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Litigation and inquiry strategy

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public interest inquiry
litigation
intervention
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This Litigation and Inquiry Strategy sets out when and how the Ontario Human Rights Commission (OHRC) decides to conduct an inquiry, commence an application before the Human Rights Tribunal of Ontario (HRTO), or intervene in a legal proceeding. It also includes information on the role of the OHRC within Ontario’s human rights system.

 

The Role of the OHRC in Ontario’s Human Rights System

Ontario Human Rights Commission

The Ontario Human Rights Commission (OHRC) works to promote, protect, and advance human rights in Ontario. The Human Rights Code provides a range of different tools that the OHRC may use, including, among others, policy development, research, public education and training, human rights inquiries, and legal action.

The OHRC has unique legal powers under the Human Rights Code. It may conduct inquiries, make an application (a complaint) directly to the Human Rights Tribunal of Ontario (HRTO) alleging discrimination, or intervene in applications before the HRTO. The OHRC may also take part in cases before other administrative tribunals and courts.  (The OHRC’s powers under the Code, are set out here: https://www.ontario.ca/laws/statute/90h19#BK33).).

The OHRC is part of Ontario’s human rights system, along with the Human Rights Tribunal of Ontario (HRTO) and the Human Rights Legal Support Centre (HRSLC). These are separate agencies with different roles.

The OHRC does not determine whether the Code has been violated and cannot make legally binding orders to remedy such violations. As set out in more detail below, that is the role of the HRTO.

The OHRC does not provide legal advice or representation to individuals. As set out in more detail below, that is the role of the HRLSC.

 

Human Rights Tribunal of Ontario

The Human Rights Tribunal of Ontario (the “HRTO”) hears applications and decides if someone’s human rights, under the Human Rights Code, have been violated. The HRTO has the power to make orders to remedy a violation of the Code. These functions are the role of the HRTO. The OHRC does not have power over the procedures, operations, and decisions of the HRTO.

You should contact the HRTO if:

  • You believe your rights under the Code have been violated and you would like to file an application (complaint).
  • You have questions or concerns about the HRTO’s procedures and operations.
  • You are looking for remedies to address discrimination you have experienced such as compensation or changes to laws or policies.

For more information about the HRTO:

 

Human Rights Legal Support Centre

The Human Rights Legal Support Centre (the "HRLSC") provides advice to people who believe they have experienced discrimination, helps people file applications with the HRTO, and may provide legal representation at the HRTO. The OHRC does not provide legal advice or representation to individuals or organizations.

You should contact the HRLSC if:

  • You believe your human rights under the Code have been violated and you want advice on what to do.
  • You need help filing an application (complaint) with the HRTO.
  • You received a decision from the HRTO that you are not satisfied with and want to hear about your options.
  • You are looking for legal representation at the HRTO.

Contacting the Human Rights Legal Support Centre is a good first step for people who are unsure what to do or where to start.

For more information about the HRLSC:

 

The OHRC’s Litigation and Inquiry Tools

Inquiries

Under section 31 of the Code the OHRC can conduct an inquiry into incidents or conditions of tension or conflict in a community, institution, or sector of the economy, and make recommendations, and/or encourage and co-ordinate plans, programs and activities to reduce or prevent such incidents or sources of tension or conflict. The OHRC can also conduct inquiries into whether programs, policy and practices made under statute are consistent with the Code.

Inquiries can take many forms. They can be large or small, simple, or complex. They can include:

  • Private letters to organizations requesting a response to an issue or more information.
  • Meetings with organizations, stakeholders, and members of the public.
  • Online-questionnaires or feedback forms.
  • Fact-finding, investigation, and requesting and obtaining information.

The OHRC may make recommendations during and/or at the completion of an inquiry. Recommendations may include suggested changes to laws, policies, practices, or conduct.

The OHRC may initiate an inquiry when it believes that it is in the public interest to do so.

 

Commission-initiated Applications

Under section 35 of the Code, the OHRC may make its own applications directly to the HRTO to allege discrimination and ask for an HRTO order. In these applications, the OHRC has the same role as an applicant in bringing evidence to show that discrimination has occurred and making arguments related to remedies. The HRTO is still in charge of deciding whether discrimination occurred.

In a Commission-Initiated Application, the OHRC represents the public interest, not a specific individual. Individual remedies, such as compensation are not available in a Commission-initiated application

 

Legal Interventions

The OHRC can participate in applications at the HRTO that someone else has filed. Section 37 of the Code says the OHRC may intervene either on terms set by the HRTO or as a full party if the applicant gives their permission. The OHRC’s participation might include calling evidence, cross-examining witnesses, and presenting written and oral submissions to the HRTO. The OHRC might be involved in the whole case or only a narrow set of issues.

