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Human Rights (Ontario) Law
(30 September 2009)

Chapter 12 - Summary and Related Procedures

  1. Overview
  2. 'Res Judicata'-Type Summary Dismissal or Deferral
    (a) Dismissal Jurisdiction
    (b) Where Related Proceedings or Settlement
  3. Summary Proceedings Where Party Non-Compliance or Non-Participation ('Default Proceedings')
    (a) Overview
    (b) Non-Compliance with Application Rules
    (c) Failure of Respondent to file Response
    (d) Summary Dismissal Where Non-Contact
    (e) Non-Attendence at Scheduled Hearing
  4. Dismissal for Lack of Tribunal Jurisdiction
    (a) The Sad History
    (b) Post-Tranchemontagne
    (c) Tranchemontagne-Related Code Amendments
    (d) Procedures Regarding Dismissal for Lack of Jurisdiction
  5. Expedited Proceedings
    (a) Overview
    (b) Procedures
    (c) Grounds
  6. Interim Remedies
    (a) Overview
    (b) Procedures
    . Overview
    . Request for Interim Remedies
    . Response to Request for Interim Remedies
    (c) Criteria
  7. General Interlocutory Orders Having Summary Effect
    (a) Overview
    (b) Orders Narrowing Issues
    (c) Orders Limiting Evidence or Submissions
    (d) Orders Barring Evidence or Pleadings Where Delivery Breach
    (e) Orders Barring Issues Where Not Pleaded
  8. Where an Order Finally Disposes of an Application

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

1. Overview

Once again in the area of summary procedures, administrative procedures borrow from conventional civil court procedures for the 'resolution' (invariably dismissal) of applications.

As is discussed in Ch.1: "Overview", past OHRC practice - almost since the inception of the Human Rights systems in Ontario - has been to engage in draconian 'gate-keeping' to the point of rendering the legislative regime essentially largely ineffectual. One of the key techniques used to achieve this nefarious end were the 'summary judgment'-type equivalents that existed under the old Code, primarily:
s.34 (1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the Commission may, in its discretion, decide to not deal with the complaint.
While now repealed in this form, harsh and often implausible use of this provision became a mainstay of the various 'case reduction' initiatives that characterized the old Commission system.

The past history of OHRC administration has given ample cause for cynicism, and in my view there is nothing in particular in the new system that guarantees any fundamental change. As a consequence, I think all applicants should anticipate strict use of these procedures against them.

That said, the forms which summary judgment can take are several, and require extensive elaboration, which I attempt in this chapter.


2. 'Res Judicata'-Type Summary Dismissal or Deferral

(a) Dismissal Jurisdiction

The new Code embodies a specific dismissal authority similar to what lawyers call "res judicata" (already decided):
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.

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 normal "res judicata" principle, widely recognized in law, is that where a cause of action or issue between parties has been previously resolved by a tribunal (or court), that it may not be re-litigated there or elsewhere between any of the same parties. The above Code provision is in fact wider that this traditional range, allowing the Tribunal to dismiss if "of the opinion that another proceeding has appropriately dealt with the substance of the application".

This vaguer language could easily be relied upon by the Tribunal to dismiss a case on grounds other than conventional 'res judicata' principles. For instance, imagine two similar fact cases both seeking to have a particular type of behaviour established as discriminatory, with one being decided (successfully or unsuccessfully) before the other. The above s.45.1 authority could be relied on to dismiss the second application on the grounds that "the substance of the application had been dealt with", on the ba sis that the legal issue has been decided and that individual party rights are secondary. While such a result would be shocking in terms of conventional legal expectations, it would not be the least bit surprising given the past OHRC system's profound disregard for individual rights in favour of pursuing policy-level approaches against systemic discrimination (which they have not been particularly good at either).

(b) Where Related Proceedings or Settlement

Readers on this topic should also be aware of provisions barring applications or deferring their consideration where there are or have been related court or other administrative proceedings (other than new Code proceedings) afoot.

These provisions again relate to the concept of 'res judicata' in that they address situations where the issues at stake in an application have already been resolved by prior legal proceedings, or may resolved in separate legal proceedings (ie. court, non-Code tribunals, or prior Code proceedings).

