The Rise of Abandonment Dismissals at the HRTO and Increasing Barriers to Access for Applicants
by Emily Shepard
1. INTRODUCTION
This paper is an in-depth study of why and how the Human Rights Tribunal of Ontario (HRTO or Tribunal) is dismissing applications as abandoned, with a focus on abandonment dismissals in 2024. The Tribunal dismissed 934 applications as abandoned in 2024, which accounted for 49% of the Tribunal’s total decisions on CanLII for that year. The HRTO is increasingly dismissing applications as abandoned because applicants (many of whom are self- represented) are not responding to a myriad of new procedural requests from the Tribunal, sometimes with very short timelines to comply. The majority of these requests are not based in the Tribunal’s Rules of Procedure, Practice Directions, or the Human Rights Code. Even applicants who partially respond to these requests are having their applications dismissed as abandoned under a new body of caselaw that is replacing the traditional ‘‘abuse of process” analysis
This paper begins with a quantitative review of data on all dismissals as abandoned by the Tribunal in 2024. I review the reasons why the Tribunal is dismissing applications as abandoned; i.e. what the applicant failed to do that led to the abandonment finding. I analyze data on when dismissed applications were filed, how the reasons for dismissal changed over 2024, and which adjudicators issued dismissal decisions
This paper then examines reconsideration requests of abandonment decisions in 2024 to understand why applicants are requesting reconsideration and how the Tribunal is treating these requests. I compare these findings to abandonment reconsideration decisions from 2017-2023 to show where the Tribunal has become stricter about abandonment reconsideration requests
I then contrast the HRTO’s approach to abandonment with other legal approaches, including judicial reviews, the HRTO’s historic decisions, and the British Columbia Human Rights Tribunal
This paper then moves to a qualitative analysis of the data and reviews four main hypotheses for why the Tribunal has seen an increase in abandonment decisions: (1) novel procedural hurdles acting as barriers to applicants; (2) the Tribunal’s procedural delays in processing leading to applicants ‘‘giving up”; (3) the Tribunal’s own administrative errors; and (4) the Tribunal taking an overly strict approach to appearances and compliance with its directions
I conclude with recommendations for reform at the HRTO to ensure that applications are only dismissed as abandoned when they have truly been abandoned by the applicant.
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