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. The information contained in this guidebook 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 an application for judicial review?
- What factors should I consider if I am thinking about applying for judicial review?
- Prematurity - are all decisions and orders of the Tribunal subject to applications for judicial review?
- Available alternative remedies
- Delay - is there a time limit to apply for judicial review?
- Delay – after I file my application for judicial review, are there other time limits?
- What is the standard of review?
- How do I prepare an application for judicial review?
- After I have served and filed my application for judicial review, what happens next?
- What if I need to make an urgent application for judicial review?
- Can the Tribunal’s decision be postponed while an application for judicial review is waiting to be heard by the Court?
- What happens at the hearing of the application for judicial review?
- When might a court grant an application for judicial review?
- How and when does the Court give its decision?
- What does the court do if it decides to grant the application for judicial review?
Decisions of the Human Rights Tribunal of Ontario (Tribunal) are generally considered to be final decisions and are not reviewable by a court except in accordance with two very specific types of proceedings – requests for reconsideration and applications for judicial review. This guide is only about applications for judicial review.
An application for judicial review of a decision of the Tribunal is made to the Divisional Court, a branch of the Ontario Superior Court of Justice (Court). Applying for judicial review is a time-consuming, complicated and costly procedure. Before considering filing an application for judicial review, you should seek the advice of a lawyer, as soon as possible after receiving the Tribunal decision.
In particular, you need to be aware that there are financial risks in bringing an application for judicial review. Not only will you have to pay for your own lawyer (if you decide to retain one) but, if you lose the application, the Court may order that you pay some of the legal expenses that were spent by your opponent in order to prepare for and argue the application. These legal expenses are known as “costs” and they are often awarded by the Divisional Court in the $5,000-$10,000 range. The unsuccessful party must pay the legal costs of the successful party, so if you lose, you will likely be ordered to pay costs to the other party.
The purpose of judicial review is to ensure the Tribunal has complied with the law in reaching its decision. The Court is usually concerned with determining whether the Tribunal had the authority to make the decision it made (i.e., its jurisdiction) or whether the Tribunal properly exercised that authority (i.e., applied or interpreted the law correctly). The Judicial Review Procedure Act (JRPA) provides that a court has the power to set aside a decision for an error of law, an absence of evidence or where the exercise of the power is unauthorized or invalid.
The main task of the Tribunal is to make findings of fact based on the oral and documentary evidence before it and then to apply those facts to the law. An application for judicial review is not an opportunity to persuade the Court that the Tribunal got the facts wrong, absent exceptional circumstances such as, for example, where the Tribunal made a finding of fact and there was no evidence before the Tribunal upon which it could base that finding of fact.
A judicial review of a Tribunal’s decision is not intended to be a re-argument of your application as you presented it to the Tribunal. A judicial review is also not an opportunity for you to repair any deficiencies in the presentation of your case before the Tribunal. The purpose of judicial review is for the Court to determine if the Tribunal made a legal error in your case. A judicial review has a very narrow focus – did the Tribunal make an error in law that would justify the Tribunal decision being altered or set aside?
Finally, it is important to note that a judicial review application is a “discretionary remedy”. This means that the Court has the power to dismiss a judicial review application on procedural grounds and without making a decision as to the substantive merits of the application. For example, a court may dismiss an application for being premature, for delay or because available alternative remedies were not chosen before filing an application (such as requesting a reconsideration by the Tribunal). These procedural issues are discussed more fully below.
An application for judicial review is a lengthy and complicated legal procedure. Conducting an application for judicial review without the services of a lawyer is a difficult task. Where possible, you should obtain legal advice before starting any application for judicial review, including advice about whether judicial review is appropriate for your case, what your chances of success may be if you decide to proceed and what the possible negative financial consequences could be if you do not succeed
Also, it is useful to do some prior research on the law that will affect your application, including other decisions of the Divisional Court. You can examine the Rules of Civil Procedure (Rules) that will apply to your application, online at e-laws. You can find Divisional Court decisions on line.
