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| Kathy Laird |
Equally alarming is the way the HRTO is now dealing with its backlog. Analysis of the Open Data Inventory on the Tribunals Ontario website reveals that an unprecedented 96 per cent of all final HRTO decisions in 2023-24 were “jurisdictional or procedural” dismissals of applications, without the applicant having an opportunity to make oral submissions or attempt mediation. Most of these dismissed applications had been stuck in the HRTO backlog for years. Almost 80 per cent of “jurisdictional or procedural” dismissals are based on a finding that the applicant abandoned the application, but a review of 2024 dismissals based on abandonment reveals the overwhelming majority are applications that were filed by unrepresented applicants three or more years previously. In many cases, it appears that the application was dismissed after the applicant failed to meet a newly imposed filing deadline that seemed to follow years of HRTO inactivity on the file.
What this record proves is that, if a tribunal fails, over multiple years, to effectively move applications towards resolution, it can count on a significant number of applicants giving up or being unable to continue to pursue their claim, especially when the vast majority are not represented by a lawyer. For many applicants, if an application has been stalled for years at the Tribunal, the potential remedies will no longer be meaningful or able to restore them to the position that they would have been in but for the discrimination.
The preamble to Ontario’s Human Rights Code declares that “it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law.” Ontario’s Human Rights Tribunal is now conducting itself in a manner that is contrary to the public policy enshrined in the Code, by allowing delays and backlogs to undercut access to enforcement of the right to live without discrimination.
Background
In May 2022, Tribunal Watch Ontario released a statement of concern about the functioning of the Human Rights Tribunal of Ontario (HRTO) over the previous four years. The statement cited what was then a 90 per cent increase in its case backlog and reported that experienced human rights counsel had begun to question whether the HRTO remained a viable option for clients who have experienced discrimination or harassment.
In January 2023, Tribunal Watch released a second statement. subtitled “What Needs to be Happen,” making a number of recommendations to address the still-growing backlog; the continuing increase in Tribunal-initiated dismissals; and a precipitous drop in the number of substantive discrimination decisions released. The statement called on the Ministry of the Attorney General and Tribunals Ontario to take specific steps to restore the integrity, fairness and effectiveness of its case resolution process. These steps included establishing a specialized adjudicative team to deal with applications in the backlog.
No action has been taken in any of the areas identified by Tribunal Watch in 2023.
HRTO backlog has now doubled even as fewer applications are filed
Today, two years after first raising the alarm, the available data indicates that the timeliness, accessibility and quality of justice at the HRTO have diminished, not improved. The backlog, as reported in its last Annual Report (2022-23), has doubled over the last six years to 9,527, despite a falling number of new applications in each of the preceding three years. For example, in 2022-23, only 3,425 new applications were filed, as compared to 4,577 in 2019-20.
This drop in the number of new applications has continued in 2023-24 and cumulatively amounts to over 2,000 fewer new applications in the years from 2020-21 through 2023-24 when compared to the number of applications filed annually in the period from 2017-18 through 2019-20. This cannot be explained by any drop in the incidents of discrimination or harassment in Ontario. Notably, it is contrary to a well-reported increase in incidents of anti-Semitism and Islamophobia. The fact that fewer Ontarians are turning to the HRTO for remedies suggests that it has lost credibility as an effective body that can address and resolve human rights claims.
HRTO is dismissing twice as many cases without a hearing
Some of the most concerning data now available is with respect to tribunal-initiated dismissals. In 2023-24, the HRTO dismissed over 1,380 applications on “jurisdictional and procedural” grounds, without affording the applicant an opportunity to make oral submissions at a summary hearing, up from 1,124 such dismissals in 2022-23. By way of comparison, in 2017-18, only 700 applications were dismissed on “jurisdictional or procedural” grounds without a summary hearing. This is an increase of almost 100 per cent. Most of these dismissals were precipitated by the HRTO delivering a Notice of Intent to Dismiss or a Request for Additional Submissions to an applicant whose case had been stalled for years in its backlog.
As previously discussed by Tribunal Watch, the Code requires that the HRTO not dispose of cases that are within its jurisdiction without an opportunity to make oral submissions: s. 43(2)1. However, in recent years, the HRTO has significantly narrowed its understanding of its own jurisdiction, allowing it to dismiss, on its own motion, thousands of applications languishing in its backlog, often without even serving the application on the respondent.
Although there are many individual adjudicators and staff at the HRTO who want to deliver a fair and accessible case resolution process, the leadership at Tribunals Ontario appears to be behind the more restrictive interpretation of jurisdiction. Hundreds of decisions use the same language to conflate the question of whether there is jurisdiction to hear a case with the question of whether the written application and any supplementary written submissions demonstrate that the applicant will be able to prove discrimination. According to an undated practice direction, the tribunal has, since January 2021, determined jurisdiction based on a balance of probabilities test, discarding the previous test that required that it be “plain and obvious” that the application was outside its jurisdiction before it could be dismissed without the opportunity to make oral submissions.
