On June 4, 2008, the Human Rights Tribunal of Ontario published its new Rules of Procedure. These Rules are effective June 30, 2008 and apply to discrimination applications filed with the Tribunal on or after June 30. Under the new Rules, parties must file substantive pleadings with the Tribunal and are subject to strict timelines for the filing of documents.
DETAILED REPORT
On April 6, 2006, the Government of Ontario introduced sweeping changes to the Human Rights Code with Bill 107, An Act to Amend the Human Rights Code. Those amendments take effect on June 30, 2008. Like reforms introduced in British Columbia in 2003, Bill 107 gives complainants direct access to adjudication.
Currently, human rights complaints are received and processed by the Ontario Human Rights Commission. The Commission investigates complaints and ultimately determines whether they should be referred to the Human Rights Tribunal for hearing. However, the Commission will shortly lose this gate-keeping function. As of June 30, all complaints (called applications) may be filed directly with the Tribunal.
In addition to adjudicating discrimination applications, the Tribunal will manage the intake of applications and responses to applications. Key to the success of the Government's reforms will be the Tribunal's ability to effectively manage these new responsibilities and conduct hearings within a reasonable time frame.
Timeliness is a major concern to many human rights stakeholders who have been frustrated by the "glacial speed"1 at which human rights complaints have traditionally made their way to adjudication. With that in mind, the Tribunal has publicly committed to core values of "accessibility, fairness, transparency, timeliness and the right to be heard" and has developed Rules of Procedure to reflect these values. These Rules of Procedure can be accessed from the Tribunal's website at http://www.hrto.ca.
Timing of applications by or on behalf of a person
An individual has up to one year after an incident of discrimination to file an application with the Tribunal. Where the applicant complains of a series of incidents of discrimination, the application must be filed no later than one year after the last incident of discrimination is alleged to have occurred.
The Tribunal may relieve against these time limits if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any party affected by the delay.
Application must be substantive
A complete application must set out all of the material facts including the circumstances of what happened, where and when it happened and the names of person(s) or organization(s) alleged to have violated the applicant's rights under the Code.
Although an application must include a list of witnesses and related witness information, the Tribunal will not include this information in its notification to the respondents and to any trade union, occupational or professional organization identified in the application.
Request to defer consideration can be made by any party
An applicant may request that the Tribunal defer consideration of an application if there are other legal proceedings relating to the same subject matter. The Tribunal may also defer consideration on its own initiative or at the request of another party.
Before the Tribunal will make a deferral order, it will first give notice to the parties, any identified trade union or occupational or professional organization and any identified affected persons and they will be given an opportunity to make submissions.
Response must be timely
A respondent must complete and file a response form no more than 35 days after the Tribunal sends the application to the respondent.
Response must be substantive
Unless a respondent alleges that the issues in dispute are the subject of a signed release between the parties, a civil court proceeding or a complaint filed with the Commission, the respondent must respond to each allegation in the application and include any additional facts and allegations on which the respondent intends to rely. The response must also include a list of witnesses and related witness information.
With the exception of the confidential list of witnesses and related witness information, the entire response will be sent to the applicant.
Effect of non-compliance with these Rules
The Tribunal has authority to relieve against technical defects or irregularities and may vary or waive the application of the Rules on its own initiative or at the request of a party.
Where a respondent does not respond to an application, the Tribunal may:
- deem the respondent to have accepted all of the
allegations
- proceed to deal with the application without further
notice to the respondent
- deem the respondent to have waived all rights with
respect to further notice or participation in a
proceeding
- decide the application based only on the material before
the Tribunal.
In any case, the Tribunal may refuse to consider material that is not delivered in accordance with the Rules. It may also refuse a party the right to present evidence or make submissions with respect to a fact or issue that was not raised in the pleadings.
These Rules for the filing and processing of discrimination applications and responses represent a marked departure from the current system. For more information, contact any member of the Labour & Employment Group at Borden Ladner Gervais LLP.
Footnotes
1 A reference by arbitrator Crljenica in Ontario Nurses' Assn. v. Chatham-Kent Board of Health to the Ontario Human Rights Commission's inability to address complaints on a timely basis. Ultimately, the arbitrator took jurisdiction of a pay equity issue on the reasoning that the statutory right to be paid in accordance with the Pay Equity Act is "...implicit in every collective agreement".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