Several Ontario statutes (or Acts) and regulations set out the procedure to be followed to apply for judicial review. The procedural requirements are set out primarily under Rules 38 and 68 (under the Rules) and the JRPA. If you are thinking of applying for a judicial review, you should closely review Rule 38, Rule 68 and the JRPA. Several other rules, in addition to Rules 38 and 68, also apply to applications for judicial review. You will need to be familiar with all of them.
The specific procedural steps that you will need to take are set out below at: How do I prepare an application for judicial review?
Prematurity - are all decisions and orders of the Tribunal subject to applications for judicial review?
In general, only final decisions of the Tribunal are subject to applications for judicial review; interim decisions are not usually reviewable.
Interim decisions are those that do not finally determine the merits of the human rights application, the rights of the parties or finally resolve the dispute between the parties. Interim decisions are frequently procedural orders and include, for example, orders about production of documents, amendments to an application or response, or adjournments or deferrals. .
In contrast, final decisions are rulings as to the liability of the parties (i.e. whether the Code has been breached) and remedial orders (e.g. whether to award monetary compensation and/or public interest remedies, such as human rights training).
The Court will not generally interfere before the end of the Tribunal proceedings except in the clearest of cases. In most cases, any attempt to judicially review an interim decision of the Tribunal will be dismissed by the court as being premature. The Court is very reluctant to intervene in proceedings that are still ongoing before an administrative tribunal. See Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (CanLII), for a discussion of the concept of prematurity at paragraphs 38-47.
Am I required to request reconsideration at the Tribunal before I apply to the court for judicial review?
The Court has the power to dismiss an application for judicial review if the applicant has not first used an internal review procedure that was available to them. A Court may require an applicant to have exhausted their rights of any internal review procedure before bringing an application for judicial review.
The Court’s longstanding view is that an applicant should exhaust all his internal remedies and/or appeal routes within an administrative regime before seeking judicial review. Although there are exceptions to this rule, the most prudent approach is to file a request a reconsideration at the Tribunal before you file an application for judicial review.
The Tribunal has issued its own Rule of Procedure governing requests for reconsideration (Rule 26) as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers. The Tribunal Rules and Practice Direction are both available on the Tribunal’s web site. It is a good idea to thoroughly review Rule 26 and the Practice Direction before you decide to make a request for reconsideration.
Yes. First, if your Tribunal decision is dated July 8, 2020 or after then you have thirty (30) days to commence an application for judicial review. This is a recent change to the Judicial Review Procedure Act, that came into effect with the passage of Bill 161, Smarter and Stronger Justice Act, 2020, which became Ontario law on July 8, 2020.
If you do not meet the thirty (30) day deadline, then you would have to ask the Court for an extension of time to be able to commence your application for judicial review. The Court may extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
Second, if your Tribunal decision is dated July 7, 2020 or before then the time period for an application for judicial review is still governed by the pre-Bill 161 Ontario jurisprudence. The Courts have applied a general rule that an application for judicial review must be commenced within six (6) months. But it is a good idea to commence your application sooner. You should be able to do so within thirty (30) to sixty (60) days.
The Court always retains a discretion to dismiss an application for any delay past the six (6) month time period. The Court will typically examine the length of the delay, the explanation for a delay, and any prejudice to the respondent by the delay in commencing your application for judicial review. See Allen v. Bricklayers Masons Independent Union of Canada Local 1, 2020 ONSC 3369 (CanLII) where an application for judicial review was dismissed due to excessive delay.
Yes. There are several procedural time limits that will affect your application for judicial review, which are set out in the Rules and, in particular, in Rules 38 and 68. These time limits exist to make sure that applications for judicial review proceed in a timely way. A failure to comply with a procedural time limitation may result in the Court awarding costs or ordering judgment against you.
For example, an applicant is required to deliver his or her application record and factum to the Court within thirty (30) days after the Tribunal’s record of proceeding is filed with the Court [see Rule 68.04(1)(a)].
Another important time limit in the Rules addresses dismissal of applications for delay: Rule 68.06. An application can be dismissed a) by a motion brought by a respondent to the application or b) by notice from the court registrar.
