Ontario Human Rights Tribunal — Filing Applications, Remedies, and Procedure

Human Rights Code — Protected Grounds and Social Areas

The Human Rights Code RSO 1990 c H.19 (Code) prohibits discrimination and harassment on the basis of enumerated "grounds" in specified "social areas" of activity. Discrimination occurs when a person is treated differently based on a protected ground in a way that disadvantages them or creates a burden, or when a seemingly neutral requirement or practice creates a disproportionate adverse impact on a group identified by a protected ground.

The grounds protected under the Code include: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including gender identity and expression, pregnancy, and breastfeeding), sexual orientation, age (18+; 65+ in employment contexts as of 2005 amendment removing mandatory retirement), marital status, family status, disability (physical and mental), and receipt of public assistance (in accommodation only). The ground of "record of offences" (provincial offence or pardoned federal offence) is protected in employment.

The social areas in which discrimination is prohibited are: services and facilities (Code s.1); accommodation (housing — s.2); contracts (s.3); and employment (s.5). Harassment is prohibited in employment and housing (ss.5 and 2(2)). Sexual solicitation and reprisal (ss.7-8) are separately prohibited.

The Duty to Accommodate

The duty to accommodate requires employers, housing providers, and service providers to make reasonable adjustments to meet the needs of individuals protected by the Code, up to the point of undue hardship. The Supreme Court of Canada established the undue hardship framework in Central Alberta Dairy Pool v Alberta (Human Rights Commission) [1990] 2 SCR 489 — factors include cost, outside sources of funding, and health and safety requirements. In Ontario, the HRTO and courts assess undue hardship based on Code-prescribed factors: cost, outside sources of funding, and health and safety requirements (Code s.17(2)).

The three-step Meiorin test (British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3) applies to bona fide occupational requirements (BFORs): an employer must establish that a standard is: (1) adopted for a purpose rationally connected to the performance of the job; (2) adopted in an honest and good faith belief that it was necessary for that purpose; and (3) reasonably necessary to accomplish that purpose — meaning that it is impossible to accommodate individual employees without undue hardship.

Direct Access Model — HRTO Procedure

Since January 1, 2008, Ontario operates a "direct access" model under which applicants file applications directly with the Human Rights Tribunal of Ontario (HRTO) without having to go through the Ontario Human Rights Commission (OHRC). The OHRC retains its public interest functions — conducting inquiries, issuing policy statements, and intervening in proceedings — but no longer acts as a gatekeeper for individual complaints.

HRTO applications are made using prescribed forms available on the HRTO website. Applications must be filed within one year of the alleged discrimination or harassment (Code s.34). The HRTO may extend the time limit if it is in the public interest to do so (s.34(2)). Late applications require the HRTO to consider: the length of the delay, the reason for the delay, whether the respondent has been prejudiced by the delay, and the merits of the claim.

After an application is filed, the HRTO process typically includes:

• Mediation: The HRTO offers mediation as a voluntary dispute resolution option at various stages. Many Code applications are resolved through mediation without proceeding to a hearing.
• Preliminary hearing: The HRTO may hold a written preliminary hearing to address threshold questions — is the application timely? Does the application set out a plausible basis for a Code violation?
• Summary hearing: If the application discloses no reasonable prospect of success, the HRTO may dismiss it without a full hearing under Code s.45.3 (screening process).
• Hearing: Full oral hearing on the merits. The applicant bears the initial burden of establishing a prima facie case of discrimination. The burden then shifts to the respondent to provide a non-discriminatory explanation.

Interim Relief

The HRTO has jurisdiction to make interim orders under Code s.45.9 where it is just and appropriate to do so having regard to: the nature of the application, the urgency of the situation, the nature of the relief sought, and any other factors. The test for interim relief under the Code incorporates the three-part RJR-MacDonald framework: a serious question to be tried, irreparable harm, and balance of convenience. Reinstatement, interim accommodations, and interim stays of eviction have all been ordered as interim relief in appropriate circumstances.

Remedies — HRTO Orders

The HRTO has broad remedial jurisdiction under Code s.45.2. Available remedies include:

• Compensation for injury to dignity, feelings, and self-respect (general damages): The most common remedy in HRTO proceedings. General damages awards have historically ranged from a few thousand dollars to $50,000+, with exceptional cases exceeding this range. In AISH v Hogan 2010 HRTO 1559, general damages of $35,000 were awarded for racial discrimination. Awards for sexual harassment and sexual solicitation tend to be higher.
• Compensation for monetary loss: Lost wages, benefits, housing costs, medical expenses, and other quantifiable losses caused by the discrimination. No cap.
• Reinstatement: Return to employment or housing, or provision of services that were withheld.
• Public interest remedies: Orders requiring the respondent to implement anti-discrimination policies, provide training, post notices, or take other systemic corrective measures. These remedies address the broader impact of discriminatory practices beyond the individual applicant.
• Non-monetary orders: Including apologies (rare), and orders to cease the discriminatory conduct.

The HRTO does not award costs to a successful applicant as a matter of course — unlike civil litigation. However, the HRTO may award costs (Code s.45.5) where a party has engaged in conduct that unduly prolonged the proceedings. Orders for costs against respondents are uncommon and against applicants extremely rare.

Intersection with Civil Litigation

Ontario's Human Rights Code allows applicants to seek remedies at the HRTO or to file a civil action in the Superior Court of Justice claiming damages under the Code. An applicant who files an HRTO application may not also pursue concurrent civil proceedings for the same underlying facts — the applicant must choose one forum (Code s.46.1). An applicant who commences a civil action may request that the court apply the Code; the court has full remedial jurisdiction including monetary damages for Code violations.

Civil actions for human rights violations (particularly in employment contexts) may also include claims for constructive dismissal, wrongful dismissal, and damages for mental distress under Honda Canada Inc v Keays 2008 SCC 39 where the dismissal was accompanied by bad faith conduct.

Judicial Review of HRTO Decisions

HRTO decisions are subject to judicial review in the Divisional Court of Ontario under the Judicial Review Procedure Act RSO 1990 c J.1. Post-Vavilov, the standard of review for HRTO decisions on questions of fact and mixed fact/law is reasonableness. Questions of procedural fairness are reviewed for correctness. Constitutional questions (including Charter arguments) are reviewed on correctness. The Divisional Court will not substitute its own view of the merits for the HRTO's assessment of a credibility-based factual determination.