When the OHRC intervenes in a legal proceeding, its role is to represent the public interest. The OHRC does not take the role of representing the applicant or providing assistance in arguing their case. Applicants may be self-represented, represented by the HRLSC or by another lawyer. The OHRC might take a position that is different from the applicant’s position.

The OHRC can only intervene at the HRTO if there is an active application. The OHRC does not have the power to overturn findings and decisions made by the HRTO (although it may intervene in a reconsideration, judicial review, or appeal of such decisions).

The OHRC may intervene in cases at other Tribunals and courts, such as the Court of Appeal or the Supreme Court of Canada. However, this requires permission from those tribunals or courts.

 

 

The OHRC’s Litigation and Inquiry Strategy

How does the OHRC choose which cases to be involved with?

The OHRC regularly establishes a multi-year Strategic Plan that sets high level goals and priority issues to meet its statutory mandate. However, human rights cases and issues for inquiry often emerge that are clearly important but may not fall within the OHRC’s current priority areas.

The OHRC looks at new issues on a case-by-case basis to decide if a response is appropriate, including whether an inquiry, intervention, or Commission-initiated application at the HRTO is called for.

In undertaking this review, the OHRC considers whether its involvement:

  • Would support its statutory mandate, high-level strategic goals, and priority areas of work.
    • Would it complement current, future, or other potential activities of the OHRC?
  • Will have a broad, systemic impact on the promotion of human rights in the province:
    • Does it raise significant issues of public policy or public interest from a human rights perspective?
    • Will it benefit vulnerable or marginalized people protected by the Code?
    • What is the likely outcome?
  • Will it shape, clarify, or advance human rights law in Ontario?
  • Is required because of the seriousness, importance, or complexity of the issue.
  • Could be undertaken effectively within current OHRC resources.

The OHRC receives many requests from the public and cannot become involved in every request that reflects these considerations. Regardless of the OHRC’s involvement individuals alleging discrimination can make an application to the HRTO and receive support from the HRLSC.

 
How does the OHRC spot emerging issues?

The OHRC’s Issues Management team monitors developments in human rights and related social issues, proposed provincial legislation, noteworthy the HRTO and court decisions, and other factors that could affect human rights in Ontario. The OHRC identifies potential matters for litigation or inquiry through:

  • Issues raised in news media and other electronic publications
  • Cases scheduled to be heard by courts or HRTOs as well as court and HRTO decisions
  • Notices from the HRTO of applications that may raise significant human rights issues through, for example, interim decisions identifying opportunities for potential OHRC intervention
  • Requests for Commission initiated-applications, inquiries, or interventions from the public.
  • Issues identified by staff and Commissioners 
  • Information from the Canadian Association of Statutory Human Rights Agencies about potential inquiries and legal proceedings
  • Opportunities from the Human Rights Legal Support Centre (which provides free legal advice to individuals who think they may have a discrimination claim)
  • Stakeholders or other partners also identify opportunities.

To make a request contact info@ohrc.on.ca. Please include the following:

  • Your name and contact information
  • Whether you are requesting an inquiry, an intervention, or a Commission-Initiated Application (select one)
  • Grounds and social areas where you are alleging discrimination (if you’re not sure you can see the OHRC’s Guide to your rights and responsibilities under the Human Rights Code or contact the HRLSC for help)
  • A description of the issue you are requesting assistance with (i.e., dates, locations, what occurred)
  • Why you are seeking the OHRC’s involvement.
  • Why you believe the issue falls within the OHRC’s criteria
  • What outcome you would like to see
  • Whether there are any legal proceedings regarding this matter. Please include any documents from proceedings
  • If you are requesting that the OHRC intervene in your case at the HRTO please include your Application to the HRTO (Form 1) and any other documents, you have received from the HRTO
  • Any upcoming deadlines

Please note that it takes time for the OHRC to assess requests and determine whether it will become involved and prepare. The OHRC may be unable to become involved if a request is received too close to a deadline such as a HRTO hearing.

 

Examples of OHRC Inquiries and Litigation

Inquiries
  • Inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service - In 2017 the OHRC requested data on use of force, charges and arrests and police stops and worked with an expert to analyze this data and identify racial disparities. It also analyzed policies, procedures, and training materials, interviewed police leadership, and held focus groups with members of Black communities in Toronto. The OHRC produced two interim reports and a final report presenting and analyzing the evidence it found and providing a list of over 100 recommendations to address discrimination against Black people by the Toronto Police.
     
