New HRTO Practice Direction on Jurisdiction Must Be Reconsidered
Earlier this year, the Divisional Court of Ontario found that procedures adopted by the Human Rights Tribunal of Ontario (HRTO) to determine its jurisdiction were unreasonable and contrary to law.
In May 2026, the HRTO issued a new draft Practice Direction to guide HRTO adjudicators in how to determine jurisdiction. As drafted, the Practice Direction demonstrates that the HRTO needs to more carefully review and understand the Court’s direction because it continues to endorse an approach that the Court found was unreasonable.
The Divisional Court decision is Bokhari v. Top Medical Transportation Services, 2026 ONSC 1073 (Bokhari). The Court made three main findings about the Tribunal’s approach to how it determines if it has the jurisdiction to deal with an application:
- The Tribunal cannot determine jurisdiction on a balance of probabilities. The traditional and correct approach is to accept jurisdiction unless it is “plain and obvious” that the Tribunal does not have jurisdiction to deal with a case.
- It is improper to determine jurisdiction on the basis of a preliminary analysis of the merits of the case based on written filings.
- Based on the decision before the Court, the Tribunal failed to understand how a human rights case should be analysed.
The draft Practice Direction re-instates the “plain and obvious” standard. It sets out examples of cases where it may be plain and obvious that the Tribunal lacks jurisdiction, such as it relates to a federal and not a provincial undertaking, for example.
However, the draft Practice Direction then states:
Another common jurisdictional problem is that the Application does not plead any facts which could constitute discrimination under the Code. In some cases, this is because the Application does not explain how the respondent did something, or failed to do something, that harmed the applicant or negatively affected their interests. In other cases, the Application does not explain how the applicant’s Code grounds may have been a factor in the adverse conduct of the respondent.
This statement confuses situations that are quite different. It is correct to say that the Tribunal may have no jurisdiction if the applicant does not identify a Code-related basis for the Application – for example, if the applicant alleges “I was unfairly fired” and does not identify a Code-related basis for the firing. However, if (like the applicant in Bokhari), the applicant alleges “I was unfairly fired because I am disabled (or because of any of the other Code-protected characteristics)”, the applicant is asserting discrimination under the Code. The purpose of the Human Rights Tribunal is precisely to deal with such cases.
However, the draft Practice Direction advises Tribunal adjudicators to consider whether there are “facts” that support the allegation of discrimination, and whether the applicant has adequately established that their Code-protected characteristic was a factor in the unfair treatment.
The first and most obvious problem with this approach is that it necessarily involves an assessment of the merits of the case to determine if the Tribunal has jurisdiction, which is exactly what the Court in Bokhari said should not happen.
A second problem is that it may be difficult for the applicant, especially a self-represented applicant, to identify “facts” that might satisfy the Tribunal. It is rare, for example, for an employer to say in writing “I am firing you because of your disability (or any other Code-protected characteristic)”. Discrimination is often subtle, and a successful case will often turn on circumstantial evidence alone.
In addition, the applicant may not have access to the evidence or “facts” that would establish discrimination. This may especially be the case in cases of alleged discrimination because of race. As the Ontario Court of Appeal noted in Peel Law Association v. Pieters, 2013 ONCA 396 (at paragraph 72):
The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.
The fact that the Tribunal screens cases at a preliminary stage and its insistence that applicants provide “facts” to support allegations of discrimination indicates a troubling failure to understand the components of a proper human rights analysis. As Bokhari makes clear, it is especially improper to do this in a written process in the guise of a jurisdictional analysis.
Allegations of discrimination that do not include sufficient facts to satisfy the Tribunal are now typically dismissed on the grounds that the applicant has made only a “bald assertion”. There appears to be approved boiler-plate language such as the following:
To fall within the Tribunal’s jurisdiction, an applicant must provide some factual basis beyond a bald assertion which links their ground(s) to the respondent’s actions and explains why they think that these actions are discriminatory in nature. […] A bald assertion that the adverse treatment they received was owing to their enumerated ground is not enough to provide the required factual basis.
It is clear from the requirement that the applicant establish a “factual basis” that the Tribunal is considering the merits of the case; it is considering the likelihood that the applicant will be able to prove their case. Bokhari unequivocally explains that this is not a proper basis to determine jurisdiction. The only question the Tribunal should be asking is if it is plain and obvious that the Tribunal does not have jurisdiction.
