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.
- Who may request a deferral of a HRTO application?
- If a respondent or the HRTO seeks to defer a HRTO application, may I make submissions?
- How will the HRTO decide whether to defer a HRTO application?
- When the other legal proceeding has concluded, may I re-activate the deferred HRTO application?
- If the HRTO application was deferred, does the other legal proceeding have to conclude before the HRTO application may be re-activated?
- If the HRTO defers a HRTO application, may a request for reconsideration be made?
It is common for there to be multiple legal proceedings taking place at the same time that are related to the same human rights issues and facts that may underlie an Application (Form 1) filed under the Human Rights Code(Code) at the Human Rights Tribunal of Ontario (HRTO).
These other legal proceedings are often ongoing and have not yet concluded. In these circumstances, the question arises as to whether the HRTO application should continue to proceed at the HRTO, or whether it should be deferred (i.e., postponed) until the conclusion of the other ongoing legal proceeding.
This issue of deferral arises because the HRTO is not the only legal decision-maker that can decide human rights issues under the Code. The substance of an HRTO application may also be part of another ongoing, unconcluded legal proceeding, such as:
- a union grievance procedure under a collective agreement at a labour arbitration;
- a civil action before the Ontario Superior Court of Justice;
- a hearing before an officer under the Employment Standards Act;
- a hearing under the Workplace Safety and Insurance Act; or
- a hearing under the Residential Tenancies Act before the Landlord and Tenant Board.
If the other legal proceeding is ongoing when a HRTO application is filed, the HRTO may decide to defer the HRTO application until the other legal proceeding has concluded. Section 45 of the Code empowers the HRTO to defer applications in accordance with the HRTO Rules of Procedure (HRTO Rules).
A request for a deferral of a HRTO application may be made by an applicant, a respondent or may be initiated by the HRTO itself. Most requests for a deferral are made by respondents.
An applicant, at the same time as they file an HRTO application, may ask the HRTO to defer consideration of the HRTO application if there are other legal proceedings dealing with the same subject-matter of the HRTO application.
Where an HRTO application is filed with a request for a deferral, the applicant must include identifying information about the other legal proceeding dealing with the subject matter of the a HRTO application and a copy of the document that commenced the other legal proceeding.
A respondent often makes their request for deferral in their response to an HRTO application. A respondent must fill out section 8 of a Response (Form 2) and describe the other proceeding (e.g., a union grievance) and request that the HRTO defer the HRTO application until the union grievance is concluded.
At other times, such as when a respondent may be unaware of the other legal proceeding at the time their Response (Form 2) is filed, a respondent may file a Request for Order During Proceedings (RODP). See HRTO Form 10 and HRTO Rule 19 for more information about RODP and the Centre’s self-help guide: Requests for Orders During Proceedings.
Finally, the HRTO itself may initiate a deferral on its own motion where it believes that another legal proceeding may be dealing with the same facts and issues as set out in the HRTO application. See HRTO Rule 14.1
Yes. The HRTO will not defer the consideration of an HRTO application without first giving all the parties, and any other affected persons or organizations identified in the application, notice of its intention to consider deferral of an application and an opportunity to make submissions about the request for deferral. See HRTO Rule 14.2.
The deferral of an HRTO application is intended to ensure that other legal proceedings dealing with the same human rights issues do not run concurrently (i.e., at the same time), thereby raising the possibility of inconsistent decisions from different tribunals.
In general, the HRTO will defer an HRTO application where the other legal proceeding clearly addresses the same facts and issues that form the basis of a HRTO application. For example, an ongoing union grievance may claim that an employer failed in its duty to accommodate an employee’s disability related needs and the HRTO application makes the same human rights claim on the same facts.
A deferral, however, is not automatically granted by the HRTO simply because there is another ongoing legal proceeding. Each case is different and must be assessed on its own facts. Relevant factors applied to decide whether to defer a HRTO application include:
- the subject matter of the other legal proceeding;
- the nature of the other legal proceeding;
- the type of remedies available in the other legal proceeding; and
- whether it would be fair overall to the parties to defer, having regard to the status of each legal proceeding and the steps that have been taken to pursue them.
See, for example, Beange v. T. Bell Transport Inc., 2020 HRTO 784 (CanLII), where the HRTO deferred consideration of the HRTO application pending the outcome of a proceeding at the Workplace Safety and Insurance Board.
When the other legal proceeding has concluded, will the HRTO reactivate the deferred HRTO application?
Yes, but only if you file the request for reactivation on time.
The request must be filed no later than sixty (60) days after the conclusion of the other legal proceeding. A request to reactivate must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other legal proceeding, if there is one.
It is very important to file your request to re-activate your application on time and without delay. Getting an extension of time from the HRTO can be very difficult to obtain in many cases. See, for example, Searle v. Peterborough Regional Health Centre, 2019 HRTO 1243 (CanLII) where the HRTO dismissed an applicant’s request to reactivate their application due to an eight and a half (8.5) month delay beyond the sixty (60) day time limit.
If a HRTO application was deferred, does the other legal proceeding have to conclude before the HRTO application is reactivated?
Yes, almost always. In almost every case, you must wait until the other legal proceeding has concluded before you can request to reactivate a HRTO application.
There are some very limited circumstances, however where the HRTO may, on its own motion under Rule 14.5 of the HRTO Rules, require a deferred application to proceed. This will be a relatively rare occurrence and it will depend on the specific facts of your case.
In these rare cases, the HRTO considers whether the HRTO application should, where it has already been deferred, remain deferred. Absent truly extraordinary circumstances, a request by an applicant to re-activate an HRTO application before the conclusion of the other legal proceedings is not likely to succeed.
See, for example, Carroll v. ICAN Independent Centre and Network, 2020 HRTO 415 (CanLII), where the HRTO dismissed the applicant’s request to re-activate the HRTO application, the application remain deferred, and the applicant could request a reactivation upon the conclusion of the Landlord and Tenant Board (LTB) eviction proceeding within sixty (60) days of the receipt of the LTB decision
No. HRTO Rule 26 provides that a party may request reconsideration only where there is a final decision of the HRTO. A final decision is a decision has the effect of finally determining the substance of the HRTO application or a central element of the HRTO application between the parties.
The HRTO has held that a decision to defer an HRTO application is not a final decision subject to its reconsideration powers under Rule 26. This is because a HRTO decision to defer does not finally dispose of the HRTO application, or any part of the application.
A decision to defer is an interim decision that simply decides to postpone the HRTO application until the other legal proceeding has concluded. At that time, an applicant can, under HRTO Rule 14, make a request to re-activate their HRTO application.
See, for example, Cottrell v. Chamberlain Sawmill Ltd., 2020 HRTO 763 (CanLII), where the HRTO denied an applicant’s request for reconsideration as the HRTO interim decision deferring the application did not finally dispose of any of the central issues in the application and was therefore not subject to a reconsideration.