Ontario Bar Association calls for ‘meaningful’ consultation on HRTO rules of procedure changes

The Ontario Bar Association has made a submission to the Human Rights Tribunal of Ontario in response to proposed changes to the tribunal’s rules of procedure.

The association said that it welcomed the push to streamline HRTO processes in order to resolve cases fairly, justly, and quickly; however, there was not enough time to provide “meaningful” feedback. Moreover, the details given on the amendments were inadequate.

The bar association’s submission to the HRTO focused on the following areas:

• The necessity for in-depth consultation
• Clarity regarding the proposal to eliminate case management conferences and summary hearings
• An explanation why requests for orders during proceedings should be limited
• Details on why access to expedited hearings and interim remedies should be removed
• Clarity regarding the implementation of mandatory mediation

Inadequate time and information for consultation

The Ontario Bar Association pointed out in the submission that a two-week consultation period was not adequate for organizations to be able to provide “substantive and thoughtful” feedback on the proposal. Moreover, the consultation published by the HRTO consisted of bullet point summaries of the amendments.

These summaries often highlighted the intended results while lacking red-line language or consultation documents; an example provided by the association was how a bullet point indicated that a change would simplify a process, but did not elaborate on what the pitched amendment was. Thus the Ontario Bar Association recommended that the HRTO provide a redline version of the proposal as part of a consultation document; this consultation should also offer the context, background, and rationale for the changes.

Lack of clarity on the need to eliminate CMCs, summary hearings

The association also noted that the HRTO did not clarify how eliminating CMCs and summary hearings would be a benefit. The tribunal indicated that these proceedings did not efficiently resolve applications; however, it did not explain how similar functions would be covered by replacement processes.

The Ontario Bar Association pointed out that CMCs helped the HRTO to concentrate on issues and progress cases efficiently, while summary hearings aided in eliminating core legal concerns important to the file and could result in a hearing not being necessary. Doing away with CMCs and summary hearings could result in increased costs and decreased efficiency for parties, the association said. Moreover, the association questioned what would happen if the tribunal concluded that certain cases were not under their jurisdiction.

No explanation regarding limits on requests for orders during proceedings

The Ontario Bar Association pointed out that no explanation was provided as to why requests for orders during proceedings should be limited; nor was it explained how this amendment would benefit either the tribunal or parties. Nor did the HRTO pitch the limits to be set.

If implemented together with the elimination of CMCs and summary hearings, the association warned that parties could be forced to attend full hearings on issues that could otherwise be resolved or refined without the need for a full hearing.

No details on why access to expedited hearings and interim remedies should be removed

The Ontario Bar Association pointed out that the sole explanation given for this proposed change was that it would “support a streamlined hearing process,” without specifying how eliminating these processes would bolster efficiency. The association highlighted the importance of interim remedies particularly in relation to matters involving accommodations in an educational setting; the association cautioned that removing this process could be harmful especially if expedited hearings were also eliminated.

Lack of clarity regarding the implementation of mandatory mediation

The Ontario Bar Association noted that mediation was not always appropriate; for instance, in cases of sexual violence, violent incidents related to a Code ground, or cases where there was a considerable power imbalance. The association said that moves to make mediation mandatory should be coordinated with the Human Rights Legal Support Centre to positively impact mediations and improve the tribunal’s efficiency.

Members of the bar association’s Constitutional, Civil Liberties, and Human Rights Law section prepared the submission, which was then evaluated by members of the Labour & Employment Law section. The members of these sections bring significant experience with HRTO proceedings and have acted for both applicants and respondents.