|
Human Rights (Ont) - Summary Dismissal. John v. Swedcan Lumican Plastics Inc. [change from full merits hearing to summary dismissal]
In John v. Swedcan Lumican Plastics Inc. (Div Ct, 2025) the Divisional Court allowed a JR, here where "the process engaged in by the HRTO denied him procedural fairness because a summary hearing was ordered by the Vice-Chair in 2024 after such a hearing had already been denied by Vice-Chair Doyle in April 2019, and a merits hearing commenced in 2020":Procedural fairness and change in procedure
[38] The applicant alleges that the process engaged in by the HRTO denied him procedural fairness because a summary hearing was ordered by the Vice-Chair in 2024 after such a hearing had already been denied by Vice-Chair Doyle in April 2019, and a merits hearing commenced in 2020. No justification was offered by the HRTO for this change in procedure. There is no declaration in evidence that the 2020 merits hearing had been quashed or acknowledgement even that it had begun. Submissions by counsel for the applicant that expressed concern about the change in procedure were never formally acknowledged or addressed by the HRTO
[39] This court has held that applicants do not have a right to a full merits hearing on every HRTO application. Summary hearings permit applications with no hope of success to be weeded out. “Fairness, effectiveness and efficiency for this high-volume tribunal” require an allocation of limited resources to applications that deserve a merits hearing: Xia [SS: Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 (Div. Ct.)], at para. 22. There is no denial of procedural fairness “by first holding a ... summary hearing rather than proceeding to a full merits hearing” (emphasis added): Xia, at para. 23.
[40] Xia endorses a summary hearing in appropriate cases before a merits hearing is granted. But what if a summary hearing has already been refused and a merits hearing granted and begun? Respectfully, I cannot agree that the applicant was accorded the procedural fairness to which he was entitled in the circumstances of his application.
[41] Regarding allegations of breaches of procedural fairness, a reviewing court must determine whether the appropriate level of procedural fairness was accorded in the decision-making process by reference to all the circumstances of the case, including the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
[42] The Baker decision set out a non-exhaustive list of factors to consider in determining what procedural fairness is required in a given set of circumstances. The more tribunal processes and the stakes at issue resemble what goes on in courts, the more procedural protections will be expected. Those factors in Baker, at paras. 23-27, include:a. The nature of the decision being made and the process followed in making it;
b. The nature of the statutory scheme at issue and the terms by which it operates, including limits on appeal or review of decisions taken;
c. The importance of the decision to the individual(s) affected by it;
d. The legitimate expectations of the person challenging the decision, meaning that “[i]f the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness”: at para. 26; and
e. Taking into account and respecting the choice of procedure by the tribunal itself, particularly when the statute grants to the tribunal that authority. [43] In this case, the workplace respondents had followed the process of the HRTO in requesting that the application be summarily dealt with and dismissed. Their request was rejected, and the matter was sent on for a merits hearing by Vice-Chair Doyle. The merits hearing proceeded in 2020 before the same Vice-Chair. At that hearing, the applicant testified for a day before the matter was adjourned. The application was dealt with very differently in 2024.
[44] On its face, the procedures engaged in by the HRTO in 2024 were statutorily sanctioned. Section 40 of the Code gives the HRTO a broad discretion to adopt procedures and practices that in its opinion offer the best opportunity for a fair, just and expeditious resolution of the merits of the application. Rule 19.1A of the HRTO’s Rules of Procedure provides that the HRTO may hold a summary hearing at the request of a party or on its own initiative to determine whether an application should be dismissed on the basis that there is no reasonable prospect of success. And a “Practice Direction on Summary Hearing Requests” (effective as of May 2013), permits the HRTO to call such a hearing “at any time.”
[45] Section 45.8 of the Code severely limits appeals and reviews and seeks to constrain the setting aside by courts of HRTO decisions. But the inherent powers granted by legislative provisions, rules, and directions “must not undermine principles of procedural natural justice or fairness”: Abrams v. Abrams, 2010 ONSC 2703, 102 O.R. (3d) 645, leave to appeal to Div. Ct. refused, 2010 ONSC 4714, at para. 34. The Baker factors offer a lens through which to view and assess the conduct of the HRTO.
[46] The decision in this case was of extreme importance to the applicant, who felt that he had been lured from his prior employment by the respondent Desmond only to find himself unemployed when he went on a medical leave from Desmond’s company. He had provided materials, geared up for a merits hearing, and had begun his testimony. Frailties in his case or adverse evidence could have been addressed in his own evidence and through the examination and cross-examination of other witnesses. So keenly did the applicant value the right to a merits hearing that he argued strenuously against it being taken away and a summary hearing interposed, but the HRTO refused to change or formally justify its decision.