- Motion by a respondent: If the applicant has not either i) delivered an application record and factum within thirty (30) days after the Tribunal files the record of proceedings with the court or ii) filed a certificate of perfection with the court under Rule 68.05(1) then the respondent may make a motion on ten (10) days’ notice to the applicant to have the application dismissed for delay [see Rule 68.06(1)].
- Notice by the court registrar: If the applicant has not delivered an application record and factum and filed a certificate of perfection within one (1) year after the application was commenced, the registrar may serve notice on the applicant that the application will be dismissed for delay unless the applicant cures the default (i.e., the applicant must file and serve all the documentation that is necessary in order for the application for judicial review to be listed for hearing). Where an applicant fails to cure the default within ten (10) days after service of the court registrar’s notice, the registrar will make an order dismissing the application for delay (Form 68C), with costs [see Rule 68.06(2)].
The standard of review is an important but very complicated legal concept in judicial review applications. It is too big a topic to fully discuss in this guidebook. However, it is important to know what standard of review may apply to the Tribunal decision so that you can properly argue this aspect of your case.
Section 45.8 of the Human Rights Code (Code) provides:
45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
The effect of section 45.8 is that it is not easy to have a decision of the Tribunal altered or set aside by the Divisional Court. An applicant has the burden of persuading the Court that the Tribunal’s decision is wrong in law. The Court will generally adopt a position of deference to the Tribunal. In simple terms, this means that the Court will show some hesitation in overturning a decision of the Tribunal.
The concept of standard of review addresses this question – to what extent should the Court defer to the decision of the Tribunal? In deciding this, two important factors considered by the Court are the nature of the issues raised in the judicial review and the relative expertise of the Tribunal and the Court with respect to the nature of the issue(s) raised.
The leading decision in Canada on the standard of review is Dunsmuir v. New Brunswick,  1 S.C.R. 190, (Dunsmuir) which explains that there are two (2) standards of review - correctness and reasonableness. The correctness standard is the least deferential which means that the Tribunal’s decision must be right and not just within a range of acceptable or reasonable outcomes. The reasonableness standard is deferential which means that the Tribunal must come to a result that is within the range of reasonable outcomes and the Court does not necessarily have to agree with the Tribunal’s decision.
What standard of review applies to the Tribunal?
Section 45.8 of the Code states that the standard of review of a Tribunal decision is “patently unreasonable” (i.e., not just an unreasonable decision but a very unreasonable decision). However, it is important to note that section 45.8 predates the Supreme Court’s decision in Dunsmuir, which found that the standard of patently unreasonable should be discarded. This means that the Courts have not generally directly applied the standard of “patently unreasonable” but have indicated that section 45.8 is a clear legislative signal that Tribunal’s decisions are to be owed the highest deference.
There have been a number of important Court decisions that have analyzed the standard of review of a Tribunal decision under the Code. See, for example:
Shaw v. Phipps, 2012 ONCA 155 (at paragraph 10)
Peel Law Association v. Pieters 2013 ONCA 396 (at paragraph 132)
Ontario (Community and Social Services) v. WB, 2011 ONSC 288 (at paragraphs 19-28)
In most cases before the Divisional Court, the standard of review applied will be reasonableness. This means that the question the Court asks itself is whether the Tribunal decision is defensible on the facts and the law and the result is a reasonable one.
Once you have received the Tribunal’s decision, you should review it carefully. If you decide to apply for judicial review, you should immediately collect and organize all your documents that were used in your Tribunal proceeding. As noted above, it is a good idea to seek legal advice before deciding to file an application for judicial review.
Step 1: Complete Your Notice of Application for Judicial Review
An application for judicial review to the Divisional Court under the JRPA must be commenced by Notice of Application to the Divisional Court (Form 68A). If you are the person applying for a judicial review, you are called the “applicant” [the person and/or organisations you are applying against are called the “respondent(s)”. Also, the Tribunal itself is entitled to be heard in a judicial review application as a respondent.
