The amendments to the Ontario Human Rights Code (the “Code”) which came into force in 2008, have brought
about significant changes to the way in which human rights complaints are adjudicated in Ontario. Today,
approximately six years after the amendments were brought into force, the number of complaints filed with the
Human Rights Tribunal of Ontario (the “Tribunal”) remains consistently high, especially with respect to
employment. In the 2012/2013 fiscal year, the Tribunal received 2,837 applications and 77% of those
applications arose in the context of employment.1
The low cost associated with filing an application, the significant number of self-represented litigants
commencing applications, together with other amendments to the Code, have resulted in what for employers is
sometimes an unpredictable and frustrating process. The outcome of the hearing of an application is becoming
increasingly difficult to predict and, at times, it seems as though the playing field is constantly shifting.
This paper will address recent developments in the Tribunal’s procedure and highlight areas of concern by
undertaking a review of the entire application process, from responding to an application to the final decision
from the Tribunal. In doing so, we will focus specifically on the lack of a screening process and automatic
hearings, inconsistent mediations, increasing awards, and cost recovery options (or rather, the lack thereof).
2. The Beginning: Responding to the Application
Under the current human rights regime in Ontario, individuals file applications directly with the Tribunal as
opposed to first having a complaint vetted through the Ontario Human Rights Commission. The Commission’s
role in the complaint process was eliminated in 2008 when the amendments to the Code came into effect.
When it was involved in the process, the Commission frequently encouraged the naming of individual
respondents and would rarely dismiss complaints before adjudication.
Now, when an application is made, the application is first vetted by the Tribunal - not for prima facie cases of
discrimination - but for completeness. When an application is made, each respondent to the application is
required to file a response, and all parties are required to include: i) a list of important documents which they
have in their possession, which are in the possession of the other party, and/or which are in the possession of a
third party; and ii) a confidential list of witnesses.
As with most litigation, proceedings before the Tribunal can be expensive and the lack of a cost recovery
mechanism in the human rights regime means that employers may be spending money to respond to frivolous
or baseless claims without any chance of recovery. There are, however, a number of ways to narrow the issues
in an application before the Tribunal, or come to have it dismissed early in the process, including:
Requesting a dismissal because the applicant’s failure to bring the Application within the time limit;
Requesting the removal of personal respondents;
Requesting a deferral or dismissal as a result of parallel proceedings;
Requesting a summary hearing; and
Requesting a dismissal for failure to comply with a Case Assessment Directions (“CAD”).
1 The Human Rights Tribunal of Ontario, Statistics: Fiscal Year 2012-2013, available online: http://www.hrto.ca/herto.
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When faced with a human rights application, employers should first consider whether the application is timely
and was brought within the applicable time limit. Pursuant to section 34 of the Code, applications must be
brought within one year after the incident occurred, or one year after the last incident occurred in a series of
incidents.2 However, the Tribunal has the discretion to allow late applications if “the delay was incurred in good
faith and no substantial prejudice will result to any person affected by the delay”.3
The Tribunal has been very restrictive with allowing applications to be commenced beyond the limitation period.
For example, the Tribunal has refused to allow an application where it was untimely by only six days.
The Tribunal has noted that there is a “fairly high onus on applicants to provide a reasonable explanation for the
delay”.4 While the exact standard will largely depend on the facts of the case, it appears to be “something more
than simply an absence of bad faith.”5
Removing Personal Respondents
One of the most discouraging aspects of the old regime was the Commission’s practice of encouraging
complainants to name personal respondents. When making complaints under the old system, employees often
named co-workers, supervisors, and managers as parties to the complaint. This was particularly concerning
given that, more often than not, these individuals were simply acting in the course of their employment and were
therefore unnecessarily subjected to the stress of defending the complaint. The fact that the complaints often
took years to resolve also placed a disproportionate amount of stress on named respondents. Often, employers
would take on the expense of obtaining legal counsel for the individuals along with the company. This practice,
coupled with the lack of a cost recovery mechanism, resulted in substantial legal costs even when the claim was
Under the new system, applicants remain permitted to name personal respondents. However, the Tribunal’s
Rules of Procedure, (the “Rules”) provide a mechanism for objecting to the inclusion of an individual respondent.
Under Rule 14(b) respondents can make interim requests to have individuals removed from the proceedings.