[47] Most important here were the reasonable expectations of the applicant. Vice-Chair Doyle had denied the respondents’ request for a summary hearing and directed the matter to proceed to a merits hearing. That hearing was begun in 2020, and the applicant provided testimony. The case was then adjourned. In 2024, the Vice-Chair, as was his statutory prerogative, ordered a summary hearing. He made no acknowledgment that Vice-Chair Doyle had already refused such a hearing and directed a merits hearing, or that a merits hearing had been scheduled and begun, and the applicant had offered evidence. Counsel for the applicant raised concerns about the turn the case was taking in 2024 and sought to have the HRTO withdraw its decision to hold a summary hearing, highlighting the natural justice issue.
[48] In the circumstances of this application, where the applicant had been granted a merits hearing into an issue of central importance to his working life, and that hearing had commenced, procedural fairness dictated that the merits hearing should have continued to conclusion. The decision made by Vice-Chair Doyle and procedures already undertaken up to 2020 had created legitimate expectations in the applicant that could only be satisfied by that hearing continuing to conclusion. Even if Vice-Chair Doyle were no longer available to conclude the hearing, the applicant still had every reason to expect that he would have the merits hearing that he had been granted before another member of the tribunal.
[49] In oral submissions, counsel for the respondent argued forcefully that such a result would be a waste of time and resources, as the respondents would produce evidence contradicting and subverting the applicant’s claims. But that submission, even if accurate, cannot be determinative. Procedural fairness requires that an individual litigant have the right to their day in court when that day has been granted to them, even on a claim that may not succeed, and that a decision granting that right may not simply be ignored and silently overruled by another adjudicator at the same level as the adjudicator who made the original decision.
[50] The case of Park v. Lee, 2009 ONCA 651, 98 O.R. (3d) 520 offers a compelling parallel, albeit in a civil case, with respect to the imperative duty to give effect to a party’s expectations. The plaintiff (appellant), representing himself in the trial court, was described by the Court of Appeal as “ill-prepared” at trial: Park, at para. 2. He nevertheless began to offer evidence, secure in the knowledge that the defendant had undertaken to testify. The trial judge found the plaintiff’s evidence “incoherent and incapable of proving the case”, and that the plaintiff’s case was wasting “valuable resources”: Park, at para. 3. He dismissed it after only two hours of the plaintiff’s evidence-in-chief.
[51] The Court of Appeal held that the trial judge should have let the plaintiff finish his evidence and be cross-examined and should have required the defendant to present its promised case. In ordering a new trial, the Court stated, at para. 6:Failure to take this course amounted to a denial of the appellant's right to a fair trial. A trial court has the inherent jurisdiction to control its own process, but that jurisdiction does not extend to dismissing cases without hearing the available evidence and submissions. However hopeless the plaintiff's case may have seemed after two hours, the trial judge erred by interrupting the appellant before he had completed his evidence, before he had been given the full opportunity to present his case and before the respondents had honoured their undertaking to call the defendant ... . [52] In the circumstances of this application, the HRTO decision to proceed with a summary hearing in 2024 was a breach of natural justice. The applicant is entitled to a merits hearing. . Ovwodorume v. Human Rights Tribunal of Ontario
In Ovwodorume v. Human Rights Tribunal of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, here against a dismissed "reconsideration decision of the Human Rights Tribunal of Ontario" in a claim which "alleged discrimination and reprisal with respect to employment because of disability".
Here the court supports the tribunal truncating evidence requirements as it "proceeded by way of summary hearing":[8] It was also reasonable for the Tribunal to reach its decision without requiring copies of the policies Vita was relying on to justify the termination. The Tribunal proceeded by way of summary hearing, which does not require disclosure of all relevant documents. The Tribunal is authorized under its Rules of Procedure to hold a summary hearing on whether the application should be dismissed because there is no reasonable prospect of success. The Tribunal may give directions about steps to be taken before the summary hearing, including for the disclosure of documents, but the parties are not otherwise required to produce all relevant documents.
[9] To the extent Mr. Ovwodorume is concerned the summary hearing process raises procedural fairness concerns, this court has stated that litigants before the Tribunal “do not have an absolute right to a full merits hearing on every HRTO application.” The Tribunal’s summary hearing process is an important method for it to direct its resources to those cases that fall within its jurisdiction, promoting fairness, effectiveness, and efficiency: Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150, at paras. 21-22.
[10] In the context of the summary hearing process here, it was reasonable for the Tribunal to rely on the termination letter and the underlying factual context of Mr Ovwodorume’s termination, as set out in his application, to conclude his termination was unrelated to a ground protected by the Code. Mr. Ovwodorume suggests that Vita may not have had written policies for employees exposed to COVID-19 when he was fired in June 2020. This may have been relevant to challenging Mr. Ovwodorume’s termination for employment law reasons. It did not render the Tribunal’s conclusion about the absence of Code grounds unreasonable. . T.A. v. Ontario
In T.A. v. Ontario (Div Court, 2024) the Divisional Court dismissed a JR against an HRTO decision that summarily dismissed the applicant's HRC application that argued discrimination based on "denial of the applicants’ access to the COVID-19 vaccine of their choice".
