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Completing the Application (Section 8) – The Facts

This guide is general 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 (January 2021). 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.

  1. Introduction
  2. How do you set out the facts in an application?
  3. What is an example of how the facts might look like in an application?
  4. What if the application is about a discriminatory policy or practice?
  5. What if a description of every incident or event of discrimination is not included in my application?

Introduction

The Human Rights Tribunal of Ontario’s (HRTO) application (Form 1) is the formal legal document that starts an application on its way through the HRTO process. It sets the stage for everything that the HRTO will deal with in the management, processing, and adjudication of the application.

It is therefore very important that you take the time you need to consider what you will write down in your application. Often, it will take several drafts of your application to get the right information down and in the right order.  The goal is to be clear and concise and to use the simplest language that is available.

The application asks many different questions designed to help you think about what will be important in terms of establishing that there may have been a violation of the Human Rights Code (Code).

A very important part of your application, however, is the section that asks an applicant to provide a detailed first-person account of the events or incidents that led to the decision to complete an application.

This means that an applicant must describe what happened that makes them believe they were subject to discrimination or harassment under the Code. This part of the application is found in the Form 1 at Question 8 – What Happened?

Rule 6.2 of the HRTO’s Rules of Procedure (HRTO Rules) requires you to set out all the facts that you are relying on to support your claim of discrimination.  Rule 6.2 says that an application must:

  • provide the information requested in every section of the application form and the related supplemental form(s) and Form 4 (if applicable);
  • set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened; and
  • give the names of person(s) or organization(s) alleged to have violated the applicant’s rights under the Code.

For more assistance and information on completing your application, visit the HRTO’s website and review their Applicant’s Guide.


How do you set out the facts in the application?

You should tell your story using numbered paragraphs, giving the information in chronological order.

This means that you should start from the beginning and end on the date of the last incident of discrimination in your application.

You must explain each event in detail. For each event, include:

  • what happened;
  • who was involved;
  • when it happened (day, month, year); and
  • where it happened.

Provide as much detail as you need to, so that the HRTO knows exactly what happened, who was there, when it happened, and where it happened.

Also, if the way you were treated is different from the way other people were treated, be sure to explain why you think that to be the case.

Your sentences should be short, and your paragraphs should not go on for too long. Try to avoid writing one big block of text that fills up an entire page or more with no paragraph breaks. This can be hard to read and understand and it is important that the HRTO be able to understand fully and clearly what an application is about.

Often, it may be better to attach a separate document (called a schedule) at the end of the application form which you can call  - “Schedule A –What Happened?”

If you decide to do this, you can, at section 8 of your application, write in “See attached Schedule A” and that will advise the reader to go to the end of the application to see your answer to section 8.

Remember to describe the events that happened rather than simply stating conclusions about those events. For example, compare the following two (2) descriptions of the same event:

Example A: In the meeting on December 15, 2020, Mary acted in a rude and insulting way.

 

Example B: In the meeting on December 15, 2020, Mary raised her voice at me in the meeting. She told me that I was not helping the company by taking so many days off.

She told me that everyone else was chipping in to fill in when I was not around and that this was not fair to the other employees. I did not know what to say. Then Mary got up and walked out, slamming the door behind her.

Example A does not really tell the reader anything about what happened. Example B describes what happened rather than just stating a conclusion or an opinion about Mary’s behavior. It informs the reader about why you think Mary’s behaviour is “rude” and/or ‘insulting”.

You could start with a sentence such as in Example A, but you should then fill in the details to flesh out the events that you are relying on to establish your case. That is what Example B does.

 


What is an example of how the facts might look like in an application?

Below is a very short example of an application arising in an employment context, showing how you can set out your facts for section 8.

Note that the sentences are short and straightforward and that there is not too much information in each of the sentences and paragraphs. This makes it very readable and easy to understand.

This example incorporates all the four (4) questions - whowhatwhen and where - that should be included in your description of all the events that you are claiming amount to discrimination or harassment under the Code.

 

This example is not intended to represent a fully detailed and complete application. It is intended to just provide a short illustration of how to describe directly and simply what happened and the events giving rise to the application.

 

Schedule A: What Happened?

September 5, 2020
 
1. Mary Jones (my supervisor) and Frank Carter (the Human Resources Manager) had a meeting with me and told me that I was missing too much work. I told Mary and Frank that I have depression and sometimes have to miss work because of it. They said that I would have to “try to do better” and to “not miss work”.

2. This happened at the ABC Corporation Ltd.’s office in Toronto.

3. Mary told me that I would have to try to do better. Frank told me not to miss work.

4. It was unfair for Mary and Frank to say what they did because sometimes I had to miss work because of my depression.

October and November 2020
5. I had to miss several days (approximately 2 a month) during the fall. I don’t remember the exact dates I missed.

6. I gave Mary a note from my family doctor which explained that my absences were caused by my depression, but Mary told me the note “wasn’t good enough”.

7. This happened at ABC Corporation Ltd.’s office in Toronto.

8. It was unfair for Mary to tell me the note “wasn’t good enough” because I have depression and wasn’t able to go to work.

December 17, 2020
9. Mary and Frank had another meeting with me. They told me that I was fired for missing too much time from work. When I explained again that I missed work because of my depression and that I had tried to give Mary a doctor’s note in the summer, they did not care and fired me anyway.

10. This happened at ABC Corporation’s office in Toronto.

11. Mary told me I was fired. Frank gave me a letter signed by him that said I was fired for missing too much time from work.

12. I believe that I was fired because I sometimes had to miss work because of my depression. I was a good employee. I am not aware of any performance related problems with my work.


What if the application is about a discriminatory policy or practice?

In some cases, there may be a rule, policy or practice that unintentionally impacts particular people and results in unequal treatment.

If the application is about a policy or practice that has a negative impact on an applicant, the applicant should be sure to include a description of the policy or practice and describe how its impact is related to a Code ground.

For example, an employer may have a rule that male employees must be cleanshaven. Using this rule, the employer may refuse to hire a Sikh man, because according to the Sikh religion he cannot shave. While the rule is not intended to exclude Sikh men from a job, it has a negative effect on Sikh men.

This type of unintentional discrimination is called constructive discrimination. In these types of applications, unless the employer can show that a change or exception to the rule would be too costly or create a health and safety danger and cause undue hardship, the employer should agree to change the rule.


What if a description of every incident or event of discrimination is not included in an application?

An applicant should do their best to describe every incident or event of alleged discrimination and explain each one in detail. It is very important to include every incident that an applicant claims is discrimination or harassment.

It may not always be possible for an applicant to raise new incidents of discrimination or harassment at the hearing, later in the HRTO process, if they are not mentioned in the application.

For example, if the application that alleges the discrimination is based on the grounds of ethnic origin, ancestry and colour and then you later wish to change it to add the ground of age, you will have to request an amendment to the application at the HRTO.

In general, the closer you try to do this to the application’s hearing date, the harder it will be to get the amendment from the HRTO. You can add details through witness statements (which are required later in the HRTO process) but it must relate to matters that are already described in the application.

This is why, as mentioned above, you need to take as much time as you need (without going beyond the one (1) year limitation period for filing a claim) in order to ensure that your application is as complete and accurate as it can be at the time that you file it.

Trying to change or amend an application later can be a lot of extra work and there is no guarantee that the HRTO will permit the amendment that is requested. The HRTO will consider the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and any prejudice to a respondent.

See, for example, Darzinskas v. One Tiger Yoga Inc., 2020 HRTO 433 (CanLII). The HRTO denied both the applicant’s request to amend the application and the request to amend the remedies, and the respondents’ request to amend the Response (Form 2).