Furthermore, the Tribunal’s Informational Bulletin dealing with personal respondents states:
…if the individual was acting in the regular course of their employment or duties, you may not need to
name the individual as a separate respondent in addition to the organization.”6
While this is far short of an outright prohibition on naming individual respondents who were simply acting in the
course of their employment, the Tribunal is certainly not encouraging applicants to name personal respondents.
2 Human Rights Code, s 34(1) [Code].
3 Ibid, s 34(2).
4 Imrie-Howlet v Peel District School Board, 2009 HRTO 1399.
5 Brissett v Loblaw’s Real Canadian Superstore, 2013 HRTO 478.
6 Human Rights Tribunal of Ontario, Informational Bulletin: Naming Respondents.
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Upon receiving an interim request to remove a personal respondent from an application, the Tribunal will
consider whether the removal would interfere with the expeditious nature of the proceeding. Many of the same
principles that are applied in determining whether to add a respondent will be applicable in determining whether
to remove one.7 In Persaud v Toronto District School Board, the adjudicator set out a non-exhaustive list of
factors for the HRTO to consider when determining whether to remove an individual respondent:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of
the personal respondent who sought to be removed?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged
Does any compelling reason exist to continue the proceeding as against the personal respondent, such
as where it is the individual conduct of the personal respondent that is a central issue or where the
nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy
specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?8
A final question to be considered is “whether it is necessary to involve this person as a party in order to have a
fair, just and expeditious resolution of the merits of the complaint.”9
The Tribunal has removed personal respondents in a variety of different contexts including where it is alleged
the corporate employer is liable for the same conduct, where the corporate employer is in a position to respond
to the application, and where the applicant fails to persuade the Tribunal that the removal of the personal
respondent would result in prejudice.10
While the Tribunal permits a personal respondent to apply for an interim request to remove the personal
respondent as a party to the proceeding, in some cases, the Tribunal will not adjudicate these requests until
after the parties have proceeded to mediation; and, in other cases, will not adjudicate the interim request until
the application is being decided on its merits at the final hearing.
Deferral or Dismissal as a result of Prior Proceedings
Under the Code, the Tribunal has the power to defer or dismiss applications where another proceeding is
currently dealing with, or has previously dealt with, the allegations contained in the application.11 The existence
of other proceedings does not result in an automatic dismissal; rather, the Tribunal will consider the following
non-exhaustive set of factors when determining whether a request should be granted:
The subject matter of the other proceeding;
The nature of the other proceeding;
7 Persaud v Toronto District School Board, 2008 HRTO 31 at para 4.
8 Persaud v Toronto District School Board, 2008 HRTO 31 at para 5.
9 Ibid at para 5.
10 Dioba v Toronto Public Library, 2009 HRTO 31 at para 5.
11 Code, supra note 2, s 45, 45.1, respectively.
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The types of remedies available in the other proceeding; and
Whether it would be fair overall to the parties to defer, having regard to the status of each proceeding
and the steps that have been taken to pursue them.12
There is an obvious difference between the dismissal and deferral of an application where another proceeding
has dealt, or is dealing with, the substance of the application. The Tribunal may dismiss an application where
another proceeding had “appropriately dealt with the substance of the application”13 and the applicant will not be
permitted to proceed with the application. Where another proceeding has appropriately dealt with part of the
substance of the application, the Tribunal may proceed to dismiss those allegations that have already been
dealt with by the other proceeding.
On the other hand, a deferral will result in the application being placed in abeyance until such time as the
Tribunal directs the parties to resume the application or dismisses it. The purpose of deferring an application is
to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility
of inconsistent decisions on fact or law.14
While the decision to grant a deferral is largely fact specific, a deferral is often granted where there are
administrative proceedings that are parallel to the proceeding before the Tribunal.
Where the other proceeding does not deal with substantially the same issues as those raised in the application
and does not allow for remedies similar to those awarded by the Tribunal, the Tribunal is likely to defer the
Three common situations where an employer will request the dismissal or deferral of an application are where
there have been or are concurrent grievance arbitration proceedings, proceedings under the Ontario
Employment Standards Act, 2000 and proceedings under the Workplace Safety and Insurance Act, 1997.16
Generally, where the request for deferral is because the substance of the application is currently the substance
of a labour arbitration grievance and the parties are actively pursuing the grievance through the grievance
procedure, the Tribunal is often inclined to defer the application. Whether the Tribunal will grant a request for
deferral or dismissal because either the Ministry of Labour or the Workplace Safety and Insurance Board have
dealt with all, or a part of, the substance of the application depends on the specifics of the proceeding. In most
cases, the more facts and issues that are parallel between the proceedings, the more likely the Tribunal will
dismiss or defer the application pending resolution of the other proceeding.
