OHRC agrees that the inclusion of such documents at the outset should not be mandatory.
- Reply – Amendments to Rule 9.1 seek to limit the ability of applicants to reply to the respondent’s response – permitting reply only where the Tribunal requests it.
This attempt at streamlining will disproportionately affect unrepresented applicants, particularly those whose first language is not English or who have mental health disabilities or other limitations in their ability to express themselves.
This amendment creates the potential to complicate and delay proceedings in two ways.
First, unrepresented applicants are often unsure of which particulars are needed in the Form 1. This is often because they are unfamiliar with the law, are unable to describe the intersectional nature of their claim, or because they view the application as a formulaic, initializing document, not a document that could ultimately make or undermine their future case. They may, for example, simply note “reprisal” without the context. For those applicants, the response from respondents (who are more frequently represented by counsel) will often be the first opportunity they have to understand the type of information that they need to include in their application to support their claim in a way that is recognizable under the Code.
This missing information is frequently submitted through “reply.” Permitting reply as a right allows the Tribunal to better understand the nature of claims brought by unrepresented applicants. If there is no right to reply, the unrepresented applicant will more often be prevented from fully describing their case through the pleadings, and a respondent is more likely to seek a summary hearing for a meritorious case, simply because the applicant was unaware of the particulars to plead in the first instance. It will then be through the more labour-intensive step of the summary hearing process that the unrepresented applicant will be able to better describe the nature of their claim.
Second, applicants who are represented by counsel are likely to bring requests for orders permitting them to file reply. Those requests will create an additional burden on the Tribunal, as the Tribunal will need to issue case management directions or decisions to determine the request to submit a reply.
Permitting right of reply ensures that applicants are able to describe their full story and answer the issues raised by the respondent to ensure a just consideration of their claim. Moreover, when considered holistically, prohibiting such reply would likely result in additional work for the Tribunal, creating unforeseen procedural wrangling through the RFOP and summary hearing processes.
There may be some instances in which a broad right of reply will trigger a procedural right on behalf of the respondent to respond to claims raised for the first time in reply. In the OHRC’s view, requests to provide further response at the pleadings stage is likely to create less (or at least equivalent) procedural delay as would a limit on the right to reply. Permitting reply provides the benefit of ensuring that all parties have a full opportunity to describe and seek redress for their claimed Code breach.
- Administrative withdrawals – Amendments to Rule 10.5 provide the Tribunal with the authority to administratively process requests to withdraw. The OHRC does not oppose this step in and of itself. However, the Rule has been further amended to provide that refiling a substantially similar application “may” be considered an abuse of process and/or otherwise rejected by the Tribunal. It is not clear what benefit there is to warning parties against withdrawal.
There are legitimate reasons that a party may choose to withdraw an application without prejudice to their rights to recommence an application at a later date (settlement, naming the wrong party, etc.). As drafted, the Rule could incentivize parties to keep cases in abeyance when they should just be withdrawn without prejudice and taken off the Tribunal’s docket. The Rule also creates the risk that a party who withdraws because they have named the wrong party could have their next application denied administratively.
If a party is withdrawing and restarting litigation in a vexatious/abusive manner, that issue can be addressed on its own merits. The Rules should not appear to create a negative burden on the applicant that prevents or dissuades them from properly withdrawing their application.
- Hearing comportment – Rule 3.7 has been added to indicate that “Parties are expected to be dressed professionally and appropriately for videoconferences, as if the hearing were conducted in person.” While recognizing the need to signal to parties that the video hearing process is to be taken seriously, the OHRC believes that the language used could be confusing or intimidating for vulnerable or marginalized applicants, particularly when they are unrepresented. Many applicants may be unsure about what constitutes “professional” or “appropriate” dress. Others may worry that they lack the “required” clothing. In the OHRC’s view it would be preferable to focus on conduct, and the formality of the process, as opposed to the clothing choices of the parties. For example, the rule could simply state that: “Parties are expected to prepare for and conduct themselves at videoconferences as if the hearing were conducted in person.”
- Case conference for Commission-initiated applications – Amendments to Rule 12.5 eliminate the mandatory 45-day case conference for all OHRC-initiated applications, in favour of a permissive rule. Rule 12.5 exists because it is recognized that OHRC-initiated applications are, by definition under s. 35 of the Code, undertaken in the public interest, and will often address broad, systemic issues requiring timely guidance from Tribunal to ensure an efficient outcome. This is a procedural safeguard to ensure the timely processing of these applications made in the public interest. The mandatory language of Rule 12.5 should be maintained. There is no indication that it would be onerous on the Tribunal to maintain this rule.
The Tribunal has indicated that it wishes to expand the discretionary use of case conferences for all applications. The OHRC supports such an approach. Nonetheless, the OHRC believes that the mandatory case conference for s. 35 applications should be maintained.
- Hearing attendance – The draft “How to Observe a Hearing” FAQ, provided for the consultation, indicates that persons wanting to attend a hearing must provide seven days’ notice to the Tribunal. This seems to place an overly-burdensome requirement on the public. The Court of Appeal for Ontario currently asks attendees to provide 48-hours’ notice if they wish to attend a video hearing. The Tribunal should adopt a similar timeline.
- Determination in the absence of participation – Amendments to Rule 5.4 would permit the Tribunal to finally determine an application (including dismissal) when the Tribunal is unable to contact a person or the person does not respond to a request from the Tribunal within a deadline. While recognizing the need to have finality, the OHRC believes that safeguards must be put in place to ensure that parties are not unfairly excluded from participating in a proceeding for reasons beyond their control. In moving to a digital-first mode, the HRTO should take steps to ensure that technological problems are not the source of a party’s failure to respond to the Tribunal. An alternative form of contact (e.g. mailing address) should be collected at the outset of an application and at least one attempt at contact through that alternative should be made prior to final determination in the absence of participation.
- Employment option G – Form 1 requires applicants who are claiming discrimination in the social area of employment to choose from a closed set of options to describe their relationship to the respondent (e.g. current employer, former employer). The closed set raises the risk that an applicant will be unable to bring their claim if it relates to a different type relationship, even if could ultimately be able to show that such a relationship falls within s. 5 of the Code. The Tribunal should consider creating an “other” category for this list. Alternatively, the Tribunal may consider removing this list from the Form entirely. It is not clear why the relationship in the employment context must be defined by a closed list when the Form provides no such lists to describe the relationships at issue in other social areas.
The OHRC welcomes the HRTO’s invitation for comment on the proposed amendments to the Forms and Rules, and its ongoing engagement as this process moves forward. The OHRC would be pleased to discuss these matters further at the Tribunal’s convenience.