This guide is information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (May 2020). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.
Selected common legal words, terms and phrases used at the Tribunal:
A B C D E G H I J K L M N O P Q R S T U V W
In any legal proceeding, you will encounter words, terms and phrases that you may not be familiar with and that can be hard to understand. This applies to the human rights application process under the Ontario Human Rights Code (Code).
The Ontario Human Rights Tribunal (Tribunal) uses some very particular language to describe its processes. The Tribunal has its own Rules of Procedure (Rules) that govern its practice and procedure. Many useful terms and phrases are defined in the Rules which will help you navigate through the Tribunal’s process. The Tribunal process is intended to be accessible and understandable to people who file their own applications (“self-represented” Applicants).
This information sheet is designed to assist Applicants to become familiar with the common legal terms used by the Tribunal and parties appearing before it. Knowing these terms will help you work your way through the Tribunal’s process.
Selected common legal words, terms and phrases used at the Tribunal
A specialized An administrative tribunal is like a court
: A person, organization, trade union, or other occupational or professional association identified by one of the parties or the HRTO as being affected by a proceeding and entitled to notice of the proceeding. See HRTO Rule 1.4.
Affidavit: A written statement that a person makes after promising officially to tell the truth. An affidavit can be used as a form of evidence and proof in a hearing at the HRTO.
Affirmation: A solemn declaration made by a person to tell the truth, usually before giving testimony in a court or tribunal.
Age: A prohibited ground of discrimination in the Code. Age is defined in section 10(1) of the Code as an age that is eighteen (18) years or more.
Allegation: A claim or assertion that someone has done something illegal or wrong but has not yet proven at a hearing or trial. Allegations, until they are proved in a court or tribunal, remain merely assertions.
Ancestry: A prohibited ground of discrimination in the Code. An ancestor is someone a person is descended from and is usually more distant than a grandparent. One’s ancestry may originate from more than one cultural group.
Announced Intention: The Code prohibits a person from publishing or displaying a symbol, sign, notice, emblem or other similar representation that indicates the intention of that person to violate the Code. See section 13 of the Code.
: A person who files a human rights application and who believes that their rights under the Code have been violated.
: The document (HRTO Form 1) that begins a human rights claim under the . The application asks you to explain what happened to you, why you believe it is discrimination, and what you want the HRTO to order against the person and/or organization who you claim is responsible for the discrimination. Applications may be brought under sections 34(1), 34(5) and 45.9(3) of the Code. See HRTO Rules 6 and 24.
Application Record: In judicial review applications, the bound record that sets out all the documents necessary for the Divisional Court to sit in review of a final decision of the HRTO. See Rule 68 of the Civil Rules.
: An application that is filed for a person who is entitled to bring an application and who consents to the bringing of that application by another person (or organization). For example, a friend, spouse or other family member may bring an application on behalf of another person, if that person consents. See section 34(5) of the .
Arbitration: A form of alternative dispute resolution to resolve disputes outside the courts where the parties to a dispute refer it to one or more persons by whose decision they agree to be bound. Arbitration is the preferred form of dispute resolution in the collective bargaining and unionized labour context in many legal jurisdictions.
Argument: An oral or written reason or set of reasons given in order to persuade a court or tribunal of the merit of a position taken in a case.
Association: People may be subject to discrimination because of their association with a person with a protected characteristic under the Code. It applies even if the person could not otherwise claim protection based on one of the grounds or does not share the same Code grounds as the person they are associated with. See section 12 of the Code.
Canadian Charter of Rights and Freedoms: A bill of rights in the Constitution of Canada and the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of the government.
Canadian Human Rights Act (CHRA): A federal statute passed by the Parliament of Canada in 1977 to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set of prohibited grounds. The federal equivalent to the Code.
Canadian Human Rights Commission (CHRC): A federal administrative body empowered under the Canadian Human Rights Act to investigate and try to settle complaints of discrimination within federal jurisdiction. The federal equivalent to the OHRC.
Canadian Human Rights Tribunal (CHRT): A federal administrative tribunal established in 1977 through the Canadian Human Rights Act. It is independent of the Canadian Human Rights Commission which refers cases to it for adjudication under the CHRA. The federal equivalent of the HRTO.
: A procedure where the HRTO requests that the parties respond to any issues identified by the HRTO that will enable the proper management of the proceeding. See HRTO Rule 18.
Case Law: The law as established by the outcome of former cases. The HRTO has a substantial body of case law interpreting and applying the Code. Also referred to as jurisprudence.
: A telephone conference call or other meeting of all the parties to an application, as convened by the HRTO. See HRTO Rule 1.4 and the HRTO Practice Direction on Case Management Conference Calls.
Cause of Action: A cause of action, in the civil law context, is a set of facts enough to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The legal document which carries a claim is called a statement of claim. It notifies the responding party of an alleged fault which resulted in damages, often expressed in an amount of money the responding party should pay.
Citizenship: A prohibited ground of discrimination undefined in the Code. It is illegal for employers to make distinctions between Canadian citizens, citizens from other countries, persons with dual citizenship, landed immigrants or permanent residents, refugees and non-permanent residents.
Civil Law: A term which distinguishes court work in the non-criminal stream of actions in law and from the administrative tribunal justice sector such as at the HRTO. Actions in tort, contract and property are example of civil law disputes. In Ontario, civil law litigation practice and procedure is governed by the Civil Rules.
: A clerical error, such as a typographical error, error of calculation, or other similar error in a HRTO decision or order may be corrected by the HRTO upon the request of a party. See HRTO Rule 25.