An additional way to narrow the issues or combat the problem of unmeritorious claims is through the summary
hearing process. The Tribunal recently established this process in 2010 through an amendment to the Tribunal’s
Rules.17 Rule 19A provides for the summary hearing process and it states in part:
12 Klein v Toronto Zionist Council, 2008 HRTO 189.
13 Ibid, s 45.1.
14 Hannis v Blackadar Continuing Care Centre, 2013 HRTO 2105 at para 6.
15 See for e.g., Legrad v Primary Response, 2009 HRTO 337 at para 6
16 See ibid at para 8 for a discussion about deferral to claims under the Workplace Safety and Insurance Act. In choosing to defer to the
Workplace Safety Insurance Board (“WSIB”), the OHRT has recognized the specialized expertise it has in the area of disabilities.
17 Rule 19A of the Human Rights Tribunal of Ontario’s Rules of Procedure
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19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the
question of whether an Application should be dismissed in whole or in part on the basis that there is no
reasonable prospect that the Application or part of the Application will succeed.
The purpose of a summary hearing is to encourage early resolution of issues with no reasonable prospect of
success (i.e. where the claim is frivolous or without merit). The Tribunal encourages respondents to make these
requests as soon as possible after the application is filed.18 The Tribunal reviews the request with a view to
determining whether to schedule the summary hearing. In addition, the Tribunal has the power to order a
summary hearing on its own initiative without first being prompted by a party.
Under Rule 19A, the Tribunal may dismiss all or part of the complaint if there is “no reasonable prospect that the
application will succeed.”19 The Tribunal’s leading decision regarding summary hearings is Dabic v Windsor
Police Service20 which sets out the test a summary hearing succinctly:
 In some cases, the issue at the summary hearing may be whether, assuming all the allegations in
the application to be true, it has a reasonable prospect of success. In these cases, the focus will
generally be on the legal analysis and whether what the applicant alleges may be reasonably
considered to amount to a Code violation.
 In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect
that the applicant can prove, on a balance of probabilities, that his or her Code rights were
violated. Often, such cases will deal with whether the applicant can show a link between an event and
the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable
prospect that evidence the applicant has or that is reasonably available to him or her can show a link
between the event and the alleged prohibited ground.
 In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive
to the fact that in some cases of alleged discrimination, information about the reasons for the actions
taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for
actions taken by a respondent may sometimes come through the disclosure process and through crossexamination
of the people involved. The Tribunal must consider whether there is a reasonable prospect
that such evidence may lead to a finding of discrimination. However, when there is no reasonable
prospect that any such evidence could allow the applicant to prove his or her case on a balance of
probabilities, the application must be dismissed following the summary hearing.21
In short, the issue will be whether the assertions in the application amount to a Code violation. First, the
applicant must establish that, assuming all of the facts and allegations contained in the application are true, the
application establishes a violation of the Code. Second, if the application clearly establishes a violation of the
Code, the applicant must be able to demonstrate that they are capable of proving the allegations in the
application. If the applicant is not able to meet these two criteria, the applicant will fail to establish a prima facie
case of discrimination, the application will be dismissed.
18 Ibid; the HRTO notes that requests for summary hearings filed after the full hearing has been scheduled will rarely be granted.
19 Human Rights Tribunal of Ontario, Information Bulletin, Summary Hearings.
20 2010 HRTO 1994.
21 Dabic v Windsor Police Service, 2010 HRTO 1994 at paras 8-10.
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An example of a summary hearing arose in the Tribunal’s 2013 decision, Klumpenhouwer v Lowe’s Companies
Canada, ULC. In this case, the applicant, a newly hired employee, was found to have smoked marijuana while
staying overnight in a hotel for training. The applicant admitted that he smoked marijuana and his employment
was subsequently terminated. Following the termination of his employment, the applicant filed an application
with to the Tribunal alleging that his employer had discriminated against him on the basis of race, colour and
disability. While the applicant abandoned most of the allegations contained in his application during the
summary hearing, he maintained that he was addicted to marijuana and his addiction constituted a disability.