Dismissals at a preliminary stage because of the applicant’s inability to provide sufficient “facts” were not isolated instances. In Bokhari, the Court heard that the Tribunal developed a new “protocol” authorizing an analysis of the merits of the case as part of a jurisdictional determination in January 2021. Bokhari was released on February 20, 2026.
A search on CanLII reveals that between January 2021 and February 20, 2026, 1076 cases were dismissed based on the “bald assertion” language.
It is apparent that Bokhari has not led to any change in approach. In the period between February 20, 2026, when Bokhari was released and the writing of this report in June 2026, 57 more decisions have been dismissed on the same “bald assertion” basis. Other cases were likely similarly dismissed without the bald assertion language.
It is also important to note that the improper shift of consideration of the merits of the case to the jurisdictional analysis stage helps explain the very high rate of abandonment at the HRTO. Self-represented applicants, who comprise over 80% of applicants, often just give up when asked to provide “facts” to support their allegations. (See The Rise of Abandonment Dismissals at the HRTO, published in the Journal of Administrative Law and Practice).
As the Court noted in Bokhari, confining a jurisdictional analysis to whether it is plain and obvious that the Tribunal lacks jurisdiction does not mean that every case must proceed to a full hearing on the merits of the case.
The Tribunal’s Rule 19A authorizes the Tribunal to hold a summary hearing to determine if an application should be dismissed in whole or in part because there is no reasonable prospect it will succeed. At a summary hearing, typically held by tele or video conference, the applicant has an opportunity to orally explain the basis of the application and identify the evidence that they have available or that they anticipate will come from the respondent.
At that point, the Tribunal may legitimately assess the merits of the case and dismiss the case if it feels that the case has no reasonable prospect of success. The Court has found the summary hearing to be “a responsible and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing applications that might reasonably succeed”: Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840.
In deciding that a case should be dismissed as non-jurisdictional at a very preliminary stage because of insufficient “facts” in the application or in written submissions, the Tribunal is inappropriately introducing a merits analysis that is only appropriate after an oral summary hearing.
There can be little doubt that the main reason the Tribunal moved an assessment of the merits to the jurisdictional determination stage is so that it does not have to hold an oral hearing. Section 43(1) of the Code provides that
An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.
The Courts have found that the Tribunal is not required to give an opportunity to make oral submissions when it determines its jurisdiction. By assessing the merits of the case under the guise of a jurisdictional analysis, the Tribunal is able to avoid even the limited resources involved in a summary hearing.
The statutory protection that was intended to avoid dismissal of a case without the opportunity to make oral submissions was a very important aspect of the design of the current “direct access” model. It addressed the concern that self-represented applicants would be unable to address complex legal and jurisdictional issues in writing without the support of the Human Rights Commission, which had carriage of applications under the previous model.
In conclusion, while the Tribunal may assert that it is following the direction of the Court, the draft Practice Direction indicates that it intends to continue to assess the merits of cases in the guise of a jurisdictional determination. The Tribunal must discard the draft Practice Direction on Jurisdiction and instead make it clear that the only appropriate question when considering if the Tribunal has jurisdiction to deal with a case is if it is plain and obvious that it does not have jurisdiction and that this assessment should not involve an assessment of the merits of the case.
It is often the case that an adjudicative process that involves an assessment of the merits of the case leads to a dismissal of the application on the grounds that while the applicant may have experienced unfair treatment, it was not because of a Code protected characteristic. Decisions of this sort may note that the Tribunal does not have jurisdiction to remedy unfair treatment. This reflects the Tribunal’s remedial powers after an adjudicative process. It does not mean that the Tribunal can refuse to accept jurisdiction at a preliminary stage because it is not clear how the applicant will be able to prove the case. In fact, the very purpose of the Tribunal is to determine whether alleged discrimination or harassment has occurred. In doing so it must establish procedures that are fair and principled as it is required to do by section 41 of the Code:
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
By directing adjudicators to continue to assess the merits of the case at a preliminary stage, the draft Practice Direction perpetuates a process that may be expeditious, but is neither fair nor just and ignores the clear direction of the Court.