However, to state what should be obvious, the HRTO does not lack jurisdiction if an application form, perhaps poorly drafted, does not, on its face, conclusively establish a link between described negative treatment and a claimed Code-protected ground. It is the job of the HRTO to determine if the negative treatment is Code-related. Given the opportunity of a summary telephone hearing, an unrepresented applicant may be able to satisfy an adjudicator that there is evidence to support the claim and a basis to proceed to mediation. In discrimination cases, often the deciding evidence of discrimination will come from the applicant’s oral testimony at a hearing or from documents in the sole possession of the respondent that are only disclosed before a hearing.
Over 80 per cent of applicants are not represented by counsel when they file their applications. The statutory scheme was designed to be accessible to self-represented applicants, with a comprehensive application form that allowed the applicant to “tell their story” in their own words. The Human Rights Legal Support Centre was funded to provide advice and assistance in filing an application, and then representation once mediation and/or a hearing was scheduled. The centre does not have the resources to provide representation to the over 3,000 applicants who file applications annually. In fact, the centre’s funding from the Ontario government has remained basically unchanged since 2008.
In the past, a seemingly weak application would be scheduled for a summary hearing or sent to mediation after a response was filed by the respondent. Now, by requiring the unrepresented applicant to file additional written submissions addressing the legal test for discrimination, the HRTO has created new barriers to an accessible process.
Human rights claimants stuck in the backlog are giving up
Even more alarming than the twofold increase in “jurisdictional and procedural” dismissals — but not surprising — is an almost threefold increase in the number of dismissals based on abandonment between 2017-18 and 2023-24. In 2017-18, only 374 applications were dismissed as abandoned; in 2023-24, there were 1,083.
A review of dozens of dismissals based on abandonment reported on CanLii since January 2024, demonstrated that a significant majority of dismissed applications were filed in 2020 or earlier. A typical scenario in these dismissal decisions involved an applicant who filed in 2019 and whose application became stalled in the HRTO process for months and years at a time, until receiving either a Notice of Intent to Dismiss or a Case Assessment Direction requiring written submissions on jurisdiction by a deadline. In most cases, the dismissal decision is based on a deemed abandonment after the applicant fails to meet the deadline to file additional material. In many cases, the applicant does not respond at all to the HRTO communication and may or may not have received it. In almost every case, the applicant is not represented by counsel. When additional written submissions are filed by unrepresented applicants, they are almost always dismissed as inadequate.
When, as here, a tribunal leaves applications languishing in its backlog for years at a time, it is not surprising that many applicants, particularly if not represented by counsel, will fail to respond positively or effectively, or often at all, to a newly imposed deadline to file additional materials.
Very few applications make it to a hearing to decide if discrimination has occurred
In 2023-24, the HRTO released 40 final substantive merit decisions, up from 33 decisions the year before and 16 in 2021-22. But annual reports for the five years before the HRTO was moved into Tribunals Ontario show that the Tribunal was issuing an average of 110 final substantive decisions annually.
Only four in-person “hearing events” are reported to date for the 2023-24 fiscal year, compared to 1,342 electronic hearing events. Although it is unclear what a “hearing event” is — it is not defined — it appears that the HRTO has almost entirely abandoned an in-person format, even for full evidentiary hearings.
There are also substantially fewer interim decisions: in 2017-18, the HRTO issued 743 interim decisions; in 2023-24, it issued only 246 interim decisions. This drop by more than 66 per cent corroborates the comments by many counsel to the effect that it is impossible to get a ruling from the HRTO on an interim request or motion.
Conclusion
In 2008, amendments to the Code gave Ontarians a reformed human rights system that, for the first time, allowed people who believed that they had experienced discrimination to have direct access to mediation and adjudication at a new human rights tribunal. The legislation enshrined an accessible dispute resolution system, designed to facilitate participation by self-represented parties. It was assumed, correctly, that most applicants would be self-represented when they filed their applications, and the statute guaranteed the right to make oral submissions before an application within the tribunal’s jurisdiction could be dismissed.
The legislation has not been amended. But today, the accessibility promised by those reforms appears to be largely undermined by the HRTO itself, through a restricted view of its own jurisdiction, that has supported the dismissal of thousands of discrimination claims, applying a newly adopted balance of probabilities test. The ramped-up number of HRTO-initiated dismissals has led to suggestions that the HRTO puts more effort into auditing its backlog looking for weakly drafted applications, vulnerable to dismissal, than in moving cases appropriately forward to a merits hearing. The enormous increase in “jurisdictional and procedural” dismissals since the HRTO was moved into Tribunals Ontario, and the deep drop in the number of substantive merit decisions seem to corroborate these criticisms.
There is something deeply wrong at a human rights tribunal when its backlog increases twofold, despite a significant drop in incoming cases; when 96 per cent of final decisions are no-hearing dismissals, mostly of ageing cases in a multiyear backlog; when the great majority of those dismissals are because the applicant has given up after long periods of HRTO inactivity on their file; and when only 2.7 per cent of all final decisions are substantive decisions after full consideration of the evidence of the parties.
Tribunal Watch Ontario asks: When will the Ontario government take effective steps to address the access to justice crisis at the Human Rights Tribunal?
A member of Tribunal Watch Ontario, Kathy Laird is a retired human rights lawyer and former counsel at the Human Rights Tribunal of Ontario. She is the former director of the Advocacy Centre for Tenants Ontario and the Human Rights Legal Support Centre.
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