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Human Rights Law (Ontario) Law
(30 September 2009)

Chapter 8 - Private Applications

  1. Overview
    (a) General
    (b) Pleadings
  2. Commencing Applications
    (a) Tribunal Publications
    (b) Joinder of Applications
    (c) Application Processing
    (d) 'Regular' Private Applications
    (e) Proxy Private Applications
    (f) Limitation Period
    (g) Completeness of Applications
  3. Responses
    (a) Overview
    (b) Timelines
    (c) Completeness of Responses
    (d) Processing of Response
    (e) Where Related Court Proceedings, Settlement or Prior Code Complaint
    . Overview
    . Related Court Proceedings
    . Settlements
    . Prior Code Complaint
  4. Replies
    (a) Overview
    (b) Applicant Request for Deferral at Time of Filing Application
    (c) General Request for Deferral
    (d) Recommencement of Deferred Application
  5. Deferred Applications
  6. Withdrawal of an Application

------------------------------

1. Overview

(a) General

Section 34 applications are the primary 'workhorse' procedures of the new OHRC system, and may be initiated "if a person believes that any of his or her rights under Part I have been infringed" [Code s.34(1)]. Readers involved with or intererested in s.35 applications, which are initiated and carried forward by the Human Rights Commission, should refer to Ch.9: "Commission Applications".

There are two possible forms of s.34 private applications: regular and proxy. 'Regular' are just what they sound like, made directly by applicants or their legal representatives on their behalf. 'Proxy' applications, discussed below (and in Ch.10: "Parties") are used when the rights-claimant ('principal') consents to another person or organization making the application on their behalf (eg. a union, a public interest group). Again, both types of applications are discussed in this chapter.

As is noted in Ch.7: "The Tribunal and its Powers", procedures for processing and hearing applications are largely at the discretion of the Tribunal [Code s.40, below], and the Tribunal has taken up this authority enthusiastically with the issuance of a wide range of 'Rules', 'Policies', 'Practice Directions', 'Guides' and more that are all essential reference for the Code-litigant (and which are all integrated or referenced in this Isthatlegal.ca Legal Guide).

Anyone familiar with the abominable inefficiency of the Ontario Human Rights regime over the past 25 years would be right to be cynical over this broad delegation of authority to an administrative level (even to the quasi-judicial administrative level of the Tribunal):
s.40
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
(b) Pleadings

"Pleadings" is a term that lawyers use to describe the primary documents that define what a legal proceeding is about. For s.34 private Code applications these documents are: the Application, Responses, and Replies, all of which are considered in the balance of this chapter below.

The importance of the 'completeness' of pleadings to their surviving the Tribunal's preliminary 'vetting' procedures is discussed in s.2(g) [re Applications] and s.3(c) [re Responses].

Additionally though, care in the preparation of pleadings is essential for the reason that the failure of a party to plead facts or issues they intend to advance or rely on at hearing gives the Tribunal discretionary authority to refuse to allow evidence or submissions on those facts and issues [Rule 5.7]. That said, Rule 5.7 removes that discretion (and thus requires that the 'late' fact or issues be allowed in) where the allowing of the unpleaded evidence or argument to be advanced (normally with a corresponding amendment to the pleadings) can be done with "no substantial prejudice and no undue delay to the proceedings". Typically there will be no prejudice where the other parties are not taken by surprise by the newly-advanced facts or issues, or where any surprise can be ameliorated by an adjournment.

As per Rule 1.7(c), he Tribunal may allow any pleading to be amended on the motion of the party filing it (see motions Ch.11). Typically administrative tribunals will allow pleadings to be amended, but will grant an adjournment (if requested) from other parties to allow them time to prepare for the new facts and issues, and may punish a late amendment by a cost award against the moving party (note that the Tribunal has yet to adopt any costs jurisdiction).