  • With Learning in Mind – In 2016, the OHRC wrote to public colleges and universities in Ontario asking them to implement six specific measures to reduce systemic barriers to post-secondary education for students with mental health disabilities. The OHRC’s inquiry report describes the systemic barriers it identified, the modifications to post-secondary institutions’ policies and procedures it requested and the institutions’ self-reported progress in implementing the changes.
     
  • Not on the Menu - The OHRC conducted an inquiry into dress codes at certain chain restaurants operating across Ontario. Following the release of its Policy position on sexualized and gender-based dress codes, the OHRC wrote to restaurants, informed them about dress code concerns and obligations under the Human Rights Code, and asked them to commit to taking steps to comply. In general, restaurants expressed support for addressing dress codes, sexual harassment, and other human rights concerns in their workplaces. All of them developed new policies or amended existing ones.
     
  • Inquiry into Rental Housing Licensing in the City of Waterloo – In 2012, the OHRC held an inquiry into a rental housing licensing bylaw in the City of Waterloo which imposed, among other things, per-person floor area requirements, gross floor area requirements, and minimum separation distances on certain rental units with three or more occupants. As a result of the inquiry and subsequent negotiations, the City made a number of changes including requiring that the impact on tenants be considered before it revokes or suspends a licence, committing to monitoring the impact of the bylaw on Code-protected groups with the assistance of an expert, and making changes that make it easier for people to share bedrooms.    

 

Commission-Initiated Applications
  • Ontario Human Rights Commission v Mark Saunders and Toronto Police Services Board – In 2015, the OHRC filed an Application with the HRTO alleging discrimination in employment based on disability because of the Toronto Police Service’s failure to include on its Memorial Wall officers who ended their lives as a result of a mental health disability incurred in the line of duty. The OHRC reached a settlement where the Chief of Police agreed to develop an application and assessment process which ensures that the names of members who die from mental health injuries will have an equal opportunity for inclusion on the TPS Honour Wall. 
Interventions
  • Logan v. Ontario (Solicitor General), 2022 HRTO 1004. The OHRC intervened in an application relating to a police DNA canvass of migrant workers conducted by the OPP. During the investigation, the Ontario Provincial Police sought to collect DNA from all Black and Brown migrant workers in the area, including those who did not meet the description of the suspect. The OHRC submitted that this practice discriminated against the migrant workers based on their race, colour, and place of origin and that the police failed to adequately ensure that vulnerable workers were able to provide voluntary and informed consent to the DNA collection. The HRTO found that the migrant workers had experienced discrimination. Following this finding the OPP agreed to make changes to its DNA canvass protocol and training to prevent discrimination from occurring during future DNA canvasses.
     
  • Al-Turki v. Ontario (Transportation), 2020 HRTO 392. The OHRC intervened in an application relating to an Ontario driver licensing policy requiring a person to get state authentication of their driving experience to receive credit for foreign driving experience and receive their full license in Ontario. The OHRC argued that this rule discriminated against refugees based on place of origin, citizenship, and ethnic origin by imposing requirements based on conditions in the refugees’ home countries rather than individual merits. The OHRC argued that the rule exacerbated the already disadvantaged position of refugees by making it challenging to get their full driver’s licences in a timely manner and fed into stereotypes that refugees cannot be trusted. The HRTO agreed with the OHRC's position and ordered the Ministry of Transportation to develop and publicize a new non-discriminatory policy.
     
  • Moore v. British Columbia (Education), 2012 SCC 61 (CanLII). The OHRC intervened in this appeal at the Supreme Court of Canada, which involved a student with severe dyslexia whose specialized learning program was cut by the school district because of budgetary constraints. The OHRC argued that the selection of a comparator group was not required and the service at issue was general education, not special education. Both arguments were adopted by the Supreme Court, which ultimately held that the school district’s action amounted to discrimination.   
  • Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII). The OHRC intervened in this appeal at the Court of Appeal for Ontario, which involved two Black lawyers who were singled out and approached in an aggressive manner by a librarian in the Peel Law Association lounge. The OHRC’s argument about the three-part test for a prima facie case of discrimination was confirmed by the Court of Appeal, which rejected the stricter test of discrimination applied by the Divisional Court. The decision also made clear that racial profiling is a form of everyday racism.