Tribunal Watch Ontario comments on the HRTO’s proposed Rules of Procedure changes
On October 25th, the HRTO posted notice on its website that it is “streamlining its processes to facilitate fair, just and expeditious resolutions of the matters before it and reduce delays.” It is doing so by effecting a number of changes to its Rules of Procedure and, at a later date, will be introducing a number of new Practice Directions.
Deficiencies in the Consultation Process
Prior to the advent of Tribunals Ontario in 2019, it was the practice of the HRTO to consult with stakeholders by meeting with advisory groups and/or actively reaching out to the community. This has clearly changed. Notice of the proposed changes was placed on the HRTO website with a scant two-week opportunity for stakeholder input. While the Ontario Human Rights Commission and the Human Rights Legal Support Centre were apparently given notice on the first day of the consultation, other stakeholders were left to discover the notice on their own, with the result that they may not become aware of the “consultation” until the time for submitting comments is past. This is perfunctory consultation at best and not designed to improve transparency.
Beyond the shortness of time, the HRTO has failed to provide the text of its proposed Rules changes. While the proposals are clear in those cases where Rules are simply being removed, in cases where amendments are proposed, no details are provided. Instead, there are vague descriptions of what the HRTO wishes to achieve with the changes. It is impossible for stakeholders to fully understand the impact of what the HRTO intends to do since it is only by reviewing the actual language of the Rule changes that the meaning and consequences of those changes can become clear. For example, the HRTO says it proposes to “amend” Rule 19, which deals with requests for an order during proceedings. The HRTO says that it will change the Rule “to limit when requests for orders may be filed and when they may be addressed by the HRTO.” However, in the absence of any details about what the limits on requests for orders will be or how the HRTO proposes to address those requests, no comment is possible.
Tribunal Watch questions whether a two-week consultation without the opportunity to review the proposed rules is consistent with s. 43(7) of the Human Rights Code which requires the Tribunal to hold public consultations before passing a rule under this section.
To say the least, the HRTO has failed to provide a meaningful opportunity for input and consultation.
Proposed Changes
Although it is impossible without the text of the proposed Rule changes to comment fully on all of the proposed changes, it would appear that the intention of a couple of the proposals is sensible. The proposal to make mediation mandatory, once jurisdiction has been confirmed, is a good idea since many cases are resolved through mediation. Similarly, the proposal to establish hearing disclosure dates tied to mediation rather than to the hearing date is a good one. Doing so should advance the application more efficiently and the disclosure requirements can be addressed directly with the parties at the conclusion of the unsuccessful mediation in order to clarify expectations. Assuming that the adjudicator conducting the mediation makes a point of doing so, this would be helpful particularly for unrepresented parties.
However, other proposed changes are more problematic. These include the following:
Jurisdiction
The Tribunal proposes to amend Rule 13, which concerns early dismissal of an Application because of lack of jurisdiction, “to align with the Practice Direction on Jurisdiction”.
The Practice Direction includes the following statement:
In the past, the HRTO would generally dismiss applications early in the process where it was found to be “plain and obvious” that the application was outside of its jurisdiction. Since January 2021, the HRTO determines jurisdictional issues on a balance of probabilities.
While evidence is properly assessed on a balance of probabilities, the standard for determination of jurisdiction is correctness. It is very unusual for jurisdiction to be determined on the basis that a case is probably not within jurisdiction.
The change in approach has contributed to the dramatic increase in early dismissal of Applications without an opportunity for oral submissions.
Tribunal Watch has identified this proposed rule change as the one that could to the greatest harm to the accessibility of the human rights enforcement process. The HRTO has not provided the wording of this or any of the other amendments, but based on the Practice Direction that it will be aligned with, there is cause for great concern.
The HRTO is currently facing one or more judicial review proceedings challenging its adoption of the balance of probabilities test to determine its own jurisdiction. The Tribunal should not proceed with this proposed rule change until this issue is clarified.
Summary Hearings
The proposal to eliminate Summary Hearings is directly tied to the jurisdiction issue.
The elimination of this rule will neither streamline the HRTO’s processes or lead to greater fairness – in fact, quite the contrary.
Summary Hearings have been used by the Tribunal in cases where it is not clear that Applicant will be able to establish that the unfair treatment alleged is related to a Code-protected ground, or that they will be able to establish that the facts as alleged occurred. Summary Hearings are usually conducted by telephone conference call and add fairness and efficiency to the HRTO process, assisting the HRTO in its statutory duty to consider the real merits of the cases before it. The great majority of applicants are self-represented, and a Summary Hearing gives them an opportunity to speak to an adjudicator and explain the reason why they believed they have experienced discrimination, even if their self-drafted application lacked clarity. If they can provide this explanation in the summary hearing, the case will proceed. If they cannot, it may be dismissed, in whole or in part, as having no reasonable prospect of success.
Summary Hearings align with section 43(2) of the Code, which provides that the Tribunal may not dismiss a case within the Tribunal’s jurisdiction without the opportunity for an oral hearing. The significant change in the Tribunal’s approach of how it will determine its jurisdiction appears in large measure proposed to avoid this requirement which diminishes rather than enhancing fairness in the Tribunal’s processes.