2. Commencing Applications

(a) Tribunal Publications

The Tribunal has issued a Guide for Applicants, which I link here for reference:

Applicant's Guide

The Tribunal has also issued an Interpretation Bulletion on the issue of naming parties, and I link it here for reference:

Information Bulletin: Naming Respondents

(b) Joinder of Applications

The distinction between regular and proxy applications is mentioned in s.1 "Overview" (above) and they are explored further below. Here however I discuss the situation where two or more people wish to merge their cases into one application, or where the Tribunal wishes to split such joined applications.

While two or more persons may combine in one regular application (called "joinder", there is apparently no similar provision for applicants joining proxy applications - except of course where the Tribunal is so inclined on their own or on a party's motion [see Ch.11, "Motions"; Rule 1.7(d)]. That said, the Tribunal also has authority to order joined applications to proceed separately [Code s.34(4); Rules 1.7(e)].

Normally applications should only be joined if they shared significant common factual and legal elements.

(c) Application Processing

Where an application is 'accepted for processing' [see (g): "Completeness of Applications", below] the Tribunal will send it to the respondents named in the application, and to any trade union, occupational or professional organization identified in the Application, at the addresses provided. Where such person or organization cannot be contacted at that address, the application "will not be dealt with" respecting them and the Tribunal will so advise the applicant [Rule 6.6].

The application form calls for a list of witnesses to be provided to the Tribunal (see Ch.14: "Service" and Ch.15: "Evidence"). Note however than, at the application stage, these witness lists and any related witness information will not be sent to other respondents [Rule 6.7].

(d) 'Regular' Private Applications

The form used for regular s.34 applications is [Code s.34(3); Rules 6.1]:

Form 1: Application

(e) Proxy Private Applications

The form used for proxy s.34(5) applications is [Code s.34(9), Rules 6.1]:

Form 4: Application on Behalf of Another Person

Such an application must be accompanied by the signed, written consent of the principal on whose behalf the application is filed [Code s.34(5,7), Rule 6.8]. The consent is attached to Form 4.

The proxy is thereafter entitled to participate in the proceedings [Code s.34(6)], subject to the principal's entitlement to withdraw the application [Code s.34(10)].

(f) Limitation Period

The limitation period for commencing a s.34 application (regular or proxy) is "one year after the incident to which the applications relates", or if there was a series of incidents ("continuing infringement"), within one year after the last incident in the series" [Code s.34(1,8,9)].

This limitation period may be extended "if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay" [Code s.34(2,8,9)]. In such a case the applicant should apply in the regular manner but also provide evidence and make representations on the reasons for the lateness.
Note that while the Tribunal may on motion "lengthen or shorten any time limit in these Rules" [Rule 1.7(a)], the above one year limitation period is a Code-mandated limit, and thus it is not subject to extension under the Rules as such. It can only be varied by the Tribunal under the Code criteria just noted.
Where an application is initially sent back for 'incompleteness' [see (g) "Completeness of Application", below], which is later remedied (within 20 days), it will be treated as though it was properly filed on the original 'attempt' date [Rule 6.5].

(g) Completeness of Applications

As is noted in s.1 "Overview", the historical practice of the HR Commission has been to use any available excuse to kill off applications en masse in a manner that would do Kafka proud. A primary area in which this tactic has been exercised can generally be referred to as 'summary dismissal', and it is the subject of its own chapter, Ch.12: "Summary Proceedings".

Applications "must provide the information requested in every section of the Application form and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant's rights under the Code" [Rule 6.2]

Rules 6.1 and 6.2 specifically mention that forms "must be complete". While this seems like an obvious and even trite requirement, past Commission practices used technical flaws (including minor, non-material incompleteness) of applications as part of their draconian 'gate-keeping' techniques for years (see Ch.1: "Overview").

