Human Rights Legal Support Centre

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The Respondent’s Response (Form 2) to an Application

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 (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. Is there a time limit for a respondent to file a Response (Form 2)?
  3. Does a respondent always have to complete a full Response (Form 2)?
  4. What if a Response (Form 2) asks for a deferral of the application?
  5. What if a Response (Form 2) asks for an early dismissal of the application?
  6. What information must a respondent include in their full Response (Form 2)?
  7. What may happen if a respondent does not fully complete a Response (Form 2)?      
  8. What may happen if a respondent does not file a Response (Form 2)?
  9. What happens after a Response (Form 2) is accepted by the HRTO?

Introduction

The Human Rights Tribunal of Ontario’s (HRTO) adjudication process begins when you file an Application (Form 1) at the HRTO. The HRTO then delivers the application to the respondent named in your application.  The respondent is then required, in most cases, to complete and file a Response (Form 2) to the application.  

The purpose of a Response (Form 2) is to permit a respondent to respond to the allegations of discrimination and/or harassment under the Human Rights Code (Code) and other information contained in your application. See Rule 8 of the HRTO Rules of Procedure (HRTO *Rules) for more procedural information about the Response (Form 2).  See also the HRTO’s *Respondent’s Guide (May 2016), which can be found here: (insert hyperlink)

 A respondent, for example, may set out what facts in an application they agree or disagree with and may also include additional facts, issues or other information a respondent believes is necessary in order to fully respond to the application. A respondent may also raise new matters or issues that were not originally included in your application.

Finally, in some cases, a Response (Form 2) may include a request for an early dismissal of an application (e.g., a delay in filing your application or a lack of HRTO jurisdiction to consider the application) or  a request for a deferral of an application (e.g., because there may be an outstanding union grievance that is similar to the substance of your HRTO application). 

Whatever the situation, you should always carefully review the Response (Form 2) when you receive it from the HRTO in order to decide whether you need to prepare, serve an file an applicant’s  Reply (Form 3) to whatever matters the Response (Form 2) may have included. When you receive the Response (Form 2) from the HRTO, you will also get a Delivery of Response notice which contains important information about the HRTO’s deadline to file your Reply (Form 3).

You can find out more information about a Reply (Form 3) in our self-help guide called The Applicant’s Reply (Form 3) found here


Is there a time limit for a respondent to file a Response (Form 2)?

Yes. In order to respond to an application, a respondent must file, unless the HRTO orders otherwise, a Response (Form 2) with the HRTO no later than thirty-five (35) days after a copy of the application was sent to the respondent by the HRTO. See HRTO Rule 8.1.

You should be aware that it is relatively common for a respondent to make a request for an extension of time to prepare and file their Response (Form 2) at the HRTO.   If so, the respondent must advise you of this request for an extension of time and you are entitled to make submissions about the respondent’s request. 

The HRTO will consider the parties submissions and decide about whether to grant the request for an extension of time and, if granted, how long the extension of time will be

The Response is not normally delivered to the other parties by the respondent. After the respondent files their Response (Form 2), the HRTO delivers the Response (Form 2) to you in the same way that the HRTO delivers your application to the respondent. There may be, in some cases, a significant amount of time that passes between the Response (Form 2) being filed with the HRTO and when you receive a copy from the HRTO.


Does a respondent always have to complete a full Response (Form 2)?

No, not in every case. Generally, the HRTO requires a respondent to fill out the entire Response (Form 2) and will not consider any respondent requests to decide any preliminary objections or issues until a full and complete Response (Form 2) is filed at the HRTO.

There are five (5) exceptions to this general rule.  Whether any of these five (5) exceptions may apply to your case will depend on the specific facts and information included in your application. 

The five (5) exceptions are where a respondent’s Response (Form 2) claims that:

  1. a civil court is already dealing with the same matter as in your HRTO application;
  2. the parties have already settled your HRTO application and you signed a release;
  3. the HRTO does not have jurisdiction over your HRTO application because it is under federal jurisdiction;
  4. you made a complaint to the Ontario Human Rights Commission (OHRC) about the same matter as in your HRTO application before June 30, 2008 (i.e., the date when the OHRC stopped receiving complaints under the Code); or
  5. there is another ongoing legal proceeding that is a grievance or **arbitration brought under a collective agreement. See HRTO Rule 8.2.1.

In any of these five (5) situations, a respondent need not fully respond to your allegations in your application. A respondent must, however, attach to their Response (Form 2) either a copy of the applicable release, or statement of claim or court decision, or complaint filed with the OHRC or its decision, or a copy of the document which commenced your grievance and confirm that the grievance or arbitration is ongoing.  

A respondent must also include with their Response (Form 2) a complete argument in support of their position that your application should be dismissed early (in the case of #1- 4 above) or deferred (in the case of #5 above).

Finally, despite these five (5) exceptions to the rule that a respondent must prepare and file a full Response (Form 2), the HRTO may still direct a respondent to prepare and file a complete Response (Form 2) if it considers it appropriate to do so. See HRTO Rule 8.2.


What if a Response (Form 2) asks for a deferral of the application?

In section 8 of the Response (Form 2), a respondent may request that your application be deferred (i.e., postponed) if your HRTO application is already a part of another type of ongoing legal proceeding.

For example, you may have an ongoing union grievance or arbitration, a claim before the Workplace Safety and Insurance Board, a claim at the Ministry of Labour under the Employment Standards Act or a matter before the Landlord and Tenant Board.