Because the applicant admitted that he was addicted to marijuana, the Tribunal refused to dismiss the
application on the basis that it had no reasonable chance of success. That being said, the applicant was
required to produce medical documentation and evidence that would establish his disability or the application
may be dismissed.22 Ultimately, the applicant failed to produce the requisite medical documentation or to comply
with subsequent Case Assessment Direction, and the application was dismissed.
Summary hearings are quicker, more flexible, and less expensive than final hearings on the merit of the
application. Summary hearings are often held by way of teleconference, which evidences the informal, less triallike
form they can take.23 For these reasons, a summary hearing can be a valuable tool for narrowing the issues
and even disposing of claims early on in the process.
Failure to Comply with Case Assessment Directions
During the course of a proceeding, the Tribunal may issue a CAD regarding procedural matters and with respect
to other issues. CADs are governed by Rule 18 of the Rules. Rule 18 enables the Tribunal to issue CADs which
can address “any matter that, in the opinion of the Tribunal, will facilitate the fair, just and expeditious resolution
of the Application…”24 Often, CADs will set out certain documents or evidence that the applicant or respondent
is required to produce to the Tribunal. If the applicant fails to abide by any directions in a CAD, the Tribunal may
dismiss the application.
A recent decision provides an illustrative example. In Tahir v Indigo Books & Music Inc., the applicant brought a
complaint alleging discrimination with respect to employment because of disability. The applicant was engaged
in parallel proceedings before the WSIB and the Tribunal requested that the applicant provide certain
documentation related to the proceedings. The applicant ignored repeated deadlines provided for in the CADs.
The Tribunal issued a notice that the requested documents had to be provided by a date that was only two days
before the scheduled summary hearing, or the application may be dismissed as abandoned. The applicant failed
to comply with the CAD and the Tribunal ultimately dismissed the application as abandoned.
These pre-hearing procedural rules provide opportunities for a respondent to dismiss or narrow the allegations
and issues contained within the application and ought to be considered part of the overall strategy to defend the
3. The Mediation Stage
While mediation is not mandatory at the Tribunal, it is strongly encouraged and most respondents agree to
mediation. (Although this may be because the Tribunal’s Forms only allow a “yes” answer to the question of
whether the parties agree to participate in mediation.)
22 2013 HRTO 330.
23 Human Rights Tribunal of Ontario, Information Bulletin, Summary Hearings.
24 Rules, s 18.1.
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The purpose of the mediation is canvass whether there are any opportunities for the parties to discuss a
settlement of the application, and if the mediation is not successful, to attempt to narrow the issues before the
hearing and determine how many days of hearing will be required.
Employers ought to consider whether resolving complaints before reaching the hearing stage is feasible (both
from an economic and principled standpoint) for a number of reasons:
The time and expense of going through the hearing process;
The unpredictability evidenced by recent decisions of the Tribunal;
The removal of the cap on the damage award and the increasing amounts of damages awarded; and
The lack of a cost-recovery mechanism.
In our experience, the mediator is not agreed-to by the parties, rather the mediator is appointed by the Tribunal.
According to the Tribunal’s Rules, the mediation is supposed to be conducted by an adjudicator of the Tribunal.
However, there are often mediators assigned who are not adjudicators from the Tribunal but instead are
lawyers, officers from the Ministry of Labour or full-time mediators. In the event that the mediation is
unsuccessful, the adjudicator will not be assigned to decide the hearing of the application on its merits. The
mediation is a “without prejudice” proceeding and everything discussed and disclosed at mediation remains
confidential and cannot be used or relied upon at any subsequent stage of the proceeding.
Unlike some mediations, at the Tribunal, the applicant and the respondent are separated at all times during the
course of a mediation. In most cases, there is no opportunity for the applicant and the respondent to meet faceto-
face and to highlight each party’s respective position. Similarly, the parties are not required to exchange
mediation briefs or statements of issues to highlight the strengths of their case and/or the other party’s weak
points. The parties go into the mediation without knowing each other’s position or approach to the mediation,
except what is set out in the application and response forms.