Respondents also benefit from the Summary Hearing process when cases with no merit were dismissed at an early stage. This still happens routinely. In September and October of this year alone, 12 HRTO decisions were reported on CanLII that followed a Summary Hearing. Eleven of these resulted in dismissals in full or in part. In the one case in which there was a partial dismissal, the HRTO dismissed the application as against one of two respondents, thereby streamlining the case and saving a respondent against whom the application disclosed no reasonable prospect of success from the costs of attending a full hearing.
Elimination of Case Management Conference Calls (CMCC)
A CMCC is a pre-hearing meeting conducted by an HRTO adjudicator with the parties involved in a case. Its purpose is to prepare for the hearing by addressing any remaining issues, discussing how the hearing will proceed, and exploring the potential for mediation or adjudication. The CMCC has been one of the most effective tools available to the HRTO in managing hearings in order to make them as efficient as possible.
The HRTO now says that it is eliminating CMCC’s because they have “not proven effective in resolving applications.” This statement is simply wrong. Applications which are usually resolved in one of two ways: either the parties settle or the matter proceeds through a hearing and the HRTO renders a decision. Prior to being moved into Tribunals Ontario, HRTO adjudicators used CMCCs as an effective tool in managing efficient hearings by ensuring that preliminary issues had been identified and resolved prior to the start of hearings so that the parties were ready to proceed. At a CMCC, issues pertaining to disclosure of documents and witness statements could be dealt with and any necessary parameters for the hearing could be set. This included agreement on measures to ensure that hearings were conducted efficiently. CMCC’s have proven to be particularly effective in dealing efficiently with complex hearings by, for example, setting up a pre-hearing process to deal with objections, and getting the parties to agree on time limits for witness testimony or argument. And, since mediation should always be made available, even where the parties had already attempted mediation, invariably, another opportunity would be offered at the CMCC – the prospect of a hearing starting very soon often serves to focus the parties on settlement.
There is no suggestion in the HRTO’s proposals that CMCC’s will be replaced by any other mechanism. This will mean that there will be no opportunity for the HRTO to manage and streamline hearings in advance of the hearing. The elimination of the CWCC without replacing it with a more effective tool – which is not proposed by the HRTO – will lead to unwieldy hearings and less efficiency in the HRTO’s processes.
Removal of the Rule and Forms relating to Interim Remedies
The HRTO proposes to remove Rule 16 and Form 16 which set out the means by which an applicant may request an Interim Remedy. The HRTO says it is doing so in order to “stream line” hearings. While Interim Remedies are rarely granted, this is not a reason to render them no longer available. Interim Remedies are granted where the Application appears to have merit, the balance of harm or convenience favours the interim remedy requested and it is just and appropriate in the circumstances to do so – i.e., the “interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing.” While the granting of an interim remedy is generally regarded as extraordinary, circumstances do arise where an interim remedy is called for: see, for example, K.Z. v. Cambridge Kips Inc., 2017 HRTO 241 (CanLII). And as wait times for hearings continues to grow with the growing backlog of cases, it is foreseeable that there will be more cases in which Interim Remedies will be needed in appropriate cases where the passage to time would preclude a complete, appropriate and effective remedy.
Removal of Expedited Hearings
Similarly, the HRTO proposes to remove the Rule and forms related expedited hearings. Expedited hearings are ordered in “exceptional circumstances” where urgency is an issue or the refusal to expedite could result in the remedy no longer being available. Most commonly the HRTO has ordered expedited hearings in cases involving children or vulnerable Applicants who require accommodation on an urgent basis. CanLIi reports at least 5 cases in 2024 and 2023 in which the HRTO ordered that Applications be expedited, all involving Applicants who were children. Given the backlog of cases, and the concomitant delay in Applications proceeding to hearing, it is highly likely that there will be more cases where the urgency of the circumstances would necessitate the expediting of a hearing in order to ensure that a remedy is still available for the applicant or that irreparable harm is avoided. One only need consider the case of a child whose education is being compromised by the absence of necessary accommodations – the longer the delay in dealing with the case the greater the potential for long term harm for the child. Given that expedited hearings are available to provide a mechanism to avoid irreparable harm, their removal will guarantee that irreparable harm will occur to at least some Applicants whose urgent circumstances would justify an expedited hearing. This is unconscionable. There is simply no justification for removing Expedited Hearings. At the very least, this must remain an option that the Tribunal itself can utilize in appropriate cases.
Conclusion
It is discouraging and disappointing that the HRTO has turned away from its stakeholders and is not willing to provide a transparent and genuine consultation process. Instead of engaging stakeholders in the process of finding improvements, the HRTO has turned inwards. Prior to being moved into Tribunals Ontario, the HRTO had a standing Practice Advisory Committee made up of leading practitioners from both the applicant and respondent side of the bar, including a representative from the Human Rights Legal Support Centre and the Ontario Human Rights Commission. Tribunals Ontario discontinued the HRTO’s Practice Advisory Committee in 2019. The Committee was an effective way for the HRTO to build trust with the practicing bar and with the communities served by the HRTO. Most importantly, the Committee supported the HRTO in identifying and fine-tuning improvements to its rules and processes that all sides could agree on. Given the limited hearing room experience and substantive expertise in the current HRTO adjudicator panel, the discontinuance of the Practice Advisory Committee is most unfortunate, particularly at a time like this, when the HRTO appears to be rushing through amendments to its rules and practices without an appropriate opportunity for public input and feedback.