Where the other ongoing legal proceeding is a grievance or arbitration under a collective agreement, a respondent can ask for a deferral of your application without fully completing the Response (Form 2). Where the other ongoing legal proceeding is not a grievance or arbitration under a collective agreement, a respondent may still ask the HRTO to defer your application, but the respondent must fully complete the Response (Form 2).

In either case, when the HRTO receives the Response (Form 2) and a request to defer your application, the respondent’s request to defer should include all arguments to support the respondent’s position that your application should be deferred until the other legal proceeding has concluded.

The HRTO may request submissions from both you and any other parties about whether to grant the request to defer your application.

You can find more information about deferrals at the HRTO in our self-help guide called Deferral of an Application found here.


What if a Response (Form 2) asks for early dismissal of the application?

A respondent does not always have to complete a full Response (Form 2) to your application if the respondent makes a request, in section 6 of the Response (Form 2), for early dismissal of your application. As explained above, there are four (4) situations, where this may happen:

In all other cases of early dismissal, while a respondent may still ask the HRTO for early dismissal of your application, the respondent must fully complete and file a Response (Form 2). These cases include where a respondent requests early dismissal of your application, in the Response (Form 2):

  • if there has been another legal proceeding that has already appropriately dealt with the substance of your HRTO application;
  •  if a respondent claims your application was filed late and outside the Code’s one (1) year limitation period;
  • if a respondent claims that your application has no reasonable prospect of success and requests a summary hearing under Rule 19A of the HRTO Rules..

When the HRTO receives the Response (Form 2), the HRTO may ask you for your submissions about the respondent’s  request for early dismissal of your application. After it hears from all parties, the HRTO will decide whether to dismiss the application at this stage of the proceedings. You will be provided the opportunity to make submissions prior to any HRTO decision about an early dismissal of your application.

If the HRTO decides it is not appropriate to dismiss your application at this early stage, the respondent will then be required to fully complete and submit a Response (Form 2).


What information must a respondent include in their full Response (Form 2)?

When a respondent must fully complete a Response (Form 2), a respondent must provide the information requested in each section of the Form 2, respond to each allegation set out in your application and include any additional facts and allegations on which the respondent relies. The Response (Form 2) must include the following information:

  • whether any exemptions under the Code apply (section 10);
  • when the respondent became aware of the allegations in the application, how they responded and what was the outcome (section 11);
  • whether the respondent has a human rights policy, a complaint process, whether you made a complaint and, if so, how the respondent dealt with your complaint (section 13);
  • whether the respondent agrees to mediation (section 14);
  • what important documents the respondent, you or a third party may have (sections 15, 16 and 17);
  • a confidential list of the respondent’s witnesses (section 18)
  • any other important information the HRTO should know (section 19); and
  • a checklist of the required documents (section 20)

If your application alleges discrimination in *employment due to disability, a respondent must also advise, in section 12 of the Response (Form 2):

  • If they knew about your disability related needs before getting your application;
  • what are the requirements or essential duties of your position;
  • whether they have a written policy or other documentation that describes your job requirements; and
  • whether you were unable to perform your job’s requirements because of your disability.

You should read the Response (Form 2) very carefully to be best able to prepare and submit your Reply (Form 3), if necessary, to any new matters that are raised in the Response (Form 2).


What may happen if a respondent does not fully complete a Response (Form 2)?

When a respondent is required to fully complete a Response (Form 2) and the Response (Form 2) is not complete or more information is required, the HRTO may return the Response (Form 2) and tell a respondent what information is missing. A respondent has twenty (20) days to provide the HRTO with the missing information.

If a respondent does not respond to the HRTO’s request to complete the Response (Form 2), a respondent may be bound by the information in their incomplete Response (Form 2).

When the HRTO receives a completed Response (Form 2), it will be delivered to you, and to any other parties to the application.


What may happen if a respondent does not file a Response (Form 2)?          

If a Response (Form 2) is not filed with the HRTO, a respondent may not be given an opportunity to participate further in the HRTO process.

This is a matter of the HRTO’s discretion which it decides on a case by case basis as to what would be most appropriate. The HRTO has broad powers to determine how best to proceed in any application before it, including what to do in the event it does not receive a Response (Form 2). The HRTO has several options available to it when no Response (Form 2) is filed. Under Rule 5.5 of the HRTO Rules where an application is delivered to a respondent who does not respond to the application, the HRTO may:

  • deem the respondent to have accepted all the allegations in the application;
  • proceed to deal with the application without further notice to the respondent;
  • deem the respondent to have waived all rights with respect to further notice or participation in the proceeding; or
  • decide the matter based only on the material before the HRTO.

In some cases, a respondent may not file a Response (Form 2) through no fault of their own. For example, your application may not have properly come to the attention of a respondent for some good reason and a respondent may not be reasonably aware that they were required to file a Response (Form 2).  If this is the case, the HRTO may decide to give a respondent the opportunity to file its Response (Form 2) to your application if it would be reasonable, fair and just to do so.


What happens after a Response (Form 2) is accepted by the HRTO?  

A Response (Form 2) that is accepted by the HRTO will be sent by the HRTO to you, to any trade union, occupational or professional association identified in your application and, to any other respondent or affected person identified in the Response (Form 2). With the Response, the HRTO will send you a Delivery of Response notice which includes the deadline to file a Reply (Form 3) and to respond to any issues identified by the HRTO.

You should carefully review the HRTO’s Delivery of Response notice and the Response (Form 2) when you receive them  from the HRTO in order to decide whether you need to file a Reply (Form 3) or respond to any issues identified  by the HRTO in its Delivery of Response notice.

You can find out more information about an applicant’s Reply (Form 3) in our guide called Applicant’s Reply (Form 3) found here.