The mediation can be highly unpredictable. Much of the successfulness of the mediation will depend on the
applicant and whether the applicant comes prepared to reasonably discuss settlement. Many applicants are now
self-represented litigants - in fact, 77% of the applicants in the Tribunal’s 2012/2013 fiscal year were selfrepresented
- which often poses a problem for the mediator. Because many applicants are not represented by
legal counsel, respondents rely very heavily on the mediator to educate and influence the applicant. As a result,
the type of mediator is very important. If the parties are assigned a mediator who is effective, highlights the
weaknesses in each party’s case, educates the applicant and proposes creative solutions, the mediator may
assist the parties to a successful resolution. However, if the parties are assigned a mediator who cannot or does
not seek to guide the applicant, does not effectively outline the weaknesses of the applicant’s case, and inflates
the applicant’s ideas regarding monetary damages, it is less likely that the parties will reach a successful
The most effective way to prepare for the mediation is to know your case: both its strengths and its weaknesses.
If you have documents or evidence which support a crucial argument to your case, consider bringing them to the
mediation and disclosing them to the mediator.
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Finally, the mediation is a great place to try to be creative where appropriate. Consider both monetary and nonmonetary
solutions. For example, if an employee is claiming discrimination on the basis of disability because, in
their view, they have not been supported in their return to work, consider whether a return to work is appropriate
in the circumstance. If the employee is truly disabled and claiming discrimination on the basis that there is no
modified work for that employee, consider whether an application for long-term disability benefits could be
made. Another example is with respect to monetary settlements, consider whether a portion of the settlement
can be allocated as “general damages” on account of a claim for discrimination under the Code - this allows the
applicant to receive the money on a “tax-free” basis and may encourage the applicant to settle for less.
4. The Hearing
If an application is not disposed of through an interim order or does not settle during or after the mediation, the
application will proceed before an adjudicator for determination at a final hearing.
Some recent decisions provide illustrative examples of just how unpredictable the Tribunal can be with respect
to its decision-making and awards.
Unpredictable and Increasing Damages Awards
Marking the largest award to date, the Tribunal in Fair v Hamilton-Wentworth District School Board25 reinstated
an employee whose employment was terminated and awarded the employee $419,283.89 in damages
representing nine years of back pay, plus retroactive pension contributions, compensation for negative tax
consequences, and $30,000 in general damages.
In the Fair case, the applicant received long-term disability benefits for three years, at which time she was
deemed capable of returning to work. The employer alleged that there was no suitable position in which the
employer could accommodate the employee and her employment was subsequently terminated. The Tribunal
ultimately determined that the employer should have exercised more effort to try to find her suitable
accommodation and ensure she could return to work.
The damages awarded by the Tribunal were unprecedented. By awarding approximately nine years of damages
for loss of income, the Tribunal far exceeded the typical “cap” of 24 months’ damages that we see in the context
of wrongful dismissal actions. The Tribunal’s decision is currently under judicial review.
The Tribunal has also tended toward an increase in award of general damages for injury to dignity, feelings and
self-respect. Although an extreme example, the Tribunal recently ordered $40,000 in damages for injury to
dignity, feelings, and self-respect26 where an applicant was found to have been repeatedly subject to sexual
assault, unwanted touching and inappropriate, derogatory comments by her employer such that the applicant
eventually resigned from her employment as a result of the conduct. While the award of general damages is
directly connected to the egregious conduct of the case, employers ought to be aware of potential large general
damage awards for injury to dignity, feelings, and self-respect.
25 2013 HRTO 440.
26 MK v […] Ontario, 2011 HRTO 705.
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The general damages awarded by the Tribunal for injury to dignity, feelings and self-respect in employment
cases vary quite significantly. For example, in the 2013 calendar year, the Tribunal awarded general damages
ranging from $1,000 up to $40,000.
Civil Claims under the Code
In 2008, the Code was amended to enable individuals who commence civil litigation in the Superior Court to
allege claims of discrimination contrary to the Code. A decision of the Ontario Superior Court of Justice in 2013
was the first decision of the Superior Court of Justice to award a remedy on account of human rights damages.
