Ontario Human Rights Code Transitional Provisions: Expedited Hearings under Section 53 (3)

By Jan Borowy

On June 30,2008, Ontario’s new human rights enforcement regime came into effect. Since this date, applications alleging violations of the Ontario Human Rights Code are no longer made to the Ontario Human Rights Commission, but instead are filed directly to the Human Rights Tribunal of Ontario. However, with an estimated 4,000 cases remaining active at the Ontario Human Rights Commission, the question became what to do with these cases? The Code’s transitional provisions enabled complainants to re-file their case with the Tribunal under a new “expedited” process. Since June 2008, the Tribunal has issued over 300 decisions in these new expedited proceedings. These decisions as well as the Tribunal’s Rules for Transitional Applications (“Transitional Rules”) provide a window into this unique enforcement mechanism. What is emerging with this new mechanism is a proceeding that provides a very focused approach to the evidence and arguments relating to human rights claims.

The Transition Options

Complaints that remained unresolved at the Commission before June 30,2008 were considered “transitional applications”. As of June 30, 2008, and as set out in Section 53 of the new Code, there existed two options for complainants whose complaints had not been finally determined, withdrawn, settled or not yet been referred to a hearing.

• Option one enabled the complainant to abandon their Commission complaint and re-file their complaint as an application to the Tribunal. These applications would be dealt with through an expedited process. Pursuant to s. 53(3) of the Code, these new applications were required to be filed at the Tribunal prior to December 31, 2008. Approximately 935 former Commission complainants re-filed their complaints to the Tribunal as an expedited 53(3) application.
• Option two permits complainants to re-file their complaints as applications with the Tribunal to be dealt with through the Tribunal regular hearings process. Under Section 53(5) of the Code, complainants have until June 30, 2009 to avail themselves of this option.

Any outstanding and unresolved complaint that was previously before the Commission which is not re-filed as an application to the Tribunal by June 30, 2009 will be considered closed by the Tribunal.

The Section 53(3) Expedited Process

The new Code provided the statutory mandate for the Tribunal to adopt procedures and practices which in its opinion offered the best opportunity for a “fair, justice and expeditious resolution” of the merits of applications. The Tribunal designed a specialized expedited procedure often called the “53(3) expedited process” in reference to the governing section of the Code. In a Notice to the Community released in May 2008, the Tribunal directed potential 53(3) applicants to consider whether their case was suited to the new procedure. The Tribunal suggested that the new procedure was best suited for cases that did not raise significant public policy issues or complex questions of fact or law; that did not require expert evidence; and that did not involve the addition of more parties or an amended complaint.

The Tribunal’s Transitional Rules reflect a commitment to an expeditious process to fulfill the Tribunal’s statutory mandate in dealing with transitional complaints.

Rule 4 of the Transitional Rules provides the Tribunal with the same wide-ranging discretionary powers it has under its regular Rules to ensure the fair, just and highly expeditious resolution of applications that come before it. Specifically, the Tribunal may do any of the following:

• add or remove a party
• vary or waive the application of the Rules on its own initiative
• defer consideration of an application
• determine and direct the order in which issues will be considered
• define and narrow the issues, limit evidence and the submissions of the parties on any issue
• determine and direct the order in which the evidence is presented
• admit evidence without examination under oath or affirmation
• question a witness in chief or in cross-examination
• require a party to produce any documents, items or things
• make further orders necessary to give affect to an order or direction
• attach terms and conditions to any order or direction, and
• take any other action that the Tribunal determines is appropriate.

Importantly, Section 53 (7) of the new Code provides parties to either a s. 53 (3) or s. 53 (5) application with the right to seek from the Commission any information obtained by it in the course of its investigation of the complaint. This disclosure provision may further assist the parties in identifying the main issues and facts of the alleged violations of the Code.

A. Initial Procedural Matters

A key initial procedural issue that has arisen in 53(3) applications is whether one party has improperly sought to expand the issues or add a party.

Under Rule 3.4 of the Transitional Rules, where a fact or issue is not raised in the application, the response or supplemental materials filed following mediation, the Tribunal may refuse to allow the party to present evidence or make representations unless it is satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

In Williams v. Ottawa Internationals Soccer, 2009 HRTO 48, a case involving an alleged violation of the Code over access to the services of a soccer club, the applicant sought to add the ground of family status. In its interim decision, the Tribunal outlined that such requests are not normally entertained except where to do so is necessary to ensure a fair, just and highly expeditious process for the determination of the application. The Tribunal found that the amendment requested by the applicant was appropriate in the circumstances. There was no prejudice to the respondents in amending the complaint at an early stage of the proceedings. The Tribunal found that the addition could assist the parties in focusing on the ultimate issue in the case and ensure a just, fair and highly expeditious resolution of the dispute.

B. Mandatory Mediation

The Section 53(3) procedure involves two main steps: mandatory mediation and a Case Resolution Conference.