You must get the Notice of Application issued at the court office in order to start the proceeding. This means that you must present the application to the court staff and pay the prescribed fee. The court office will date it, sign it, issue a court file number and stamp it with a court seal to verify that it has been issued by the court.
The Notice of Application must state that the application is to be heard on a date to be fixed by the court registrar at the place of hearing (i.e., the place where the Divisional Court is sitting).
There are three parts to an application for judicial review that must be completed by the applicant – i) what the applicant requests as an order from the Court; ii) what the grounds for the application are; and iii) what documentary evidence will be used at the hearing of the application.
- The Order Sought
In general, the applicant seeks that the court set aside the Tribunal order and allow the application for judicial review. The applicant may also request that the matter be sent back to the Tribunal for a re-hearing before a different Tribunal member. Finally the applicant may request their “costs” of the application (i.e., recovering a portion the amount that has been spent by the applicant to pay a lawyer to conduct the application before the court).
- The Grounds for Review
The grounds are the reasons for why the applicant believes that the Tribunal’s decision should be set aside. In general, the Court will only set aside the Tribunal’s decision if you can show that the Tribunal made at least one (1) of the following kinds of legal errors:
- Made an “error of law” such as interpreting a section(s) of the Code incorrectly;
- Made a finding of fact based on no evidence or that is otherwise unreasonable in light of all the evidence;
- Exercised its discretion in an unreasonable way, as, for example, by exercising it arbitrarily, in bad faith, or for an improper purpose;
- Based its decision entirely or predominantly on irrelevant factors, or failed to take statutory requirements into account; or
- Breached the rules of natural justice and procedural fairness, having regard to all of the circumstances. (Note that the Tribunal has a duty to hear the evidence and to offer the parties the opportunity to make submissions on the appropriate outcome, including remedy, in light of the evidence. This is referred to as “natural justice” or the “duty of procedural fairness”).
- The Documentary Evidence
In general, the Divisional Court can only review the Tribunal’s decision based on the evidence before the Tribunal. This evidence is compiled into a “record of proceedings”, which is prepared, served and filed by the Tribunal (not the applicant) after the application for judicial review is served on all the parties. The content of the record is set out at section 20 of the Statutory Powers Procedure Act and includes:
- Application at the Tribunal (Form 1);
- Tribunal’s notice of the hearing;
- Any interim or interlocutory orders;
- All of the documentary evidence filed with the Tribunal (e.g. all affidavits, letters, reports, e-mails, other correspondence, etc.)
- Any transcript of the oral evidence given at the hearing; and
- The Decision of the Tribunal and the reasons given.
Any other documentary evidence is generally not permitted to be used at a judicial review application. This is because the Court is very strict about parties trying to add to the record of proceedings in the judicial review hearing. Often parties may attempt to file sworn statements or “affidavits” with the Court. Affidavits, whether from an applicant or a respondent are generally not allowed by the Court.
An affidavit is a written statement of facts within your personal knowledge which you have sworn or affirmed to be true before a Notary Public or a Commissioner for Taking Affidavits. There are some rare and exceptional circumstances where affidavit evidence may be admissible as, for example, to show that there was breach of procedural fairness that is not apparent from the record of the proceedings.
The law on the use of affidavits on applications for judicial review is complicated and you should consult a lawyer who may help you decide whether your application is one in which affidavit evidence may be appropriate. The leading Ontario case is Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A).
Generally, your affidavit should only contain information (i.e., evidence) that the Tribunal considered when it made its decision. You cannot include evidence that the Tribunal did not see or hear, such as new information that you have discovered since your Tribunal hearing.
Remember that your affidavit is not a legal argument. (You will present your legal argument in a separate document called a “factum” which is discussed later in this guidebook). Your affidavit would set out the relevant facts and explains what happened in the Tribunal hearing.
You should attach to your affidavit any important documents you refer to in the affidavit or that are relevant to your case. The documents have to be numbered and are called “exhibits”. Your affidavit is a very important document and must be carefully prepared. It is a serious offence to swear an affidavit that contains information you know is false.
