This is general information only. It is not legal advice about your situation. This publication is not a substitute for a lawyer’s research, analysis and judgment. This information sheet is reliable as of the date of publication. You should be aware that the law and procedures under the Human Rights Code and at the Human Rights Tribunal of Ontario are subject to change without notice.
- What is a deferral under section 45 of the Code?
- Who can ask for a deferral?
- If the Respondent or Tribunal seeks to defer my application, will I get a chance to object?
- How will the Tribunal decide whether to defer?
- When the other legal proceeding has concluded, how do I re-activate my deferred application?
- What is an early dismissal under section 45.1 of the Code?
- What other types of early dismissal are there under the Code?
- What steps does the Respondent have to take to try and seek early dismissal of my application?
- If the Respondent or Tribunal seeks an early dismissal of my application, will I get a chance to object?
It is not uncommon for there to be other legal proceedings related to the same issues and facts that underlie an application that has been filed under the Human Rights Code (Code) at the Human Rights Tribunal of Ontario (Tribunal). These other proceedings may be ongoing or already concluded. In such circumstances, the question arises as to whether the application should proceed at the Tribunal, or whether it should be deferred or dismissed.
A common example occurs in the employment context. An applicant to the Tribunal may have filed a union grievance alleging discrimination on the part of the employer that may raise issues and facts that are similar to the substance of the human rights application. This union grievance may have already been decided at the time of the filing of the application the Tribunal or it may be ongoing.
In general, if the union grievance or other legal proceeding is ongoing, an applicant may face a request from a respondent (or from the Tribunal itself) seeking to defer the application. If the grievance or other legal proceeding has concluded, then the respondent (or the Tribunal itself) may suggest that the application be dismissed without proceeding at all.
The Tribunal is not the only decision-maker that can decide human rights issues or claims. The substance of an application to the Tribunal may be part of another type of legal proceeding, such as:
- A union grievance procedure
- A civil action before the Ontario Superior Court of Justice
- A hearing before an Employment Standards Officer
- A hearing before the Workplace Safety and Insurance Board
- A hearing before the Landlord and Tenant Board
If the other legal proceeding is still going on when an application is filed, the Tribunal may decide to defer (i.e., postpone) the application until there is a decision in the other proceeding. Section 45 of the Code empowers the Tribunal to defer applications in accordance with the Tribunal Rules of Procedure (Rules).
The Tribunal may defer consideration of an application at the Applicant’s request, at the request of the Respondent, or on the Tribunal’s own initiative. See Rule 7 of the Rules.
If it is the Respondent that is requesting the deferral, then the Respondent must fill out section 8 of the Response to an Application (Form 2) and:
- Describe the other proceeding (e.g., union grievance or other proceeding)
- Request that the Tribunal defer the application until the other proceeding is completed
Yes. If the Tribunal intends to defer consideration of an application, it will first give the parties (including any identified trade union or occupational or professional organization and any identified affected persons), notice of its intention to consider deferral of the application, and will provide all parties with an opportunity to make submissions.
Deferral of an application is intended to ensure that legal proceedings dealing with the same issues do not run at the same time, thereby raising the possibility of inconsistent decisions on the facts or the law. But a deferral is not automatically granted by the Tribunal simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant to the Tribunal in deciding whether to defer consideration of an application before the Tribunal are:
- The subject matter of the other proceeding
- The nature of the other proceeding
- The type of remedies available in the other proceeding
- 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
Generally speaking, if the human rights issues are being raised in the other proceeding (either directly or indirectly), the Tribunal’s normal approach is to defer until the other proceeding has been concluded.
If you want the Tribunal to proceed with an application which has been deferred you must make a request in accordance with Rules 14.3, 14.4 and Rule 19 (Form 10).
The request must be filed no later than sixty (60) days after the conclusion of the other proceeding. Your request must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if there is one.
Early dismissal may occur under section 45.1 of the Code (and Rule 22 of the Rules) when the Respondent or the Tribunal believes that an earlier proceeding may have made a decision that has already appropriately dealt with the substance of your human rights application.
Section 45.1 empowers the Tribunal to dismiss an application in these circumstances. An application may be dismissed without a full hearing on the merits of the application where the substance of the application has already been decided by another legal proceeding and cannot be re-litigated at the Tribunal. The primary purpose of section 45.1 is to avoid the duplication of proceedings or the re-opening of human rights issues that have already been appropriately dealt with elsewhere.
There are a number of other situations where the Tribunal or a Respondent may seek early dismissal of your application before a full hearing on the merits of your application:
There has been a full and final signed release between the parties
The Tribunal may not allow an application to proceed if you signed a full and final release in an earlier proceeding (e.g. a union grievance). This is permitted pursuant to section 23(1) of the Statutory Powers Procedure Act, which provides that the Tribunal may make such orders or give such directions as it considers proper to prevent an abuse of its process.
An Applicant should be aware that it can be very difficult to argue that a full and final release should not be applied so as to allow your application to proceed. If an applicant argues that they are under some emotional, psychological or economic pressure, or that they did not understand the release because, for example, of a lack of sophistication in legal matters, then this usually will not be enough to persuade the Tribunal that the release should not apply as a basis to dismiss your application.