Closing Submissions: A closing submission, also called a closing argument, is a party’s concluding statement reiterating the important arguments for the HRTO. A closing argument occurs after the presentation of all the evidence. A closing argument may not contain any new information and may only use the evidence introduced at the HRTO hearing. Closing submissions may be, depending on the parties wishes and the HRTO’s directions, oral or written or both.
Colour: A prohibited ground of discrimination not defined in the Code. A person’s skin colour can be seen as a physical feature that is commonly racialized. Colour is a ground that may also be encompassed by the concept of race
Common Law: The traditional body of law derived from the judicial decisions of the courts. Also referred to as judicial precedent or judge-made law. Distinguishable from the law that is codified in statues or legislation.
Concurrent Jurisdiction: Where two or more courts or tribunals from different systems simultaneously have jurisdiction over a specific case. For example, the courts and a wide range of tribunals in Ontario, including the HRTO and labour arbitrators, have the jurisdiction to apply the Code to the legal dispute that is properly before them.
Confidentiality: Refers to the duty of an individual to refrain from sharing confidential information with others, except with the express consent of the other party. Settlement agreements regularly contain a confidentiality clause that limits the parties’ ability to discuss the terms and conditions of the settlement.
Conflict of interest: A situation where a person or organization is involved in multiple interests and serving one interest could involve working against another. A personal interest of an individual or organization might adversely affect a duty owed to make decisions for the benefit of a third party.
Consent Order: A consent order is a voluntary agreement worked out between two or more parties to a legal dispute. It has the same legal effect as a court or tribunal order and can be enforced if a party does not comply with the order. See section 45.9(2) of the Code.
Contracts: A social area under the Code. Everyone with the legal capacity to contract has the right to contract without discrimination. See section 3 of the Code.
: Where a party does not honour the terms of a settlement reached to resolve an application. Where the settlement was in writing and signed by the parties an application can be brought to the HRTO if there is a contravention (i.e., breach). See HRTO Rule 24.
Constructive Discrimination: Where a rule or practice unintentionally singles out a group of people and results in unequal treatment. Also referred to as adverse effect discrimination or indirect discrimination. For example, a requirement that all employees work on Saturdays could discriminate against those who must worship on that day as part of their religious practice.
Corporate Search: A type of background search conducted on corporations that will produce a corporate report, a document that verifies a company's information. A corporate report lists a company's true corporate name, number, registered address, and can sometimes list shareholder and director names and contact information.
Costs: A court or tribunal may order that the losing party in litigation must pay some of the successful party's legal expenses. Costs can not be awarded at the HRTO but may be awarded in the courts, such as in applications for judicial review.
Court of Appeal for Ontario: The appellate court for the province of Ontario. The court's jurisdiction includes that consideration of both civil and criminal appeals from decisions of Ontario's two trial courts, the Superior Court of Justice and Ontario Court of Justice.
Courts of Justice Act (CJA): An Ontario statute that establishes the legal framework for Ontario’s court structure, including the Court of Appeal for Ontario and the Superior Court of Justice of Ontario and court proceedings, including the rules about pre and post judgment interest on awards of damages at the HRTO.
Credibility: The quality of being trusted and believed in. Credible sources are those that provide information that one can believe to be true. For example, credible testimony given by a witness at a HRTO hearing refers to testimony that is worthy of belief or trustworthy.
Creed: A prohibited ground of discrimination not defined in the Code. It is interpreted to mean a “religious creed" or "religion." It includes faith, beliefs, observances or worship. The key test for the existence of a creed-based right is if the beliefs and practices are sincerely held and/or observed. Creed does not include secular, moral or ethical beliefs or political convictions.
Creditor: A person or company to whom money is owed. The counterparty to a creditor is a debtor. An applicant who is owed money under an HRTO order is a creditor and the respondent is the debtor.
Criminal Code: A federal statute that codifies most criminal offences and procedures in Canada. Its official title is An Act Respecting the Criminal Law, R.S.C., 1985, c. C-46.
Criminal Law: The criminal law of Canada is under the legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Criminal law statutes include the Criminal Code, the Controlled Drugs and Substances Act and the Youth Criminal Justice Act.
Cross Examination: The formal questioning of a witness called by the other party in a court of law or administrative tribunal to challenge testimony already given, Cross-examination is preceded by direct examination and may be followed by a redirect examination.
: A type of remedy that may be ordered by the HRTO if a breach of the Code is found. Damages are monetary awards granted by the HRTO to compensate an applicant for the impact of the discrimination. Damages at the HRTO may be or .
Declaration: A declaration is a formal statement in a document. At the HRTO, for example, a declaration is required to become a litigation guardian for a party that lacks legal capacity. See HRTO Rule A10.
Debtor: An entity that owes a debt to another entity. The entity may be an individual, a firm, a government, a company or other legal person. The counterparty of debtor is called a creditor.
The adjudicator’s ruling in an HRTO application or an aspect of an application. Decisions and may be or .
De Minimis: A Latin expression meaning "about minimal things". A legal doctrine by which a court or tribunal refuses to consider trifling, small or insignificant matters.
Direct Evidence: A type of evidence that, if believed, directly proves a fact without the need of any inference being drawn by a court or tribunal as is required in the case of indirect or circumstantial evidence.
Direct Examination: The process of obtaining evidence from one’s own witness in a court or tribunal. Direct examination is the questioning of a witness by the party who called him or her. Also referred to as the examination in chief.
Directing Mind: The legal doctrine that where a person acts as the company, i.e., where his or her mind is the directing mind and will of the company, then his or her state of knowledge and state of mind can be attributed to the company and the company can be liable for his or her actions and defaults.
Disability: The definition of disability in section 10(1) of the Code is very broad and includes any degree of physical, developmental, mental or learning disability. While the Code sets out various types of conditions, the list does not refer to every type of disability that is covered. Section 10(3) of the Code specifically protects persons who have had a disability in the past, as well as people who are believed to have, or have had a disability.
