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Administrative - Rules. Royal LePage RCR Realty Brokerage v. Human Rights Tribunal of Ontario [deemed by Rule]
In Royal LePage RCR Realty Brokerage v. Human Rights Tribunal of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court granted an application to 'quash' "a decision of the Human Rights Tribunal which dismissed a request for reconsideration of the decision of the Human Rights Tribunal" - here where the impugned decision was due to the "failure of the lawyer of record to respond to the correspondence from the Tribunal":[16] On November 7, 2024, Royal LePage filed a request for reconsideration of the Default Decision on the basis that it had no knowledge of its lawyers’ conduct that led to them losing their rights to receive notice of or participate in a hearing of the matter.
[17] On February 4, 2025, the Tribunal issued a decision refusing Royal LePage’s request for reconsideration. The Tribunal made reference to Rule 1.22(d) of the Tribunal’s Rules which provide that a respondent’s counsel is deemed to have received the Tribunal’s communications. The Tribunal stated that because Rule 1.22(d) is a deeming provision, it creates a legal fiction by declaring something to have happened regardless of the truth of the matter. It notes that “when “deems” is used to create a legal fiction, the fiction cannot be contradicted.” In their decision the Tribunal stated,Since Rule 1.22(d) is a deeming rule, the respondent cannot contradict that their authorized legal counsel received the Tribunal’s correspondence. As a result of this deemed result, the respondent does not meet the criteria in Rule 26.5(b) of the Tribunal’s Rules.
I understand that the respondent may take the position that they, the respondent themselves, did not receive the Tribunal’s notices of correspondence and, for that reason, the Tribunal should grant their request.
However, this argument fails. Rule 1.21.1 of the Tribunal’s Rules provides that when a party has a representative, documents must be delivered to the representative.
On August 17, 2018, the respondent’s counsel submitted a letter to the Tribunal confirming that they act for the respondent with respect to this matter. Also, they completed the section of the response (Form 2) for indicating the respondent’s counsel’s contact information. [18] The Tribunal held that the Respondent did not meet the high threshold of a “no fault of their own” qualifier which was necessary for the reconsideration because the Respondent checked the box in the application asking the Tribunal to send communications to their counsel. In its reconsideration decision the Tribunal stated,In the Tribunal’s view, the respondent bears some responsibility for the instruction to communicate with their counsel. The respondent should have carefully reviewed the Application and the Respondent’s Guide and been aware that communications would be sent to their counsel.
If the counsel changed, which was not claimed, the respondent would have been responsible for providing the Tribunal with updated contact information. For these reasons, it cannot be said that the respondent has no fault or no responsibility. [19] As a result of the failure of the lawyer of record to respond to the correspondence from the Tribunal, the request for reconsideration was refused on February 4, 2025 (“Reconsideration Decision”). Royal LePage seeks to judicially review the Reconsideration Decision and to set aside the Default Decision. For the following reasons I have concluded that the application should be granted.
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[21] In the Divisional Court decision of Ramirez v. Rockwell Automation Canada Ltd., 2025 ONSC 1408 (CanLII), the Court considered a decision of the Human Rights Tribunal where an applicant’s claim was dismissed after the applicant did not respond to an inquiry from the Tribunal about the status of certain WSIB proceedings. The applicant sought reconsideration of the dismissal order, claiming that he had not received the Tribunal’s email of inquiry. The Tribunal was satisfied that the email of inquiry was sent to and delivered to the applicant’s email address and therefore refused to set aside the dismissal order by decision dated April 15, 2024.
[22] On review, Justice Corbett of Divisional Court explained that the question for the Tribunal was not whether the email of inquiry was delivered to the applicant’s address. That point was but one fact going to the question of whether the applicant had abandoned the proceeding. That fact had to be placed within the context of other pertinent facts which included:1. The Applicant had not failed to meet his obligations as a party before the Tribunal previously. There was no history of delay or non-responsiveness by any party and holding the proceeding in abeyance had been approved by the Tribunal.
2. The Applicant had a record of diligent response to Tribunal communications in respect to another proceeding before the Tribunal.
3. The Tribunal had no information as to whether or when the WSIB proceedings had been resolved. Both parties agree that those WSIB proceedings are still ongoing as of today.
4. The reconsideration decision did not encompass a contextual analysis of whether the Applicant had abandoned the proceeding but rather focused on whether the Applicant had “received” the e-mail. [23] The Divisional Court concluded that failing to respond to one email, in all of the circumstances, could not justify an inference that the applicant had abandoned the proceeding. The inference that he had done so was unreasonable and was not allowed to stand.
[24] Similarly in this case the Human Rights Tribunal did not take a contextual approach in its reconsideration of its initial decision. It relied solely on the Rules with respect to a deeming provision and the failure of Royal LePage’s counsel of record to respond to two emails.