You should always consider getting independent legal advice before you agree to sign a full and final release.
There is a civil court proceeding requesting a remedy based on the alleged human rights infringement
The courts can deal with human rights issues in some cases (see section 46.1 of the Code) and you are barred from going to the Tribunal if you have also asked for a human rights remedy in court (see section 34(11) of the Code).
The Tribunal has no choice about this – it cannot decide to hear an application anyway, and must dismiss the application if it is brought at the same time as the court proceeding.
There has already been a complaint filed with the Ontario Human Rights Commission
The Transitional provisions of the Code have special rules that deal with complaints which were filed directly with the Ontario Human Rights Commission (Commission) prior to June 30, 2008. In most cases, the Code prevents an applicant from making a new application which is based on the same facts as a previously filed complaint.
However, if between June 30, 2008 and June 29, 2009 there was an active complaint before the Commission the Applicant may have been able to file an application at the Tribunal based on the same subject matter under special provisions of the Code and using the special rules established by the Tribunal.
Refer to the “Transitional” section of the Tribunal’s website or contact the Tribunal for more information.
The application is within the exclusive federal jurisdiction of the Canadian Human Rights Tribunal or is otherwise not within the jurisdiction of the Tribunal
The Tribunal can only hear matters that fall within the scope of the Code and that the Tribunal has the legal authority (i.e., jurisdiction) to deal with.
The jurisdiction of the Tribunal is based on the provisions of the Code. The Tribunal does not have a general power to enquire into claims of unfairness, bias or poor decision-making that are outside of the Tribunal’s jurisdiction. The Tribunal likewise does not have the authority to hear appeals from the decisions of other boards or agencies.
Where an application is beyond the jurisdiction of the Tribunal, it will be dismissed pursuant to Rule 13. For example, the Tribunal does not have the jurisdiction to consider an application if:
- The application does not relate to a ground of discrimination (for example, race or disability) or an area of activity (for example, housing or employment) covered by the Code
- The discrimination happened outside Ontario
- The organization that is said to have discriminated is a federally-regulated company or industry (e.g., a chartered bank, an airline, a television or radio station, a telephone company or a company that operates buses and railways that travel between provinces)
The application is found to have no reasonable prospect of success
The Tribunal may hold a summary hearing, on its own initiative or at the request of a Respondent, 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.
Rule 19A deals with summary hearings. The Tribunal or a Respondent may request a summary hearing where they are of the view that the facts alleged in the application, even if true, may not amount to discrimination under the Code.
Frequently, the purpose of a summary hearing is to allow the Tribunal to assess the nature of the Applicant’s evidence in more detail. The Applicant is given an opportunity to describe the evidence they would present at a full hearing, and to explain how it establishes a link to a prohibited ground of discrimination.
If, during the summary hearing procedure, an Applicant is able to provide further details in respect to his or her allegations of discrimination which were not apparent from the application, and that provide a theory that potentially shows a link between the events and the Applicant’s ground of discrimination (e.g. disability) then the application will not be dismissed but will continue through the Tribunal’s process.
When a Respondent requests an early dismissal of an application for any of the first four (4) reasons set out above – release, civil court proceeding, complaint at the Commission, or exclusive federal jurisdiction - then the Respondent does not have to specifically respond to the allegations in your application [see Rule 8.2 and section 6 of the Response to An Application (Form 2)].
This means that the Respondent does not have to file a full response when they receive your application from the Tribunal. However, the Respondent must:
- Attach a copy of the applicable release, or statement of claim or court decision, or complaint filed with the Ontario Human Rights Commission or its decision
- Include with the Form 2 a complete argument in support of its position that the application should be dismissed
When a Respondent requests an early dismissal under section 45.1 of the Code the Respondent must complete the entire Form 2 and respond to the Applicant’s allegations in the application. The Respondent must name the other legal proceeding, explain why they believe the other proceeding has appropriately dealt with the substance of the application and attach a copy of the document that started the other proceeding and a copy of the decision (see section 7 of the Form 2).
If the Respondent or Tribunal seeks an early dismissal of my Application, will I get a chance to object?
You are always entitled to make submissions to the Tribunal where there is any request for an early dismissal of your application. However, this may be in the form of written submissions only and not submissions in person (or oral submissions).
Section 43(2) of the Code provides that where an application is within the jurisdiction of the Tribunal, the Tribunal must provide the parties with an opportunity to make oral submissions. However, the key issue here is whether the application is within the Tribunal’s jurisdiction.
For example, the Tribunal may believe that your application is within the jurisdiction of the federal Canadian Human Rights Commission because your employer is a federally-regulated business. If that is the application, the Tribunal will notify you of their intent to dismiss your application and you will be given an opportunity to make written submissions to argue why you believe the Tribunal has jurisdiction.
On the other hand, if a Respondent is seeking early dismissal on the basis of section 45.1 and the issue is whether the earlier proceeding has already appropriately dealt with the substance of your application to the Tribunal, then you will be given the opportunity to make both written and oral submissions (see Rule 22).