Step 2: Pay the fee to have your completed Notice of Application issued by the court registrar
For a current list of fees, go to www.e-laws.gov.on.ca and then:
- Choose your language;
- Click on “A” and then select “Administration of Justice Act.",
- Click on Regulations Under the Act; and
- Click on “Superior Court of Justice and Court of Appeal – Fees.”
You should contact the local court office to confirm the current fees.
If you are not able to afford the court fee, you may be eligible to have fees waived. Ask the registry staff for instructions on how to apply to the court to have the fee waived. For more information on fee waiver, go to www.attorneygeneral.jus.gov.on.ca and then:
- Click on your preferred language,
- Click on “Court Services.”; and
- Scroll down to “Court Fees” and click on “A Guide to Fee Waiver Requests.”
Once you have paid the filing fees (or received a fee waiver certificate), the registrar will issue your application for judicial review by:
- Opening a file;
- Giving your case a file number (this is the permanent identification number for your case); and
- Stamping and returning copies of the application to you.
Step 3: Serve a copy of your Notice of Application
Once the Court has issued your Notice of Application for Judicial Review (Form 68A), you must deliver the Notice of Application to the respondents and the Tribunal with it. This is called “service”. The Attorney General of Ontario must also be served because section 9(4) of the JRPA requires this. You must serve your Notice of Application at least ten (10) days before the hearing date if you are serving the respondent in Ontario. If you are serving the respondent outside Ontario, you must do so at least twenty (20) days before the hearing date.
An application for judicial review is not an “originating process” under the Rules and therefore does not need to be served by personal service or an alternative to personal service [see Rule 1.03(1)]. This means that if the other party has a lawyer, you can serve by other methods, including facsimile and courier (see Rule 16 of the Rules for more information regarding methods of service that are applicable).
Serving the Tribunal
You can serve your application on the Tribunal by sending a copy to the Tribunal’s legal staff who will accept service on behalf of the Tribunal. The Tribunal’s address for service is:
Social Justice Tribunals of Ontario
655 Bay Street, 14th Floor
Serving the Attorney General of Ontario
You can serve your application on the Attorney General by sending a copy to the Crown Law Office (Civil Law) of the Ministry of the Attorney General. The Attorney General’s address for service is:
Attorney General of Ontario
Ministry of the Attorney General
Crown Law Office – Civil
720 Bay Street, 8th Floor
Step 4: File your application with the Divisional Court
Once your application has been served on the respondents, the Tribunal and the Attorney General, you must file your application with the court registrar with proof of service. You will need to prepare “affidavits of service” to show the court registrar that you have served the other parties properly in accordance with Rule 16 of the Rules. The form that you will need to fill out is called the Affidavit of Service (Form 16B).
Now you will need to begin to prepare all the other legal documents that are necessary in order for your application to be listed for a hearing. Once again, you must serve your documents on all of the respondents, the Tribunal and the Attorney General and then file all these documents with the court registrar along with proof of service of all those documents.
In legal terms, the process of serving and filing your legal documents is referred to as “perfecting” your application for judicial review. There are a number of documents that must be prepared, served and filed in order to perfect your application. These are 1) an Application Record; 2) a Factum; 3) a Book of Authorities and 4) a Certificate of Perfection.
- Application Record
The applicant must serve and file an “application record”. Rule 68.04(2) sets out the contents of an application record. The application record must contain the following documents, in consecutively numbered pages, in the following order:
- a table of contents,
- a copy of the Notice of Application,
- a copy of the reasons of the court or tribunal whose decision is to reviewed, with a further typed or printed copy if the reasons are handwritten,
- a copy of all affidavits and other materials served by any party for use on the application,
- a list of all relevant transcripts of evidence, and
- a copy of any other material in the court file that is necessary for the hearing of the application.
Note that a “transcript of evidence” is a typed version of the oral evidence and submissions heard by the Tribunal. However, the Tribunal does not make a record of its proceedings and it is rare for a party to record the proceedings. This means that most judicial review hearings do not include a transcript of evidence in the applicant’s application record. For more information see the Tribunal’s Practice Direction on Recording Hearings.