Just to make sure you get the point about 'completeness', the Rules further sets out the consequences of non-compliance:
Rule 6.4
Upon receiving an Application, the Tribunal will determine whether it complies sufficiently with these Rules to allow it to be processed. An Application filed under Rule 6.1 that is not sufficiently complete:

a) may be sent back to the Applicant with an explanation as to how the Application is incomplete, and

b) may be re-submitted not later than (twenty) 20 days after the date that the Application was sent back.
'Re-submission' should be viewed as a simple re-submission, and not as requiring a motion to amend and a subsequent Tribunal order as is discussed in s.1(b) above. If an application is then determined to be satisfactory, it will be treated as though it was filed at the original 'attempt' date [Rule 6.5].

Given past OHRC history and these several 'completeness' requirements, care should be taken to ensure that all requested information is provided in the required forms. As well, failure to correct incompleteness - or even corrective action extending beyond the required '20 days' - runs the risk of full refusal:
Rule 5.3
The Tribunal may decide not to deal with an Application that is not filed in compliance with these Rules.

3. Responses

(a) Overview

Procedural requirements for Responses (to either regular or proxy applications) are quite similar to those for Applications (discussed in s.2 above).

The form used is linked here [Rule 8.1]:

Form 2: Response

The Tribunal has issued a Guide for Respondents, linked here for reference:

Respondent's Guide

(b) Timelines

Responses ('complete' Responses, that is) are required to be filed within 35 days after the application "was sent" (this should be read as the mailing date, not the date it was received) [Rule 8.1].

(c) Completeness of Responses

'Responses' "must provide the information requested in each section of the Form 2", and must "respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies" [Rule 8.2].

Note however the exceptions to 'completeness' discussed in (e) "Where Related Court Proceedings, Settlement or Prior Code Complaint", below.

As with Applications the consequences of non-completeness are that the Response [Rule 8.3]:
  • may be sent back to the Respondent with an explanation of how the
    Response is incomplete; and

  • may be re-submitted no later than (twenty) 20 days after the
    Response was sent back.
'Re-submission' should be viewed as a simple re-submission, and not as requiring a motion to amend and a subsequent Tribunal order as is discussed in s.1(b) above. If a response is then determined to be satisfactory, it will be treated as though it was filed at the original 'attempt' date [Rule 8.5].

(d) Processing of Response

Completed (ie. those which the Tribunal deems to be complete) Responses will be sent by the Tribunal to (at the addresses provided) [Rule 8.4]:
  • the Applicant;

  • any trade union, occupational or professional association
    identified in the Application; and,

  • any other Respondent or affected person identified in the
    Response, at the addresses identified.
The Response form calls for a list of witnesses to be provided to the Tribunal (see Ch.14: "Service" and Ch.15: "Evidence"). Note however than, at the application stage, these witness lists and any related witness information will not be sent to other participants [Rule 8.6].

(e) Where Related Court Proceedings, Settlement or Prior Code Complaint

. Overview

Where a respondent alleges that the matter is or has been subject of court proceedings, a legal settlement, or a prior Code complaint (under the prior OHRC regime) then they may not be required to file a complete Response.

. Related Court Proceedings

If the issue has been the subject of "a civil court proceeding requesting a remedy based on the alleged human rights infringement" (either present or resolved), then there is no right to make an application based on the same alleged infringement [Code s.34(11,12)]. This policy, embodied in law, is an aspect of the common law principle of "res judicata" ('already decided') and a common sense focus on judicial efficiency.

Applicants wishing to dispute the application of this rule to their situation, where related court proceedings have been commenced, should nonetheless file a copy of the court Statement of Claim with the s.34 application [Rule 6.3].

A Respondent alleging this 'defence' need not fully "respond to the allegations in the Application" as is discussed in s.3(c) above, but should attach to the Response the appropriate "statement of claim or court decision" [Rule 8.2] (it is logical that the balance of the Response form be completed fully, but that other defence issues may be left off). Note that the Tribunal may still order the respondent to file a complete Response if they deem it fit.

. Settlements

Where a responent alleges that the matter has been resolved by way of "full and final signed release" (ie. a settlement) between the parties, similar rules apply. Note that a settlement does not need to have occured while court or other legal proceedings are afoot, but can be entered into prior to them.

