November 22, 2024
Introduction
The Ontario Human Rights Commission (OHRC) is established as an independent arm’s-length agency of government under the Human Rights Code (the Code) to eliminate and prevent discrimination, and to promote and advance human rights in Ontario. The OHRC works to ensure that the Code rights of all people in Ontario to equal protection and opportunity without discrimination are protected.
As part of its mandate, the OHRC appears before the Human Rights Tribunal of Ontario (Ontario) as a party and works to ensure that all Ontarians have access to justice under the Code.
It is in this context that the OHRC makes the following submissions with respect to the HRTO’s consultation on updates to its Rules of Procedure. It should be noted that given the limited details regarding some proposed rule changes, the OHRC’s submissions are necessarily presented at a high level.
The OHRC supports efforts to ensure that people in Ontario can efficiently and effectively access justice and protect their rights through Ontario’s human rights system. The OHRC is concerned that many of the proposed changes risk creating further inefficiencies in the system or limiting the ability of claimants (particularly those from marginalized communities) to effectively access the human rights remedies to which they may be entitled under the Code.
The OHRC encourages the HRTO to work closely with community members and human rights organizations to develop rule changes that will help to protect the human rights of individuals in a fair, efficient and effective manner.
1. Proposed elimination of summary hearings (Rule 19A)
The summary hearing process was established to ensure that the HRTO would be able to expeditiously deal with claims that may not necessitate a full hearing.
The process provides a means for the HRTO to dispense with claims that have no reasonable chance of success, while providing applicants (in particular, unrepresented applicants) with the opportunity to explain the nature of their experience to an expert human rights adjudicator.
Oral hearings before an expert adjudicator are essential to the effective determination of human rights claims. Many under-represented claimants may have difficulty explaining their experience in written forms and documents. They lack legal training and may have limited language skills. Their first language may not be English or French. The value of the summary hearing is to ensure that such applicants can present their story to the adjudicator before it can be dismissed. In that context, the adjudicator can ask probing questions to determine whether the applicant has a reasonable chance of success.
The Legislature’s recognition of the importance of oral hearings is reflected in s. 43(2)(1) of the Code and s. 4.6 of the Statutory Powers Procedure Act.
If summary hearings are eliminated, these determinations will be delayed until the full hearing process, causing further delays to the system and inconvenience for the parties. The elimination of summary hearings means that all parties incur significant expenses in preparation for a hearing, even when the application has no reasonable chance of success. Parties will need to prepare for full hearings that may not have been otherwise necessary, including the process of documentary disclosure, preparing witness statements, hiring potential experts, and drafting written submissions.
For the HRTO, the additional burden created by the elimination of summary hearings in favour of full hearings risks incentivizing the use of alternatives to hearings that are not consistent with an accessible human rights system that provides access to an oral hearing process as required under the Code. As discussed below with respect to the proposed update to Rule 13 (Jurisdiction), the OHRC is concerned that some individuals with valid human rights claims are being denied a hearing based on an overly narrow interpretation of the Tribunal’s jurisdiction.
The OHRC is not suggesting that the process for holding summary hearings is perfect. There may be changes to the rules and processes governing summary hearings that would be less cumbersome to parties and would limit their use to circumstances in which they can reliably be expected to create efficiencies in the system.
The OHRC recommends that the HRTO work with community members and human rights organizations to consider and adopt changes to the summary hearing process that will maintain their purpose as a tool to efficiently and effectively deal with applications that may have no reasonable chance of success, while maintaining an accessible human rights system.
2. Proposed update to Rule 13 (Jurisdiction) to align with the Practice Direction on Jurisdiction.
The Tribunal proposes to amend its Rules to align with its 2022 Practice Direction on Jurisdiction.
The 2022 Practice Direction on Jurisdiction has created a number of issues for applicants seeking access to justice through the human rights system. With the proposed elimination of summary hearings, applicants face an increased risk of being denied an opportunity to make their human rights case directly to an expert adjudicator as contemplated by the Code and the SPPA.
To the extent that changes to the Rules will reflect or enshrine the Practice Direction’s assertion that a failure to “link the applicant’s Code grounds to the adverse treatment that the applicant received” at the application stage permits a claim’s dismissal on jurisdictional grounds, the Rules will have the effect of denying many applicants their right to an oral hearing of their Code claim. This is particularly so, given the Practice Direction’s indication that the Tribunal is now considering these issues on a balance of probabilities standard.
Establishing a nexus between a ground of discrimination and adverse treatment can be a complex process and will often require an assessment of the evidence. Adopting an interpretation of jurisdictional issues that strictly interprets the substance of a human rights claim risks having the Tribunal dismiss cases without a hearing simply because there were no express discriminatory comments, because the adverse effects of the conduct arise from a neutral rule, or because information relating to the conduct is solely within the respondent’s control. This creates artificial burdens to bringing a human rights claim, and potentially limits the legislated scope of Code protections.
The Supreme Court has held that the concept of “jurisdictional questions” should be applied narrowly and not be expanded in a manner that converts any legal dispute into a “jurisdictional question”.[i]
The Practice Direction proposed to be incorporated into the Rules takes an overly broad view of “jurisdictional questions” and a correspondingly narrow view of the HRTO’s statutory jurisdiction. Ultimately, determining whether there is a connection between the claimed ground and the conduct will usually require a weighing of the evidence, a drawing of inferences and the consideration of legal arguments regarding the nature of the necessary connection. These are not questions of jurisdiction, but of whether discrimination has been established.