At the mandatory mediation, a Tribunal member seeks to assist the parties to reach a settlement. Mediation discussions are confidential and the content cannot be referred to in Tribunal hearings or in any other proceeding without the consent of all parties and the Tribunal. Respondent corporations or organizations are required to be represented by a spokesperson with the authority to participate in all aspects of the discussions and with the authority to settle any and all issues in dispute.

Where mediation is not successful, the mediator will assist the parties in completing a case management checklist that sets out a timetable for the issuance of documents and the holding of a Case Resolution Conference.

Where one party does not appear for the mandatory mediation or refuses to participate, the Tribunal will consider whether or not this will impede the efficient processing of the application. In such cases, the Tribunal may exercises its authority under Rule 5.14 to issue a case management direction. This is a discretionary power and the Tribunal will assess if the application can be processed expeditiously without requiring attendance at mediation. The Tribunal’s decisions indicate that the mediation step is most often waived. The parties are then directed to complete the case management checklist and to prepare for the Case Resolution Conference. ( For example, see the interim decisions issued in Lewis v. Markham Stouffville Hospital, 2008 HRTO 323; Donovan v. Mountainview Residence, 2008 HRTO 74 and Mathurin v. University of Toronto, 2008 HRTO 422 for the Tribunal’s general approach).

C. Case Resolution Conference - The Expedited Hearing

Where the parties do not settle an application at mediation, the matter is referred to an expedited hearing called a Case Resolution Conference.

Rule 9 of the Tribunal’s Transitional Rules outlines the steps necessary to prepare for the Case Resolution Conference. Among other things, the parties may provide a statement of additional facts following the mediation and prior to the hearing. No later than 20 days prior to the Case Resolution Conference, the parties must serve and file a list of witnesses, witness will say statements, and a list of documents and copies not previously provided to the other party and to the Tribunal.

If translation and interpretation is required at the Case Resolution Conference, the parties must contact the Tribunal directly, in writing, to make these arrangements.

The Case Resolution Conference “will be conducted fairly and in an informal manner in accordance with the powers” set out in the Tribunal’s Transitional Rules”: Rule 9.6. In its information bulletins, the Tribunal has stated that it is committed to a process that is accessible; fair, just and expeditious; responsive to the parties; appropriate to the nature of the case; and appropriate to determine the merits of an application considering the facts and relevant legal principles. The Tribunal will take a direct and active approach to achieve the fair, just and expedited disposition of the matter.

Case Resolution Conferences are scheduled for one day only. An additional day may be scheduled only if the Tribunal member considers that an additional day is necessary. Section 53(3) applications are meant to be expeditious. The parties should not expect many scheduled days of hearing. Any preliminary matters requiring submissions may be dealt with quickly at the start of the Case Resolution Conference.

Parties can expect to have their “day in court” and a hearing of the facts at the core of their human rights claim. However, they should be prepared for a potentially fast-moving and focused procedure. At the Case Resolution Conference, the Tribunal member or Vice-chair will likely take an active role. The Tribunal may direct the parties to narrow their evidence to specific issues or facts. The Tribunal may directly ask questions of the witnesses. The Tribunal may ask that the parties summarize the key issues contained in the application and the Response in a less formal way than a traditional opening or closing argument.

D. Settlements

If at any stage of the proceedings the parties are able to reach a settlement of the matter, the Tribunal requires that the parties submit a signed Tribunal settlement form outlining that the parties have reached a settlement. The parties’ settlement will be governed by section 45.9 of the Code which provides that the settlement is binding and allegations of breaches may proceed to the Tribunal within six months of the alleged contravention. The Tribunal plays a role in enforcing settlements. If it determines that the settlement was contravened it may make any order that it considers appropriate to remedy the contravention.

Challenging the Tribunal’s Decision

A party can challenge a Tribunal’s decision made under the expedited procedure in the same way it can challenge Tribunal decisions made under its regular process: by seeking reconsideration and/or judicial review.

• A party may request reconsideration of a Tribunal decision that is final within 30 days. The Tribunal will determine the reconsideration based on written submissions. The Tribunal will not grant the request for reconsideration unless it is satisfied that there are new facts or evidence that potentially could be determinative and reasonably could not have been obtained earlier; that the party did not receive notice of the proceeding; the decision or order is in conflict with established Tribunal jurisprudence or procedure and involves a matter of general or public importance; or other factors exist that outweigh the public interest in the finality of Tribunal decisions.
• A party may seek judicial review from the Ontario Divisional Court. However, the Court will not overturn the decision merely because it disagrees with it. A very high standard of review is applied by the Courts to the Tribunal’s highly specialized decision-making. Under the new Code, Tribunal decisions will only be quashed and set aside on judicial review if they are found to be patently unreasonable: s. 45.8 of the Code.

Concluding Comments

Overall, parties whose applications are being dealt with through the Tribunal’s s. 53(3) expedited process can expect a highly focused and fast-moving approach to their applications. The same remedies and means of challenging a Tribunal decision are available under the expedited process as under the Tribunal’s regular process. The key difference is the process’ streamlined character. Under this expedited process, Tribunal members require parties to clearly focus their evidence and submissions in order to address alleged Code violations in the most expeditious manner.