Discrimination: Adversely harming a person based, at least in part, on a prohibited ground of discrimination under the Code but not defined in the Code. It usually includes not individually assessing the unique merits, capacities and circumstances of a person and instead, making stereotypical assumptions based on a person’s presumed traits having the impact of excluding persons, denying benefits or imposing burdens. Discrimination often takes place without any intent to do harm and intent is not required. See also the definition adverse effect discrimination above.
Disbursements: Disbursements are expenses made by a representative of a litigant that the client is responsible for paying. Disbursements may include court filing fees, process server fees (to serve documents or file materials with the court) and courier charges.
: The process at the HRTO whereby all parties are required, before the hearing, to provide to the other party their lists of documents. There are two stages at the HRTO - arguably relevant documents and documents intended to be relied upon at a hearing. See HRTO Rules 16 and 17.
Disclosure of Witnesses: The process at the HRTO whereby all parties are required, before the hearing, to provide to the other party their list of witnesses and witness statements. See HRTO Rules 16 and 17.
under the occurs when someone is treating you unfairly because of race, colour, ancestry, place of origin (where you were born), ethnic background, citizenship, creed (religion), sex, disability, sexual orientation, age, marital or family status, pregnancy, receipt of public assistance (in housing only) or record of offences (in employment only). Discrimination can occur if a policy, practice or program fails to accommodate the special needs of an individual that are related to one of the grounds of discrimination listed above, including disability, age, religion or family status.
Doctrine Against Re-Litigation: A common law legal doctrine meant to prevent the re-litigation of the same legal claim between the same parties. In some exceptional cases, fairness principles may permit re-litigation. Also known as res judicata, the Latin term for a matter already judged and decided. See section 45.1 of the Code.
Duty to Accommodate: The duty to accommodate is a broad equality concept that applies to all prohibited grounds of discrimination in human rights legislation, including the Code, and the Charter. For example, in the workplace, accommodation may include changing aspects of a disabled employee’s workspace, the schedule or number of hours, the specific tasks required to complete, or other terms or conditions. Reasonable, but not perfect, accommodation, must be provided to the point of undue hardship.
Duty to Cooperate: Refers to the requirement or responsibility for a person to be cooperative and reasonable when considering proposals that effectively respond to their needs in the accommodation process. For example, in the workplace, an employer may take reasonable steps to accommodate, but those steps might not meet the employee’s idealized expectations. If the employee rejects a reasonable accommodation proposal, she or he may be absolving the employer from liability.
Duty to Investigate: A party has a legal obligation under the Code to investigate allegations of harassment and discrimination based upon a prohibited ground of discrimination. For example, an employer’s failure to properly respond to and investigate a complaint of Code-based discrimination or harassment may lead to award of damages and other remedies at the HRTO.
Employment: A social area in the Code. Everyone in Ontario is entitled to equal treatment with respect to employment. See section 5 of the Code.
Employment Standards Act (ESA): An Ontario statute that sets out the basic rights and responsibilities of both employees and employers in Ontario workplaces over areas such as wages, hours of work, vacation pay, termination pay and public holidays.
Enforcement: Enforcing an order means making sure that what the court or tribunal ordered is done or executed. Usually, enforcement means trying to collect money that is owed under the order. Enforcement methods in the courts includes writs, garnishment and examinations in aid of execution.
Equality: The legal principle that each person must be treated equally by and under the law. In Canada, the right to equality is enshrined in provincial and federal human rights legislation and the Charter. Equality is often understood by the notions of both formal equality (treating all the same in all situations) and substantive equality (treating some differently than others in order to treat some equally).
Ethnic Origin: A prohibited ground of discrimination not defined in the Code. Ethnic origin relates to large groups of people classed according to common racial, national, tribal, religious, linguistic or cultural origin or background. Ethnic groups may be distinguished based on cultural traits such as language or shared customs and heritage around family, food, dance and music.
Evidence: Every type of proof legally presented at a trial or hearing (and as allowed by a judge or adjudicator) which is intended to convince a court or tribunal of the alleged facts relevant to the case. Evidence is usually either presented orally by way of testimony from a witness or by submitting records and documents. Evidence may also be direct evidence or indirect evidence.
Exhibit: Physical or documentary evidence brought before a court or tribunal. Examples may include an invoice or written contract, a photograph, or a video recording. Exhibits are normally entered into evidence through a witness and accepted by the court or tribunal and given an exhibit number or letter.
: A HRTO proceeding that is scheduled for an early hearing date by the HRTO because of circumstances requiring an urgent resolution of the issues raised in an application. This is an exceptional remedy not often granted at the HRTO. See HRTO Rule 21.
Expert Report: A study generated by expert witnesses offering their opinions on points of controversy in a legal dispute. Expert reports state facts, discuss details, explain reasoning, and justify the experts' conclusions and opinions. For example, at the HRTO, an expert report on racial profiling by the police. See HRTO Rule 17.3
Refers to the division .
: An HRTO order that brings an end to the application, either by deciding the overall merits or by finding that it should not proceed for other reasons. For example, where the HRTO decides that the issues raised are within federal jurisdiction or that the case was brought too late and outside the Code’s limitation period.
Formal Equality: A belief that, for fairness, people must always be consistently or equally treated. A belief that all people are the same and are subject to the same rules and regulations in social, political, economic and other areas of life and that neither discrimination nor privilege is given to any group of people in a society.
A prohibited ground of discrimination not defined in the Code.