- Applicant’s Factum
As the applicant, you must also serve and file a “factum”. A factum is a concise statement of the law and argument that you intend to present at the hearing of your application. Rule 68.04(3) sets out the contents of the factum. The factum must include the following:
- Part 1: A statement identifying the applicant, as well as the court or tribunal whose decision is to be reviewed and stating the result in that court or tribunal;
- Part 2: A concise summary of the facts relevant to the issues on the application, with specific reference to the evidence;
- Part 3: A statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue;
- Part 4: A statement of the order that the Court will be asked to make, including any order for costs;
- Schedule A: List of authorities referred to; and
- Schedule B: Text of all relevant provisions of statutes, regulations and by-laws.
Your factum is supposed to be a “concise summary” of fact and law. Factums should not be more than ten (10) pages in length. Any factum that is more than thirty (30) pages requires prior approval from a judge of the Divisional Court before it can be filed. See the Practice Direction on Factums in the Divisional Court.
All of these parts and schedules in the factum must be numbered consecutively throughout the factum. It must be signed by the applicant or, if applicable, the applicant’s lawyer. Three (3) copies of your factum must be filed with the court.
In addition, the Court also encourages parties to file electronic versions of their factums and transcripts in judicial review applications to the Divisional Court. For more about filing electronically, see the Practice Direction on Filing Electronic Versions of Documents in Civil Appeals and Judicial Review Applications in the Divisional Court.
- Book of Authorities
A “book of authorities” (or “casebook”) includes all the Tribunal and court decisions and any other authorities (such as excerpts from legal textbooks or articles) that you intend to refer to in oral argument. You should include the entire decision or other authority in your book of authorities except where the decision you wish to include is already included in the Judges' Book of Authorities which is a list of cases commonly used at the Court.
You should also highlight (or sidebar) the relevant portion(s) of the authority so that the Court can easily find and read that portion of the decision or other authority that you want to bring to their attention in oral argument. See the Practice Direction on Books of Authorities.
A book of authorities must be served on the respondents, the Tribunal and the Attorney General before the hearing of your application for judicial review. Often it is filed when the application is perfected but it does not technically need to be filed at that time. Three (3) copies of the Book of Authorities should be filed with the court.
- Certificate of Perfection
A “certificate of perfection” (Form 68B) is your proof that you have perfected your application (see Rule 65.05). It is a certification that all the material required to be filed by the applicant for the hearing of the application has been filed. Also, the certificate must include the names, address and telephone numbers of the lawyers for the parties and/or the names, addresses and telephone numbers of the party or parties that are not represented by a lawyer. You should also include the names, address, and telephone number of the Tribunal and the Attorney General.
When the certificate of perfection has been filed at the Court, the registrar will place the application on a list for hearing and send the Notice of Listing for Hearing (Form 68C) by mail to the parties and the other persons named in the certificate of perfection. The Notice of Listing for Hearing will advise you of the next steps required in order to get a hearing date for your application to be heard by the Divisional Court.
Most applications for judicial review are heard by a three judge panel of the Divisional Court. However, under section 6(2) of the JRPA, an application for judicial review may also be made to a single judge of the Superior Court of Justice where it appears to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
“Leave” (or permission) of a judge is required in these types of circumstances and such leave is granted only in exceptional circumstances. Your case must be one of urgency and the delay required for an application to the Divisional Court must be likely to involve a failure of justice. The test for the required leave under section 6(2) of the JRPA is set out in Savone v. Law Society of Upper Canada, 2013 ONSC 1015 (CanLII). You should speak with a lawyer if you are considering such an urgent application, particularly because if you are unsuccessful it is likely that you will have to pay the legal costs of the responding party.
Can the Tribunal’s decision be postponed while an application for judicial review is waiting to be heard by the Court?
The filing of a judicial review application does not automatically postpone the Tribunal decision from taking effect: see section 25(2) of the Statutory Powers Procedure Act. If a party wants to “stay” (i.e. suspension or postponement) the enforcement of the Tribunal’s decision, it must either bring a motion to Divisional Court or request a stay from the Tribunal itself.
