An analysis of abandonments at the Human Rights Tribunal of Ontario
A paper by Emily Shepard published in the most recent issue of the Canadian Journal of Administrative Law & Practice provides a detailed analysis of the HRTO’s increasing use of abandonment as the basis for dismissing thousands of applications without a hearing. This analysis confirms the concerns Tribunal Watch has expressed for several years about the Tribunal’s very high rate of dismissals without a hearing, and the Tribunal’s more recent reliance on abandonment as the basis for dismissal.
The extremely high rate of dismissals for a wide range of procedural reasons raises general concerns about access to justice for human rights applicants, the vast majority of whom do not have legal representation. These dismissals also raise concerns that the Tribunal is abusing its procedural powers to reduce the significant case backlog that has developed since 2021.
The Tribunal’s growing reliance on “abandonment” as the basis for dismissal is additionally and particularly disturbing, because this shifts the focus and responsibility away from procedural fairness in the Tribunal’s conduct and effectively holds applicants responsible for not reaching a hearing on the merits. This would be a troubling development if adopted by a well-functioning Tribunal. In the case of the HRTO, where there is systemic failure to fulfill the tribunal’s adjudicative responsibilities to “secure the just, most expeditious and cost-effective determination of every proceeding on its merits”, it is a perverse development.
Shepard’s research demonstrates that:
- The heavy backlog at the HRTO coincides with the very reduced numbers since 2019 of adjudicators with expertise in human rights law and adjudication experience.
- The Tribunal’s use of procedural requirements to dismiss applications has been growing steadily, as has the range of procedural requirements imposed on applicants, including new requirements that have no foundation in the Rules. There is also significant inconsistency both in the expressed timelines for these procedural requirements and in the Tribunal’s implementation of timelines.
- The Tribunal does not hold respondents to the same strict procedural standards as it holds applicants.
- The Tribunal’s reliance on abandonment as the reason for dismissal has increased from 39% of final decisions in 2019 to 77% in 2023 and 66% for the first quarter of 2024. Shepard’s paper also references two cases where the Divisional Court on judicial review was critical of the Tribunal’s dismissal on the basis of abandonment: Zu v. The Corporation of the City of Hamilton, 2021 ONSC 8278, Ramirez v. Rockwell Automation Canada Ltd., 2025 ONSC 1408.
- The HRTO has no working definition of “abandonment” but has moved away from its previous – more appropriate – approach of focusing on whether the applicant intended to abandon their application. By contrast, the BCHRT follows a cautious approach to dismissal that is grounded in policy and a two-step procedure that focuses on the applicant’s intention.
- Examination of reconsideration decisions shows a spike in administrative errors by the Tribunal over the past few years.
- Most dismissals prior to 2024 involved historical cases. The Tribunal is now using procedural requirements to dismiss more recently filed applications as well.
Emily Shepard’s full paper is available here: The Rise of Abandonment Dismissals at the HRTO and Increasing Barriers to Access for Applicants.