In their argument the JR applicants advanced arguments about HRTO summary dismissals that I have stated for years (see the HRTO Guide) (though with which this court doesn't apparently agree!):[7] The applicants are children who were aged six and nine in April 2022. The litigation guardian is their father. The dispute arose because of the children’s failure to receive the Moderna vaccine in a timely way rather than the Pfizer vaccine during the COVID-19 pandemic.
[8] Pfizer was the first vaccine authorized by Health Canada for use in children aged 6 to 11. The Moderna vaccine was authorized subsequently by Health Canada on March 17, 2022. On March 25, 2022, the OMH permitted Ontario pharmacists to offer children aged 6 to 11 only the Pfizer vaccine, preventing children of those ages from having the same choice of vaccines available to adult patients or older children. There were no options for securing vaccination to children outside the provincial health care system.
[9] A.A. [SS: the litigation guardian], who also has postgraduate training in immunology, determined that the Moderna vaccine was preferable for his children.
....
Was the Summary Hearing Process Procedurally Unfair?
....
[28] Clearly, the Tribunal followed its rules. However, the applicants submit that the systemic practice of the Tribunal is flawed and that the Tribunal violated fundamental principles of procedural fairness in its summary hearing process. They submit that unfairness occurred when:a. the Tribunal initiated the summary hearing process without request by or input from the parties;
b. Tribunal Member Nicols both initiated the process and made the decision following the summary hearing and the reconsideration decision, thus giving rise to an apprehension of bias; and
c. Member Nicols did not refer to, and therefore can be taken to have failed to consider, the affidavit evidence filed by the applicants at the summary hearing. [29] The applicants offered an indictment of the summary dismissal processes used by the Tribunal and pointed to the relatively small number of cases filed with the Tribunal that proceed through to a hearing on the merits. This was submitted as evidence of there being a systemic impediment to vulnerable people who wish to bring forward valid human rights complaints.
[30] This court notes that, prior to the legislative amendments which came into effect in 2008, all complaints of discrimination were made to the Ontario Human Rights Commission and were only allowed to proceed to a tribunal hearing based on the discretion of the Commission itself. Under the current regime, that former gatekeeping function no longer exists, and anyone may make a complaint directly to the Tribunal.
[31] An adjudication on the merits is only one way to bring a complaint to a conclusion, as is the summary hearing process. The rules also provide for various forms of mediated resolution[5].
[32] The use of summary hearings by the Tribunal has received judicial approval. In Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840, at paras. 10 to12, A.C.J.S.C. Marrocco wrote:[10] The Tribunal has the power to make rules governing the practices and procedures before it and these rules prevail over those set out in any other Act: see s. 43(1) of the Code. Even if section 43(1) did not exist, it is a well-established principle of administrative law that tribunals are the masters of their own procedure: see, for example, Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 at pp. 307, 338.
[11] The Tribunal has in fact made Rules that govern its own procedures and practices, and Rule 19A provides that the Tribunal may hold a Summary Hearing to determine whether an application should be dismissed in whole or in part because there is no reasonable prospect it will succeed.
[12] This Rule is entirely appropriate for the Tribunal or any tribunal for that matter. The Tribunal is attempting to facilitate access to justice. It cannot use filing or other fees as a gatekeeping mechanism. At the same time the Tribunal does not have unlimited resources. Accordingly, one person’s access to the Tribunal can only come at the expense of another’s, unless the Tribunal has a very light case load, which it does not. Rule 19A is 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. [33] Rule 19A specifically provides that the Tribunal may direct on its own initiative that a summary hearing be held. There is no procedural unfairness in such a direction. Normally, the party making a request for a hearing bears the burden of satisfying the decision-maker of that party’s position to justify the relief requested. It is reasonable that when the Tribunal itself initiates the hearing and identifies areas upon which submissions are required, the party whose allegations support the allegedly discriminatory conduct, in this case, the applicants, bear that burden.
[34] The submission that Member Nicols “double-hatted” as both the initiator of the summary hearing and the hearing officer is not persuasive. It is within the purview of the Tribunal to deploy its staff. Member Nicols was within her authority to review the matter, identify issues of concern, raise them with the parties, and request submissions. She had not made a decision. She was not a prosecutor. It was not “her” case. She afforded the parties the opportunity to make full written and oral submissions.