Section 4 of the JRPA authorizes the Divisional Court to make any interim order as it considers proper pending the final determination of the application. Therefore, an applicant may bring a motion to the Court for a stay of the Tribunal decision pending the resolution of the judicial review application.
An applicant seeking to stay the Tribunal order may bring a motion before a judge of the Court or a request for a stay to the Tribunal under Rule 19 of the Tribunal’s Rules of Procedure. The Court or Tribunal applies a three (3) part test in deciding whether to grant a stay or not. The test is set out in RJR MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311. See also Washington v. Toronto Police Services Board, 2009 HRTO 640. In order to obtain a stay of the Tribunal proceedings, an applicant must show that:
- there is a serious issue to be tried;
- it will suffer irreparable harm if the stay is not granted; and
- the balance of convenience favours granting the stay.
The first factor – serious issue – requires a preliminary assessment of the merits of the judicial review application. In general, the Court or Tribunal has taken the view that this is a low threshold and the applicant simply needs to show that the application is neither frivolous nor vexatious.
The second factor – irreparable harm – has been interpreted by the Court to mean harm that cannot be quantified in monetary terms (i.e. that money cannot compensate for the harm if a stay is not granted).
The third factor – balance of convenience – requires an assessment as to which of the parties would suffer greater harm from the granting or refusal of the stay pending a decision on the judicial review application.
There will be three (3) judges of the Divisional Court on the panel. The purpose of the hearing is to provide the parties with the opportunity for oral argument. The Court will have read the factums, the record of proceedings and the books of authorities beforehand and will be very familiar with the case. The point of the hearing is to get the parties to focus on the key issues and arguments. This requires a lot of preparation and practice to be effective.
The judges will have many questions for the parties to help them understand the positions being taken. You should do your best to answer these questions. Avoiding or evading the Court’s questions is generally not helpful and may ultimately lead the Court to view a party as non-cooperative or unhelpful.
The applicant presents their oral argument first. The respondent then provides their argument and the applicant has a right of reply. A reply is the applicant’s opportunity to respond to new matters raised by the respondent, but should not be used to repeat arguments made before the respondent. A reply should be very short and concise.
In addition, the Tribunal will be given the opportunity to make oral submissions. If the Attorney General of Ontario has decided to become involved, a lawyer representing the Attorney General will also be able to make oral submissions to the Court.
As noted above, a Court will generally only grant a judicial review application where there is an error of law. The Court recognizes that the Tribunal has specialized knowledge and experience about human rights and the Code and will normally give the Tribunal’s decision a fair degree of respect.
However, the Court has a general supervisory power to review the Tribunal’s decision-making in order to ensure that the proper legal principles have been set out and applied. It will therefore intervene if it considers it necessary to do so in a given case.
For example, the Court may intervene if it finds that the Tribunal did not give you a fair hearing. It may also intervene if it finds that the Tribunal had no authority to deal with the subject matter of your application. In contrast, a Court will not allow a judicial review application to succeed to correct a technical error made by the Tribunal unless the technical error results in a substantial wrong or a miscarriage of justice.
After the hearing, the Court will give its decision to the parties. Sometimes, the Court will give a brief oral endorsement at the end of the hearing itself. Other times, the Court will reserve its decision and then release written reasons for its decision to the parties at a later date.
There is no rule as to how long a decision will take to be released by the Court when the decision is on reserve. It depends on a number of factors including how complicated the case was and how many legal issues and arguments were raised by the parties. In most cases, however, a decision will be released by the Court within two (2) or three (3) months.
If the Tribunal has made a legal error, the Court will usually “set aside” the Tribunal’s decision. This means that the Court will direct the Tribunal to make a new decision again without making the same error. The Tribunal will schedule a new hearing with a different member of the Tribunal than the one who made the original decision.
In some cases, the Court may decide to make its own order and avoid sending it back to the Tribunal for a new hearing. However, it is rare for the Court to substitute its own order. For example, see Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), at paragraphs 60-65, where the Court dismissed a request to make its own order and instead, as is the usual practice, referred the case back to the Tribunal for its further consideration.