A prohibited ground of discrimination not defined in the Code. Closely linked to the ground of gender identity. Personal c
: A financial remedy that may be ordered by the HRTO intended to compensate an applicant for being discriminated against. It recognizes an applicant’s right to be free from discrimination and compensates an applicant for injury to his or her dignity, feelings, and self-respect as a result of the discrimination.
Genetic Characteristics: A ground of discrimination under the Canadian Human Rights Act. For example, a person may have a genetic mutation or an increased risk of developing a certain disease. This information could be used, for example, by employers refuse to hire someone, deny a promotion, or terminate an employee. The Code does not yet include this ground of discrimination.
Good Faith: Honesty. A sincere intention to deal fairly with others. Good faith encompasses a sincere belief or motive without any malice or the desire to defraud others. Good faith is part of the test under section 34(2) of the Code where an applicant has filed their HRTO application beyond the limitation period.
Grievance: A formal complaint, usually raised by an employee against an employer occurs in the context of a unionized workplace and under the terms of a collective bargaining agreement.
A form of discrimination defined in section 10(1) of the . To engage in a course of vexatious comments or conduct that is known or reasonably known to be unwelcome because of a prohibited ground of discrimination.
: A legal proceeding in which the parties present their case in front of a HRTO adjudicator who will decide, based on the evidence presented, whether the was breached and, if so, what remedies to award.
Hearsay: A type of rule about evidence. Evidence of a witness of which they do not have direct knowledge but, rather is based on what others have said to them. In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies. At the HRTO hearsay evidence is admissible but may be given different weight depending on the intended use of the hearsay evidence.
Housing: A social area in the Code. Everyone has the right to equal treatment with respect to the occupancy of accommodation without discrimination or harassment. See section 2 of the Code.
: An independent agency established under Part IV.1 of the and funded by the Ontario government to support and provide legal services to eligible applicants and potential applicants claiming discrimination under the . See Part IV.1 of the Code.
: An independent adjudicative body established under Part IV of the with a mandate to resolve applications brought under the . The HRTO members who are appointed by the Ontario government based on their experience and expertise in human rights law. HRTO members conduct both mediations and hearings.
: The HRTO has the power to conduct its own inquiry to obtain evidence that it believes is necessary in order to come to a fair, just and expeditious decision in the hearing of an application. See HRTO Rule 20.
Inherent Jurisdiction: A common law legal doctrine. A court that has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. For example, the Ontario Superior Court of Justice has inherent jurisdiction. The HRTO does not have inherent jurisdiction and its powers derive only from the Code and the Statutory Powers Procedure Act.
A percentage amount that may be applied to awards for damages calculated in accordance with the Courts of Justice Act. Pre-judgment runs from the date the cause of action arose to the date of the order for the payment of money.
: Interim decisions are usually procedural decisions that deal with how an application will be handled by the HRTO. For example, a HRTO decision to defer an application under section 45 of the Code because there is an existing union grievance under a collective agreement based on the same facts is an interim decision. Distinguishable from a HRTO final decision.
: An exceptional remedy at the HRTO. An interim remedy is an order made requiring a respondent do (or not do) something even though the case itself has not yet been finally decided on the merits. For example, the HRTO could order a company to provide disability related accommodation in the workplace to an applicant, even though the applicant’s right to that remedy has not yet been finally determined. See HRTO Rule 23.
Intersecting Grounds: Discrimination is often linked to the compounding effects of multiple grounds of discrimination. For example, a young Black man can be seen as a “Black person,” or as a “young person,” or as a “man” and is protected under the grounds of race, age and gender. He may be exposed to discrimination on these intersecting grounds as a “young Black man” based on various assumptions and/or stereotypes.
: A request by a person or organization to participate in the HRTO’s process in respect of an application. The HRTO determines whether to allow an intervention and on what terms and to what extent an intervenor will be allowed to participate in a proceeding. See HRTO Rule 11.
Irreparable Harm: A legal concept which holds that the type of harm threatened or experienced cannot be corrected through monetary compensation or conditions cannot be put back to the way they were. Part of the legal test applied by the HRTO when considering whether to order an interim remedy or issue a stay of one of its orders.
: An application in which a court determines whether an administrative tribunal has acted legally in the way that it handled a case. A court would generally consider the reasonableness of the tribunal’s decision by determining, for example, whether the tribunal had the authority to decide or whether the tribunal exercised that authority based on proper legal principles. In Ontario, judicial reviews are heard by the Divisional Court.
Judicial Review Procedure Act (JRPA): An Ontario statute that sets out most of the rules and procedure on applications for judicial review. Rule 68 of the Civil Rules sets out additional applicable procedural rules applicable to judicial reviews.
: The scope of the HRTO’s authority under the Code to hear and decide applications. Jurisdiction can refer to the HRTO’s ability to hear subjects and/or to consider applications against Respondents. An important aspect of jurisdiction at the HRTO concerns whether a claim is properly brought under the , the human rights legislation of another province, or the federal Canadian Human Rights Act. See HRTO Rule 13.
Jurisprudence: The study of the theory and philosophy of law. More commonly, the term is used to mean a court’s or tribunal’s body of decisions or case law.
: The time period that a party can wait before starting a case. The time period under the is either one (1) year after the last incident of discrimination occurred (see section 34 of the Code) or, if there was a breach of a settlement, within six (6) months of the date of the breach (see section 45.9 of the Code).
Litigation: The process of taking legal action between two opposing parties working in the interest of enforcing or defending a legal right. Filing an application at the HRTO is a form of litigation.
Litigation Guardian: A person who has been approved to make decisions on behalf of another person without legal capacity, such as a minor or mentally incapacitated person, in a legal dispute. The HRTO frequently has litigation guardians in hearings before it under the Code. See HRTO Rule A10.