[35] As to the matter of the same member rendering a decision on the summary hearing and then making the reconsideration decision, the latter was not an appeal of the former. In the request for reconsideration, she was not mandated to adjudicate on the correctness of her previous decision, but rather to apply the factors set out in rule 26.5, to which I have referred. No apprehension of bias resulted.
[36] The applicants allege that the Tribunal practice of forbidding witness testimony and affidavit evidence at summary dismissal hearings lacks procedural fairness in violation of the Statutory Powers Procedure Act (the “SPPA”), s. 10.1 and thwarts the applicants’ ability to meet their burden of resisting summary dismissal by calling relevant evidence.
[37] The Tribunal’s Practice Direction on Summary Hearing Requests speaks of the purpose of and procedure to be followed at the hearing:The summary hearing is used to determine at an early stage whether an application should be dismissed because it has no reasonable prospect of success.
A summary hearing usually considers:. whether, assuming all of the allegations are true, the Application has no 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; and/or
. whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination. [38] Based on the Practice Direction, oral testimony and written affidavit evidence is not required. The Tribunal assumes all allegations to be true, which implies that evidence to prove those allegations is to be provided in due course if the matter proceeds.
[39] No procedural unfairness exists in the restriction on the calling or filing of evidence given the presumption that the factual allegations in the claim are true.
[40] In any event, the concern raised by the applicant is made academic by the fact that member Nicols did allow the filing of the two affidavits as requested, to which she referred in her decision. She is not required to specifically refer to the facts contained in them. It is reasonable to assume that she did not find the affidavit evidence material to the question of whether the application had a reasonable prospect of success. . Yan v. Mohawk College
In Yan v. Mohawk College (Div Court, 2024) the Divisional Court dismissed a JR against a summary HRTO dismissal after issuing a "notice of its intent to dismiss" when they found no discrimination by the College respondent:[2] The applicant applied to the HRTO alleging discrimination by the respondent College in the provision of goods, services and facilities under the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) based on race, ancestry, place of origin and creed, as well as association with a person identified by a listed ground.
....
[6] The HRTO gave notice of its intent to dismiss the application because the narrative did not identify any specific acts of discrimination within the meaning of the Code that were allegedly committed by the respondent College. The application therefore appeared to be outside the HRTO’s jurisdiction. The applicant was given the right to make submissions in response to the notice and did so.
[7] After considering the Applicant’s submissions, the HRTO dismissed the application. The Adjudicator found that it was not at all clear why the applicant perceived that the instructor’s alleged actions were unfair or that they were in any way connected to any of the Code grounds that she relied on to allege discrimination. . Martinez v. Human Rights Tribunal of Ontario
In Martinez v. Human Rights Tribunal of Ontario (Div Court, 2024) the Divisional Court dismissed a JR challenge to an HRTO summary dismissal:[7] On October 13, 2022, the Tribunal dismissed Mr. Martinez’s complaint summarily because it found Mr. Martinez’s complaint did not fall within its jurisdiction. On January 12, 2023, the Tribunal dismissed Mr. Martinez’s request for reconsideration of the decision.
....
ANALYSIS
[12] We find the Tribunal’s decision was reasonable. It was plain and obvious that Mr. Martinez’s complaint did not state a claim that could amount to a violation of the Code even if he proved that everything he claimed was true.
[13] The Code does not prohibit all unequal treatment. To offend s. 1 of the Code, a person must be denied equal treatment with respect to goods, services, or facilities, “because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.” As the Tribunal stated at para. 6, it “does not have jurisdiction over general allegations of unfairness unrelated to the Code.”
[14] It follows that by failing to claim that Mr. Gauthier discriminated against him based on a prohibited ground, Mr. Martinez did not make a claim that could succeed before the Tribunal.
[15] Similarly, Mr. Martinez did not identify any basis to say that Mr. Gauthier’s actions were a reprisal for anything done by Mr. Martinez to claim or enforce his rights under the Code. The adjudicator made no error in finding his claim as written and explained to the Tribunal could not succeed in establishing a breach of the prohibition against reprisals under s. 8 of the Code.
[16] In oral argument, Mr. Martinez submitted the Tribunal exercised its discretion inappropriately to “weed out” his application. To the extent this was a complaint about the Tribunal’s summary process, the Tribunal is entitled to follow the procedure set out in r. 13.2 of its procedural rules for dealing with preliminary jurisdictional issues to resolve complaints. This process allowed Mr. Martinez the opportunity to provide written submissions in which he acknowledged his complaint was not related to a prohibited ground under the Code. There was no procedural unfairness in this approach: Wu v. City of Toronto and Toronto Ombudsman, 2023 ONSC 6192, at paras. 40-41
[17] The decision to dismiss the claim summarily was transparent, intelligible and justified. It was both reasonable and procedurally fair and will not be set aside.
|