[25] In my view, the Tribunal in the Reconsideration Decision should have considered the contextual factors which included the following:1. Royal LePage had delivered a response to Ms. Barry-Sproule’s application and a reply to that response had been given by Ms. Barry-Sproule;
2. Royal LePage had participated previously in a mediation on the file;
3. There was a significant delay between the time of the mediation and the status request sent by the Tribunal. This raised at least the possibility of a change of counsel; and
4. There was no evidence before them that Royal LePage had any knowledge of its lawyers’ failures to respond. [26] In Graham v. Vandersloot, 2012 ONCA 60 (CanLII), the Court of Appeal dealt with the decision by a motion judge to deny an adjournment of trial in a personal injury action because she did not have up-to-date medical reports.
[27] In its decision, Justice Blair of the Court of Appeal, made reference to the principle that “the sins of the lawyer should not be visited upon the client”, which he found applicable. He noted that the principle was initiated by the Court of Appeal in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd., [1985] O.J. No. 101, where the Court had stated,Undoubtedly counsel is the agent of the client for many purposes . . . but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible. [28] In the Ramirez decision, Justice Corbett found that it was clear the Tribunal had inferred abandonment of the claim from the failure to respond to one email. Justice Corbett concluded that the failure to respond to one email, in all of the circumstances of the case, could not possibly justify an inference that the applicant had abandoned the proceeding. That inference was unreasonable and was not allowed to stand. Justice Corbett found no reason to remit the reconsideration of the dismissal decision or the dismissal decision itself to the Tribunal. The dismissal was obviously unfair in all the circumstances. The application was therefore granted. Similarly in this case, I have concluded that the Reconsideration Decision cannot be allowed to stand. The failure of Royal LePage to respond to two emails could not, contextually, support a conclusion that Royal LePage had abandoned its intention to respond to the complaint. In this case, given that Royal LePage had given a clear intention to defend the case, and that the sole responsibility for the error which occurred lay with its counsel, the Reconsideration Decision was unreasonable and cannot be allowed to stand.
[29] In the Reconsideration Decision the Tribunal found that Royal LePage was “at fault” because of a rule that deems that clients who have a lawyer and direct that correspondence be sent to their lawyer are “deemed” to have notice of that correspondence. While the Tribunal is owed considerable deference when it comes to controlling its own process, to rely on this deeming rule to preclude a party from having any rights to participate if their lawyers are negligent, is unreasonable, in the absence of demonstrated non-compensable prejudice to the innocent party.
[30] Ms. Barry-Sproule argues that she has been subjected to further delay and has been prejudiced by the fact that she has exposed her trial strategy in the ex parte tribunal hearing which was held to determine her right to claim damages against Royal LePage. Parties are entitled to full disclosure of the other side’s case. The fact that Royal LePage now has the particulars of Ms. Barry-Sproule’s case is not the kind of prejudice that would prevent Royal LePage from having the right to have a hearing. There were serious consequences to Royal LePage. These consequences go beyond the damage award which was issued and reflect negatively on the reputation of Royal LePage. The level of prejudice suffered by Royal LePage rises to a level where it should take precedence over the right of Ms. Barry-Sproule to rely on the Default Decision. The order of the Tribunal is clearly unfair in all the circumstances. I therefore grant the application. The Tribunal’s Default Decision and Reconsideration Decision are quashed and arrangements should be made for a new hearing to be scheduled before the Tribunal on Ms. Barry-Sproule’s application for relief under the Human Rights Code. . Swerdfiger v. Director of the Ontario Disability Support Program [challenge to tribunal Rules on appeal]
In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".
Here the court denies the appellant's effort to challenge SBT Rules as having "failed to keep up with the Tribunal's power to review Code violations":Are the Tribunal's rules procedurally unfair?
[19] The appellant submits that the rules of the Tribunal have failed to keep up with the Tribunal's power to review Code violations, a power that was made clear in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, because the rules themselves fail to accommodate individuals with disabilities.
[20] The appellant refers to four rules in the Tribunal's rules of procedure: Ontario Social Benefits Tribunal, Rules of Procedure for Appeals to the Social Benefits Tribunal. She contends that, while rules 4.3 and 4.4 allow a respondent to change positions and to rely on additional facts up to 30 days before the hearing of an appeal, r. 5.11 precludes an appellant from filing new medical information later than 30 days before the hearing of an appeal. She submits that this guarantees that appellants have no opportunity to provide medical evidence concerning new arguments or positions where a respondent changes positions at the last possible opportunity.
[21] As alluded to earlier, a stand-alone challenge to the Tribunal's rules is beyond the scope of this court's jurisdiction to consider under s. 31(1) of the ODSPA. Our jurisdiction is limited to questions of law. While a denial of procedural fairness is an issue of law, it must be shown that the rules resulted in the actual denial of procedural fairness, and not just that they might have done so: Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022), at para. 6.05.
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