: A form of settlement conference. An opportunity for parties to meet with a HRTO member to try to resolve their dispute before it goes to a hearing. Mediation is voluntary and any settlement must be agreed to by both parties. If a mediation is successful, the parties sign a settlement agreement and a HRTO Form 25 and the HRTO closes the file. See HRTO Rule 15.
: Another form of settlement conference at the HRTO. A HRTO member hearing an application as adjudicator may also act as a mediator with the agreement of the parties. If the parties agree to do so, the HRTO may also continue to hear the application as an adjudicator if the mediation fails. Where the parties agree to mediation-adjudication, they must sign an agreement before starting. See HRTO Rule 15A.
Merit Hearing: A hearing that decides the issues that gave rise to the legal dispute. A hearing that makes findings of fact and applies the relevant law and decides who is legally liable or not. For example, an HRTO decision finding a breach of the Code. Distinguishable from procedural or preliminary hearings, which deal with interim issues and not the final, substantive issues in the legal dispute.
Minor: A person under the age of eighteen (18), the age of majority in Ontario. At 18, a person can, amongst other things, sue and be sued in one’s own name, enter into contracts and vote in elections.
: A written legal document that sets out the specific terms and conditions by which the parties have agreed to settle an application. Minutes of settlement are often reached during a mediation or mediation-adjudication held at the HRTO. A settlement means that the parties agree to not have the HRTO application decided at a merit hearing.
Monetary Compensation: A form of remedy. An amount of money ordered to be paid by a court or tribunal for a loss, harm, or injury. The HRTO has the power to order monetary compensation where there is a breach of the Code.
Moot: A moot point or case is a matter of no practical value or importance because it is a hypothetical or academic dispute and there is no live issue remaining between the parties that a court or tribunal is required to resolve. A court or tribunal may decline to hear a matter because it is moot.
National Origin: A prohibited ground of discrimination under the CHRA. Relating to a person’s country or state of origin. National origin is like the ground of place of origin under the Code.
Negotiation: A discussion between parties and/or their representatives aimed at reaching an agreement or settlement of a legal dispute. Often occurs at a HRTO mediation and includes the parties’ oral and written exchanges of information and positions that may ultimately result in a settlement.
New Matter: Relates to an applicant’s Reply (Form 3) in a HRTO application. A new matter is something that a respondent has raised for the first time in a Response (Form 2). A Reply (Form 3) is intended to reply to a respondent’s new issues and not simply re-state what is contained in the application (Form 1). See HRTO Rule 9.
Nexus: A connection or link. In human rights law, nexus refers to the evidentiary link required to establish a prima facie case of discrimination. An applicant must show a connection between their prohibited ground of discrimination and the adverse differential treatment they have experienced.
Notice of Constitutional Question: If a party intends to challenge the constitutionality of law, regulation by-law or rule or claims a remedy under section 24(1) of the Charter of Rights and Freedoms, that party is required to give notice at least fifteen (15) days before the constitutional question is to be argued. See HRTO Rule 4.
Notice of Examination in Aid of Execution: A notice issued by a court and served by a creditor to a debtor to appear at an examination in aid of execution (also referred to as a judgment debtor examination) where the creditor is entitled to ask questions and obtain information about the debtor’s assets and ability to pay the judgment or order of a court or tribunal.
Notice of Garnishment: A notice issued by a court and served by a creditor on a party that owes money to a debtor in order to enforce a judgment or order of a court or tribunal. Commonly, banks accounts, wages, or a tenants’ rental payments to a landlord are seized under a garnishment process.
Notice of Hearing: A HRTO notice to the parties that advises them of the date, time and location of their hearing. It also includes, in the case of a merit hearing, information about the timelines for the parties’ disclosure of documents and witnesses. Also called a Confirmation of Hearing. See HERO Rule 1.4.
Notice of Mediation: A HRTO notice to the parties that advises them of the date, time, location of their mediation. At the HRTO most mediations are conducted by teleconference and the notice will provide detailed of the call-in instructions.
Oath: A statement of fact or a promise with wording relating to something considered sacred, such as a Bible or other religious text, as a sign of truth. A common legal substitute for those who object to making a sacred oath is to give an affirmation. Traditionally, a witness at a hearing will take an oath or affirmation before giving their testimony in a legal proceeding.
Occupational Health and Safety Act (OHSA): An Ontario statute with the purpose of protecting workers from health and safety hazards in the workplace, including workplace harassment and violence.
Offer to Settle: An offer by one party to the other party setting out the terms for which that party is willing to settle a legal dispute.
: The human rights law of Ontario which provides protection from and in the social areas of employment, housing, the receipt and delivery of services, goods and facilities, contracts, and respecting membership in unions, trade or vocational associations.
: The OHRC, established by Part III of the Code, is an independent statutory body which provides for the promotion, protection and advancement of human rights, and builds partnerships across the human rights system. The OHRC was first established in 1961. The OHRC can initiate or intervene in an application before the HRTO in some circumstances and can conduct its own independent inquiries.
Opening Statement: A submission from a party or a representative at the start of a hearing before a court of tribunal, setting out a party’s position on the issues in the legal dispute. The HRTO may allow an opening statement in a hearing of an application under the Code but it is not required to do so.
Ontario Court of Justice: A provincial court of record in Ontario. The court sits at more than two hundred (200) locations across the province and oversees matters relating to family law, criminal law, and provincial offences.
Ontario Superior Court of Justice: The Superior Court has three specialized branches: Divisional Court, Small Claims Court, and Family Court. The Superior Court has inherent jurisdiction over civil, criminal, and family law matters at common law.
Ontario Superior Court of Justice (Divisional Court): The Divisional Court is a branch of the Superior Court of Justice of Ontario. It is an appeal court, not a trial court. It hears appeals and applications for judicial review.