While there are indeed instances in which an application may present no reasonable chance of establishing a connection between the claimed ground and the conduct, this does not render it a “jurisdictional” case. The Legislature, through s. 43(2)(1) of the Code and s. 4.6 of the SPPA, has recognized the importance of providing all applicants the opportunity to tell their stories directly to an adjudicator in an oral hearing. This ensures that applicants have an opportunity to be heard and understood and can make their best case, even if their lack of legal training or limited language skills limited the quality of their written application.
As discussed above, it is the Summary Hearing process that provides the Tribunal with the flexibility to hear and dismiss cases that have no reasonable chance of success in an expeditious manner that protects the rights of claimants to have their claim heard and understood by an expert adjudicator.
The OHRC recommends that the HRTO work with community members and human rights organizations to consider and adopt changes to Rule 13 that ensure the efficient and fair treatment of claims that are outside of the Tribunal’s jurisdiction without denying the right of applicants to access justice through an oral hearing in matters that properly fall within the HRTO’s statutory jurisdiction.
3. Proposed elimination of case management conference calls (Rule 1.4).
Case management conference calls are the means by which the Tribunal can informally ensure that its hearings proceed in an efficient and orderly manner.
It is in the nature of all litigation that in advance of a hearing questions will arise with respect to documentary disclosure, witness requirements, witness order, preliminary legal issues, hearing length and other logistical issues. A case management conference operates as a means by which those questions can be dealt with in advance of the hearing, to ensure that the hearing is able to proceed in an efficient and effective manner.
The importance of case conferences is most evident in the circumstances of complex systemic discrimination claims, where all parties and the HRTO benefit from the availability of a process to address practical issues in advance of a hearing.
Rule 12.5 recognizes the importance of such case conferences in the circumstance of the complex, systemic claims that can be expected to be initiated by the OHRC in the public interest under its s. 35 powers. The OHRC submits that the requirement to hold a case conference within 45 days of responses being filed in s. 35 applications should be maintained.
Regarding other applications, the OHRC has always understood that it is within the discretion of HRTO adjudicators to hold a case management conference as they deem necessary. If the HRTO has determined that some case management conferences are unnecessary, its adjudicators can presumably adjust their practices. However, the availability of case conferences is important to the efficient resolution of many cases, and the HRTO should continue to make such proceedings available to its adjudicators.
The HRTO should ensure that its adjudicators continue to have the discretion to hold case management conferences to address practice issues in advance of a hearing.
4. Proposed limits on requests for orders during proceedings (Rule 19).
The HRTO consultation document states that the Tribunal is proposing to amend its Rules regarding requests for orders during proceedings to limit when such orders may be filed.
Without any more details, it is difficult for the OHRC to provide any substantive input on this proposal.
It should be noted, however, that requests for orders during proceedings address a number of different circumstances, including circumstances that may arise early in a proceeding (e.g., adding or removing a party, amending an application or response), during the disclosure process (e.g., a request for further disclosure), or in advance of a hearing (e.g., a request for an extension of time).
Accordingly, any change to the Rules to limit when such requests may be made must recognize the multitude of scenarios in which a request may be necessary or appropriate and must accord with principles of procedural fairness. Fairness and efficiency will not be furthered by a Rule that fails to recognize this reality.
The OHRC recommends that the HRTO work with community members and human rights organizations to consider and adopt changes to the Rule governing requests for orders during proceedings. The Tribunal should identify those areas in which the use of requests for orders is creating inefficiencies and should work to develop a Rule that addresses those concerns while ensuring fairness to the parties.
5. Proposed elimination of rules governing expedited hearings and interim remedies (Rules 21 and 23)
The HRTO consultation document states that the Tribunal is proposing to review its rules governing expedited hearings (Rule 21) and interims remedies (Rule 23) to “support a streamlined hearing process.”
The consultation document does not specify the extent to which expedited hearing or interim remedy requests are currently creating inefficiencies in the HRTO’s system. However, even in an adjudication system that is operating efficiently, there may arise cases in which an expedited hearing or interim relief is necessary to ensure that an individual’s rights under the Code will be fully vindicated. In some instances, a failure to expedite a hearing or provide interim relief will mean that an individual will be left without an effective remedy for the violation of their rights under the Code.
Given this reality, compliance with the Code will in some circumstances require the Tribunal to provide an expedited hearing or award interim relief. The OHRC submits that it is more transparent and accessible for the HRTO to communicate to the public the process that should be followed to obtain such relief.
The OHRC recommends that the HRTO work with community members and human rights organizations to consider and adopt changes to the Rules governing expedited hearings and requests for interim remedies. The Tribunal should identify those areas in which these requests are creating inefficiencies in the hearing system and should work with community members and human rights organizations to develop Rules that addresses those concerns while ensuring that the public is aware of how such processes or relief can be pursued.
Conclusion
The human rights system in Ontario relies on the fair, efficient and effective adjudication of human rights disputes by the HRTO. The OHRC supports efforts to improve the Tribunal’s processes. However, to be effective the Tribunal process must remain fair to all parties who seek access to it, including applicants from marginalized communities who may not have the benefit of legal assistance.
The OHRC encourages the Tribunal to work with community members and human rights organizations to identify specific rule changes that will help to protect the human rights of individuals in a fair, efficient and effective manner.
[i] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 65; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 at para 32.