In Wilson v Solis Mexican Foods Inc., the plaintiff alleged wrongful dismissal and claimed human rights
damages on account of a disability. The plaintiff had worked for the defendant for 16 months as a general
accountant and alleged that her employment was terminated, at least in part, because of a back ailment. The
court ultimately awarded the Plaintiff $20,000 of general damages for breach of the Code.27
Duty to Accommodate
Recently, the Tribunal’s jurisprudence appears to indicate that the traditional thinking with respect to
accommodation of family status has changed. Typically, in considering the parent-child relationship with respect
to family status, our minds are trained to consider child-care obligations. However, increasingly, applicants are
claiming family status with respect to the care of a parent. For example, in Devaney v ZRV Holdings Ltd, the
Tribunal held that the employer had a duty to accommodate a flexible work schedule to enable the applicant to
take care of his elderly mother.28 The Tribunal granted an award of $15,000 as general damages for this failure
to accommodate. The take-away from this decision is that the duty to accommodate based on family status is
not limited to individuals with child-care responsibilities. With the aging Canadian population, a new group of
family status claimants have now been recognized. The Tribunal held that the key distinction in assessing
accommodation of family status is whether the family responsibilities are required as opposed to a mere
preference. If the employee is required to provide caregiving services to a family member, the employer will
have a duty to accommodate.
The Tribunal has also opened the door to challenges that the Code is contrary to the Charter of Rights and
Freedoms. In Talos v Grand Erie District School Board29 the applicant alleged that the teacher’s benefit plan
was discriminatory because teachers over the age of 65 were not entitled to benefits. The Tribunal found that,
upon a plain reading of the Code, the Code does not prohibit discrimination in benefit plans with respect to
employees over the age of 65.
However, the Tribunal has permitted the applicant to challenge the constitutionality of the Code which does not
prohibit discrimination in benefit plans with respect to employees over the age of 65. The Talos case is one to
watch as it could have a significant effect on employee benefit plans across Ontario and have significant
financial implications for employers and insurance companies.
27 2013 ONSC 5799
28 2012 HRTO 1590.
29 2013 HRTO 1949.
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The Tribunal has recently expanded on the test for proving discrimination contrary to the Code in a case that
made headlines. In Islam v Big Inc., the Tribunal ordered a Toronto restaurant to pay almost $100,000 in total
damages to three former kitchen employees. The applicants, immigrants from Bangladesh and practicing
Muslims, brought an application alleging discrimination in employment on the basis of race, colour, ancestry,
place of origin, ethnic origin, and creed.
The applicants’ alleged that the owners of the restaurant implemented an “English in the kitchen” rule (because
the employees would often speak Bengali to one another), insisted that two of the employees eat pork despite it
being contrary to their religious beliefs, and forced one worker to try food during Ramadan. The significance of
this decision is not only the damages award, but the Tribunal’s comments regarding evidence required to
establish discrimination. The Tribunal stated:
 Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is
not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence,
which may include evidence of actions or omissions on the part of the respondent that raise inferences
that a Code provision has been breached. The inference drawn need not be inconsistent with any other
rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more
probable than not, based on all the evidence, and more probable than the explanation offered by the
respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of
probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53.30
Ultimately, the Tribunal found in favour of the applicants, despite noting that there was “little uncontested or
objectively verifiable evidence available to guide [it] in making findings of fact.”31
Currently, the Tribunal does not have the jurisdiction to order costs against any party to a proceeding. This,
coupled with the lack of a screening process, allows applicants to pursue complaints at the Tribunal without any
concern of cost awards in the event that they are unsuccessful.
While some tout this as a benefit to increase the accessibility of the Tribunal, it has done little to temper frivolous
or baseless claims from progressing through to the final adjudicative hearing.
However, a recent private member bill has been introduced in the Ontario Legislature, Bill 147, the Human
Rights Code Amendment Act (Awarding Costs), 2013 (“Bill 147”), which would provide the Tribunal with the
jurisdiction to award costs under the Code. While some argue that the imposition of costs would have a chilling
effect on the Tribunal’s applications, Bill 147 proposes that it would be the complete discretion of the Tribunal as
to whether it is appropriate to award costs in the circumstances of each proceeding.
Bill 147 passed First Reading on December 4, 2013. It remains to be seen whether it will become law.
30 2013 HRTO 2009 at para 114.
31 Islam v Big Inc, 2013 HRTO 2009
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As evidenced above, recent developments in the Tribunal’s procedure and jurisprudence give rise to areas of
cause for concern by employers. The Tribunal continues to strive to find the balance between direct access to
justice and limiting the frequency of frivolous or meritless claims. Clearly, as with all types of litigation,
employers ought best avoid proceedings at the Tribunal by dealing with employees who raise issues pertaining
to protected grounds of discrimination fairly and equally.