Onus of Proof: Relates to the burden on a party to establish the facts and law required to prove a legal case. Often used interchangeably with burden of proof.
Order: An authoritative command or instruction from a court or tribunal after a hearing. An order at the HRTO usually sets out what a party must do (or not do), such as pay monetary compensation or develop a human rights policy. Distinguishable from a judgment or decision which sets out the facts, law and analysis.
Organizational Respondent: A respondent to a HRTO application that is not an individual person and pay be a corporation, company, non-profit organization or other institutional entity. Distinguishable from a personal or individual respondent.
: Any person or organization entitled to participate in a proceeding. The primary parties at the HRTO are the applicant and the respondent. Sometimes the HRTO allows other parties to participate in the hearing, such as the OHRC, a union, or any other person or organization that may be added as an affected party.
Perceived Grounds: The Code protects people if they are treated differently because they are perceived to be a member of a protected group, even if this view is not accurate. For example, in a workplace, an employee may be perceived or presumed to have a disability when, in fact, no actual disability exists. See section 10(3) of the Code.
Personal Respondent: A person or individual named as a respondent in an HRTO application. Distinguishable from organizational respondents, such as corporations and companies.
Place of Origin: A prohibited ground of discrimination not defined in the Code. People should not be discriminated against or harassed because they are from outside Canada. The Code may even cover people from a particular place within Canada. A person’s place of origin is often related to other grounds in the Code, such as ethnic origin or race.
Pleadings: The formal legal documents served and filed that make up a legal dispute. At the HRTO, this often refers to the documents prior to the HRTO mediation stage, namely the Application (Form 1), Response (form 2) and Reply (Form 3).
Poisoned Work Environment: A poisoned work environment is created when a workplace is hostile or unwelcoming because of insulting or degrading comments or offensive actions aimed at an employee or others. Usually there is a series of events or incidences although such an environment may, in exceptional circumstances, occur based on a single event or incident.
Practice Directions (HRTO): HRTO practice directions support the HRTO’s Rules and provide guidance about what the HRTO expects of the parties and what the parties can expect of the HRTO. They help parties to understand the HRTO Rules. There are currently eighteen (18) HRTO practice directions.
Pregnancy: The right to equal treatment without discrimination includes where a woman is, was or may become pregnant, or because she has had a baby. Pregnancy is a characteristic that is linked to a woman’s sex, and discrimination because of pregnancy is discrimination based on sex. See section 10(2) of the Code.
Prejudice: A common term that has different meanings depending on the specific legal context. It may relate to the dismissal of a legal proceeding. Where a case is dismissed “with prejudice" a party may not re-institute the case. But if a case is dismissed “without prejudice" a party may refile their case. It may also mean that a party has suffered a type of harm because of another party’s action, such as filing an application at the HRTO outside the one (1) year limitation period. See the definition of “substantial prejudice” below. Finally, it may relate to settlement discussions between parties to a legal proceeding. See the definition of “without prejudice” below.
Preliminary Hearing: A preliminary HRTO hearing may deal with one or more of a wide range of procedural matters, such as requests for deferral, requests for early dismissal based on lack of jurisdiction or delay, or disclosure in an application. Distinguishable from a merit hearing.
Prima Facie: A Latin term meaning based on the first impression or accepted as correct until proved otherwise. A prima facie case may be understood as enough evidence from an applicant to establish a presumptive case unless disproved or rebutted. For example, at the HRTO, an application must make out a prima facie case of discrimination before a respondent is legally obliged to present any evidence to defend against the discrimination.
Privileged: Relates to information, communications or documents that is only to be shared and disclosed between specific parties and is not admissible in a court or tribunal and is protected from a summons. For example, solicitor-client privilege protects communications between a lawyer and a client from being disclosed to another person or party to a legal proceeding.
Procedural Fairness: The content of common law procedural fairness requires that a person receive a fair and unbiased hearing before a decision is made that will negatively affect them. There is a basic right to be heard in a legal dispute, relating to a variety of procedural entitlements or protections, including proper notice of a legal proceeding. Moreover, no one should be a judge in their own case, relating to the requirement for independence and impartiality by a legal decision maker. Also referred to as natural justice or administrative fairness.
Process Server: A person who serves legal documents such as writs, summons or notices of examination, usually by way of in person or hand delivery service. In HRTO proceedings, process servers are commonly used in the enforcement of HRTO orders in the courts.
Prohibited Grounds: The Code prohibits discrimination and harassment on any of the following grounds: race, colour, ancestry, place of origin (i.e., where you were born), ethnic background, citizenship, creed (religion), sex, disability, sexual orientation, age, marital status, family status, receipt of public assistance (in housing only) or record of offences (in employment only). Also referred to as the Code’s protected characteristics.
Provincial Jurisdiction: Under Canada’s Constitution Act, 1867, provincial governments have many important powers and jurisdictions, such as the provision of fundamental social services (for example, health, education and welfare), control over civil and property rights, and power over local government. The Code is a statute of provincial jurisdiction in Ontario and the HRTO has only that jurisdiction set out in the Code and another statute, the Statutory Powers Procedure Act.
: A form of remedy. A PIR does not involve financial compensation or other benefit specifically for the applicant. A PIR is meant to have a broader impact that just for the person making the human rights application and the person or corporation responding to it. Examples include ordering a respondent to take part in an educational program, to change hiring practices, to develop non-discriminatory policies and procedures or to develop an internal human rights complaint procedure.
Quash: Quash means to nullify, set aside, void or declare invalid. For example, the Divisional Court may quash an order of the HRTO in an application for judicial review and send the matter back to be re-heard.