A Respondent alleging this 'defence' need not fully "respond to the allegations in the Application", but should attach to the Response the appropriate release [Rule 8.2] (it is logical that the balance of the Response form be completed fully, but that other defence issues may be left off). Note that the Tribunal may still order the respondent to file a complete Response if they deem it fit.

Readers involved in settlement situations should also review the 'Settlement' provisions discussed in Ch.12, s.2: "Summary Proceedings: 'Res Judicatas'-Type Summary Dismissal or Deferral".

. Prior Code 'Complaint'

Where a respondent alleges that the issue grounding an application is or has been the subject of a past (or continuing) OHRC 'complaint' ('complaints' means initiated under the old Code regime), similar rules apply. A Respondent alleging this 'defence' need not fully "respond to the allegations in the Application" as is discussed in s.3 (below), but should attach to the Response the appropriate OHRC complaint or decision [Rule 8.2] (it is logical that the balance of the Response form be completed fully, but that other defence issues may be left off). Note that the Tribunal may still order the respondent to file a complete Response if they deem it fit.

To be clear: this aspect of Rule 8.2 appears to apply only with respect to OHRC 'complaints' as were made under the prior (old) OHRC regime (see Ch.1: "Overview" and Ch.21: "Transition"). The situation of competing 'new' code applications is addressed immediately below.

. Prior or Collateral Code 'Application'

For related collateral 'applications' under the new Code regime the Code also provides for summary dismissal:
Code s.45.1
The Tribunal may dismiss an application, in whole or in part, in
accordance with its rules if the Tribunal is of the opinion that
another proceeding has appropriately dealt with the substance of
the application.
"Proceedings", as the term is used here in s.45.1, necessarily means the new Code application proceedings [Rule 1.4]:
"proceedings" before the Tribunal include all processes of the
Tribunal at any time following the filing of an Application until
the Application is finally determined;
The essence of Code s.45.1 is repeated in the Rules, with the addition of a right to make submissions on the issue [Rules 22]:
Rule 22.1
The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

Rule 22.2
The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

4. Replies

A 'reply', traditionally, is the applicant's oppourtunity to respond to NEW issues raised in the Response/s, particularly defences. This limitation applies to Code proceedings as well [Rule 9.2], and applicants should not serve and file a Reply unless it is necessary to do so for this purpose. Replies that repeat allegations made in the Application or those that try to present evidence or argument will be considered unnecessary.

The form for a Reply is [Rule 9.1]:

Form 3: Reply

Replies must be served on "the other parties and any trade union or occupational or professional organization and other person or organization identified as an affected person in the Application or Response" and then filed with the Tribunal within 14 days after the Response "was sent" (this should be read as the mailing date, not the receiving date) [Rule 9.3].


5. Deferred Applications

(a) Overview

Consideration of applications may be deferred by the Tribunal under two sets of circumstances (which in fact overlap) [Code s.45]. The first is at the request of the applicant, filed with the application, where there are parallel court proceedings afoot. The second is a broad general power of deferral at any time on either the Tribunal's own motion or the motion of a party.

(b) Applicant Requests for Deferral at Time of Filing Application

This can be complicated, please bear with me.

An applicant may, simultaneously with the filing of the application, request that consideration of the application be deferred where there is another legal proceeding afoot "that does NOT fall within s.34(11) of the Code" [Rules 7.1, 7.2]. Section 34(11) proceedings are court proceedings where:
  • a civil proceeding has been commenced in a court in which the
    person is seeking an order under Code section 46.1 (collateral
    orders for damages and/or restitution) with respect to the
    alleged infringement and the proceeding has not been finally
    determined or withdrawn [see Ch.17,s.6: "Remedies and Offences:
    The Civil Courts and the Code"]; or

  • a court has finally determined the issue of whether the right has
    been infringed or the matter has been settled.
Because the Code does not tolerate civil court claims based solely on Code grounds [Code s.46.1(2)], and since s.34(11) court applications are necessarily ones where Code remedies are sought collaterally within civil court proceedings that are otherwise based, these s.34(11) civil court cases are likely the only ones where the Code can be advanced in a civil proceeding (other than in judicial review).