Question of Fact: An issue of fact, not law. A question of fact is about what happened or what took place between the parties. A question of fact is resolved by a trier of fact, such as a court of tribunal, weighing the strength of the evidence and credibility of the witnesses.
Question of Law: An issue of law, not fact. Questions of law deal with the scope, effect, and application of a legal rule or test to be applied in determining the rights of the parties.
Question of Mixed Fact and Law: The application of a set of facts to a legal standard or principle. A claim of discrimination under the Code is a question of mixed fact and law as the HRTO must find the facts and apply the relevant legal principles in order to rule on the application and whether there is a Code violation.
: A request made by a party to the HRTO asking it to reconsider its own decision. It is available only for final decisions, not interim decisions, and only on a specific set of criteria. The HRTO may also initiate its own reconsideration where it considers it appropriate to do so. See HRTO Rule 26.
: A prohibited ground of discrimination under the Code but only in the social area of employment. Record of offences is narrowly defined in subsection 10(1) of the Code to mean a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment. This provision applies to convictions only, and not to situations where charges only have been laid.
Regulation: A form of law that is passed under an Act, statute or legislation but is not itself legislation as passed by an official legislative such, such as the Ontario legislature. There is only one regulation under the Code – Regulation 290/98 – regarding the allowable business practices of landlords in selecting prospective tenants.
Release: A release is a legal instrument that acts to terminate any legal liability between the parties. A release clause is usually contained in a settlement of a legal dispute and includes a prohibition on any further legal proceedings regarding the events that gave rise to the legal dispute.
Requisition: A formal authoritative demand for something to be done. For example, when enforcing a HRTO order by way of a writ of seizure and sale, a requisition for the writ must first be filed at the court in order to obtain the writ.
: A remedy is ordered by the HRTO at the conclusion of a hearing if the HRTO finds that the applicant’s rights under the Code have been violated. The remedy can be an order enforcing the applicant’s rights or can be redress or compensation for the violation. Examples of HRTO remedies include monetary damages, public interest remedies, and interim remedies.
: The applicant’s answer (Form 3) to the respondent’s Response (Form 2) to the Application (Form 1). The reply is intended to deal only with new matters that are raised in the Response (Form 2). A reply must be delivered at the HRTO within twenty-one (21) days after the Response (Form 2) was sent to an applicant. See HRTO Rule 9.
Reply Examination: At a trial or hearing, a witness may be re-examined, after cross-examination by the other party, by a representative of the party who has already conducted their examination in chief. Also called a re-direct examination.
Representative: A legal representative is someone chosen to take care of one’s legal proceeding, usually a lawyer or a paralegal. The HRTO has a practice direction on representatives.
: Reprisals or threats of reprisal are acts or threats that are intended to punish an individual who has reported discrimination or harassment or who has refused to infringe the rights of another person. See section 8 of the Code.
: A party may request, using a Form 10, that the HRTO make an order about the application process or an order requiring another party to take a step during the process, up to and including at the hearing. For example, an applicant may request that the HRTO allow the application to be amended; an employer may ask that a manager’s name be dropped from the application; or a party can ask the HRTO to order the other party to produce certain documents. See HRTO Rule 19.
: The respondent’s answer to the Application (Form 1). A Response (Form 2) must be delivered within thirty-five (35) days after a copy of the Application (Form 1) has been sent to the respondent by the HRTO. See HRTO Rule 8.
: The party who the applicant alleges has breached the and who must therefore respond to the application. Respondents can be both corporate entities and individuals. Many applications to the HRTO have more than one respondent.
Residential Tenancies Act (RTA): An Ontario statute that sets out the rights and responsibilities of landlord and tenants in residential properties. The Landlord and Tenant Board, an administrative tribunal, adjudicates all disputes under the RTA.
Restitution: A form of remedy. The act of making up for a loss, harm or injury. An example of restitution is when a shoplifter must give back or pay for the item he or she stole.
Rules of Procedure (Civil Rules): Civil proceedings in the Superior Court of Justice are governed by the Rules of Civil Procedure unless otherwise stated. The Civil Rules require the use of a set of prescribed forms for civil proceedings.
: The HRTO procedural rules that govern all applications under Part IV of the . The main purpose of the rules is to provide a fair, open process and to allow for fair and just proceedings. There are two parts to the HRTO Rules. Part I is the Social Justice Tribunals Ontario (SJTO) Common Rules and Part II is the HRTO specific rules.
Relates to the application of the one (1) year limitation period under the Code.
: Where an HRTO application (or any other legal dispute) is resolved by the parties themselves and not decided at a hearing. Most settlements occur before the hearing begins and as a result of parties participating in the HRTO’s mediation process. If a settlement is contravened, a party may bring an application under section 45.9(1) of the Code.
Services, Goods and Facilities: A social area in the Code. Everyone has the right to equal treatment based on a protected characteristic in the receipt and delivery of publicly available services, goods and facilities. See section 1 of the Code. Services does not include a levy, fee, tax, or periodic payment imposed by law. See section 10(1) of the Code.
Sexual Harassment: A form of Code-based harassment. Behavior characterized by the making of unwelcome and inappropriate sexual remarks, conduct or physical advances, often in a workplace setting. Harassment is defined in section 10(1) of the Code.
Sexual Solicitation: The Code protects the right to be free from unwelcome advances or requests for sexual favours made by a boss, supervisor or other person in a position of authority. If the supervisor punishes the person because he or she rejected the advance, this is called reprisal, also not allowed under the Code. See section 7(3) of the Code.
: Social areas that are covered by the are services, goods and facilities, accommodation (housing), employment, contracts and vocational associations. See sections 1, 2, 3, 4 and 5 of the Code. These are the only areas of life where discrimination and harassment are prohibited by the Code.