Therefore, it seems possible to interpret this 'deferral at time of filing' provision as being available where parallel NON-court legal proceedings are afoot, namely related administrative matters such as those before the Social Benefits Tribunal, the Ontario Labour Relations Board (OLRB), any of the numerous WSIB tribunals, and such like - and including other Code proceedings, such as a s.35 Commission Application [see Ch.9].

To summarize, these applicant requests for deferral, made at the time of filing an application, seem to be available only where either related judicial review or administrative legal proceedings are afoot.

The function of a request for deferral in such circumstances appears to be grounded in the concepts of "res judicata" and judicial efficiency, the goal being to allow those proceedings to be finalized before the s.34 proceeding continues, potentially resolving the issues before the Tribunal. If, in such a situation, the would-be-applicant delays until the related proceeding is concluded then they risk running out the limitation period [see s.2(f), above]. Thus making the application, along with the request to defer, makes sense in order to 'preserve one's rights' by satisfying the limitation period.

When making their s.34 application (which can be either a private or a proxy application), an applicant wishing such deferral, should add to their application form the following [Rules 7.3]:
  • identifying information about the other legal proceeding dealing
    with the subject matter of the Application; and

  • a copy of the document that commenced the other legal proceeding.
The granting of such deferral application is still at the discretion of the Tribunal, and it will not be granted "without first giving all the parties, and any affected persons or organizations identified in the Application or Response, an opportunity to make submissions on the request for deferral" [Code 7.4].

(c) General Request for Deferral

In addition to the above (very specific) circumstances in which an applicant can request that consideration of an application be deferred, any party (including an applicant) may request - and the Tribunal itself on its own motion may order - that consideration of an application be deferred [Rule 14.1].

The granting of a deferral (initiated either by a party request, or by the Tribunal itself), is still at the discretion of the Tribunal, and it will not be granted without first giving "the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral of the Application and an opportunity to make submissions" [Rule 14.2].

Circumstances that might call for such a 'general' deferral request can include those where res judicata concerns arise [such as a court proceeding as mentioned in the s.34(11) analysis above], but can also involve situations where all parties are awaiting the outcome of external events or third party actions to fully mature their fact situations.

(d) Recommencement of Deferred Application

Regardless of the procedure used to obtain a deferral of consideration of an application, recommencement at the request of a party is done by way of motion under Rule 19 [Rules 7.5 and 14.3] (see Ch.11: "Motions").

Where the original deferral was deferred pending the outcome of another legal proceeding, such a motion must be made within 60 days after completion of the other proceeding [Rules 7.5] and must "set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any" [Rules 14.4].

Of course, the Tribunal may require a deferred application to recommence at any time, on its own motion [Rule 14.5].


6. Withdrawal of an Application

Except in the case of a settlement [Rule 10.1] or where no Response to the Application has yet been filed [Rule 10.5], there is no unilateral right to withdraw an application once it is filed, and the applicant must make a formal request for permission to withdraw. Such permission may be granted "upon such terms as the Tribunal may determine".

The form used is:

Form 9: Request to Withdraw

A completed Form 9 must be served on all parties, affected persons and any others named in the initial application, and then filed with the Tribunal. If it was a proxy application, the written consent to withdraw of the principal is also required [Rules 10.2].

If the person or organization receiving the Request to Withdraw desires to file a "Response to Request to Withdraw", they must first serve it on the same persons and organizations served with the Request to Withdraw - and then file it with the Tribunal - all within 14 days after delivery of the Request to Withdraw [Rules 10.3-10.4]:

Form 11: Response to Request to Withdraw
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