: A form of remedy. Damages that are intended to compensate an applicant for money they have lost or been forced to spend because of the discrimination. It is meant to put an applicant back in the financial position that they would have been in if the discrimination had not occurred in the first place. Examples include lost income/wages, loss of long-term disability or health/drug benefits and lost pay bonuses.
: Under the , the OHRC can request that the HRTO refer a case to the Divisional Court in order to obtain an opinion from the Divisional Court on a question of law. See HRTO Rule 27.
: A statement that verifies that documents have been delivered to other parties or other persons. A party responsible for delivering a document under the Rules must file a with the HRTO. See HRTO Rule 1.23.
Statutory Powers Procedure Act (SPPA): The SPPA sets out basic minimum standard procedural rules for most - but not all - of Ontario's tribunals, and sets out where a tribunal may itself make rules governing its proceedings. The SPPA applies to HRTO proceedings except to the extent that the HRTO’s Rules provide for a different procedure.
Submissions: Submissions are the legal argument explaining why a party believes a court or tribunal should decide in their favour. Submissions may be oral or written and usually include reference to the facts of the case and the applicable legal principles, often occurring at the conclusion of the hearing after all the evidence has been submitted.
: The HRTO may refuse to hear an application if they are of the opinion that the substance of the application has already been dealt with in another proceeding, such as, for example, a decision or settlement of an arbitration of a union grievance. See HRTO Rule 22 and section 45.1 of the Code.
Substantive Equality: A fundamental aspect of human rights law that is concerned with equitable outcomes and equal opportunities for disadvantaged and marginalized people and groups in society and aimed at preventing systemic discrimination
: A hearing in which the HRTO will decide whether to dismiss the application, or part of an application, on the basis that it has no reasonable prospect of success. A summary hearing may be initiated by the HRTO or requested by a respondent. See HRTO Rule 19A.
: A document that requires the attendance of a witness or that documents be produced at a hearing. Delivery of a summons to a witness is the responsibility of the party who obtained the summons. Summons documents can be obtained from the Tribunal. See HRTO Rule 3.
Supreme Court of Canada: The highest court of Canada and the final court of appeals in the Canadian justice system. Its decisions are the ultimate application of Canadian law and binding upon all lower courts of Canada, except to the extent that they are overridden or otherwise made ineffective by federal or provincial legislation.
Systemic Discrimination: Patterns of behaviour, policies or practices that are part of the structures of an organization, and which create or perpetuate disadvantage for marginalized persons. Whether by design or impact, systemic discrimination the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics. For example, systemic racial discrimination. Also referred to as institutional discrimination.
Tort: A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which the courts may impose legal liability. In Ontario, there is no freestanding cause of action known as a tort of discrimination.
Tribunals Ontario: Tribunals Ontario is a group of fourteen (14) adjudicative tribunals that play an important role in the administration of justice in Ontario, including the HRTO. The tribunals are the Assessment Review Board, Animal Care Review Board, Child and Family Services Review Board, Criminal Injuries Compensation Board, Custody Review Board, Fire Safety Commission, Human Rights Tribunal of Ontario, Landlord and Tenant Board, Licence Appeal Tribunal, Ontario Civilian Police Commission, Ontario Parole Board, Ontario Special Education Tribunal (English), Ontario Special Education Tribunal (French) and the Social Benefits Tribunal.
Undertaking: A promise to do something given by a party, commonly in a formal examination, such as an examination in aid of execution. Rather than interrupting or terminating the examination until the information or document is obtained, the undertaking enables the parties to move on, subject to the requirement to fulfill the undertaking and the right to ask questions arising from the information or document subsequently produced.
Undue Hardship: The legal limit of the duty to accommodate. Where the severe negative effects outweigh the benefit of providing accommodation it may be said that the undue hardship has been reached and the accommodation may not be provided. The three factors considered for undue hardship under the Code are financial costs, outside funding, and health and safety risks. See section 17 of the Code.
Unfairness: Allegation of general unfairness are not within the jurisdiction of the HRTO. Unfair treatment must be linked to a Code protected characteristic in order to be found to be discrimination. The Code does not prohibit all forms of unfair treatment, only that unfair treatment where the evidence shows the treatment received by an applicant is connected to a Code ground.
Vexatious Litigant: A person whose legal actions are brought solely to harass or subdue the opposite party. Often there is a series of repetitive, burdensome, and unwarranted filing of meritless claims. Filing vexatious litigation is considered an abuse of process and may result in sanctions, including being barred from litigating without permission from the court or tribunal.
Viva Voce: A Latin term that means “by voice.” In law, the term refers to evidence which is given orally to a court or tribunal by a witness' word of mouth.
Vocational Associations: A social area in the Code. Vocational associations include trade unions, and associations of self-governing professions, such as lawyers and the Law Society of Ontario. See section 4 of the Code.
: Where an applicant decides they no longer wish to proceed with their application at the HRTO. See HRTO Rule 10.
Without Prejudice: A legal rule that will generally prevent statements made in a genuine attempt to settle an existing dispute from being put before the court as evidence against the interest of the party which made them. Negotiations to settle a case are often done on a “without prejudice” basis between the parties.
Witness: A witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, in a court or tribunal of what he or she knows or claims to know about the events giving rise to the legal dispute.
Writ of Seizure and Sale: A method of enforcing a debt. Issued by a court that allows a creditor to seize ownership of a property from a debtor. Used to take possession of property when a debtor has failed to make payments legally owed to the creditor.
Workers Safety and Insurance Act (WSIA): An Ontario statute, the purpose of which is to provide compensation to workers who sustain injury in the course of their employment or who suffer from occupational disease, to provide health care benefits to those workers and to provide for rehabilitation services and programs to facilitate the workers’ return to work.