These provisions are discussed in Ch.8, s.3(e):"Private Applications: Where Related Court Proceedings, Settlement or Prior Code Complaint".


3. Summary Proceedings Where Party Non-Compliance or Non-Participation ('Default Proceedings')

(a) Overview

Once again borrowing from civil litigation procedure, the Code has provisions addressing the situation when a party does not comply with important procedural rules or fails to attend at a scheduled hearing. In law these are generally called "default proceedings".

In civil litigation the normal rule in the face of non-compliance is that a defaulting defendant (equivalent to a Code respondent) is not entitled to any further notices regarding the proceeding. From that point the plaintiff (equivalent to a Code-applicant) need only prove liability, after which 'special damages' (those easily and precisely calculated, such as exact disbursements or losses) are almost automatically awarded. 'General damages', requiring a more wholistic damage quantification for such things as pain and suffering are then subject of a 'damages assessment' hearing where the court has to hear more evidence on the harm caused and assign a dollar value to them.

Similar court default proceedings operate in the situation where a defendant does not file a defence (equivalent to not filing a Code Response).

Of course, where a plaintiff (equivalent to a Code applicant) fails to attend a scheduled hearing without good reason, the result is almost always a dismissal of the application. This is dictated by the fact that the applicant bears the burden of proof in proving their claim, as absent the applicant no evidence is offered to meet this burden.

(b) Non-Compliance with Application Rules

This is one of the least forgiving of the Code's summary proceedings and simply provides that [Code s.5.3]:
s.5.3
The Tribunal may decide not to deal with an Application that is not filed in compliance with these Rules.
How harshly this provision will be applied will be seen as the new Code regime develops a track record, but given past practice of the Commission we all have reasonable cause for concern.

A primary focus of 'non-compliance' in the new Code regime is "incompleteness". There are specific provisions [Rules 6.1, 8.1] where both Applications and Responses deemed to be 'incomplete' can be sent back to the applicant/respondent for amendment [Rules 6.4, 8.3], failing which the Tribunal can simply refuse to receive (ie. file) them. These provisions are discussed in more detail in Ch.8, "Private Applications", in s.2(g): "Commencing Applications: Completeness of Applications" and in s.3(c): "Responses : Completeness of Responses".

The potential for these non-compliance and incompleteness Rules to be applied as a form of 'back-door' summary dismissal against applicants, killing off cases in their infancy, is huge.

(c) Failure of Respondent to file Response

Again, consistent with civil litigation procedure, in the face of non-Response by a named respondent, several default consequences are invoked, and the Tribunal may [Rule 5.5]:
  • deem the Respondent to have accepted all of the allegations in the Application;

  • proceed to deal with the Application without further notice to
    the Respondent;

  • deem the Respondent to have waived all rights with respect to
    further notice or participation in the proceeding; or

  • decide the matter based only on the material before the Tribunal.
(d) Summary Dismissal Where Non-Contact

Where a participant cannot be "contacted by the Tribunal according to the contact information provided" the Tribunal may "finally determine an Application without further notice" to them [Rule 5.4].

As noted in (a) above, a standard normal consequence for default in legal proceedings is the loss of a participant's right to further notices in the proceeding, with summary dismissal against an applicant, and summary damage-determiantion proceedings for the balance of the case against a respondent. Rule 5.4 however triggers default on mere 'failure to respond' (even a single failure) to ANY communication - through whatever media, AND at any stage of the proceeding and extends such 'default' consequences' beyond those applied in the civil courts to allow an unspecified "determination" of the Application.

There are many reasons why a party does not respond to communications, including failure of delivery (in either direction), lack of legal sophistication, poor literacy - and often their view that the communication is insufficiently significant to merit a response.

The vagueness embodied in Rule 5.4, granting the Tribunal broad discretionary powers, is characteristic of the new Code and the Rules made under it, and once again is quite worrisome. I fully expect to see the new system respond to single instances of non-response by an applicant with summary dismissal (effectively an institutional 'shrug', followed by the comment that 'I guess they just aren't interested anymore'.

(e) Non-Attendence at Scheduled Hearing

"Where a party has been notified of a hearing and fails to attend, the Tribunal may" [Code s.3.13]:
  • proceed in the party's absence;

  • determine that the party is not entitled to further notice of the
    proceedings;

  • determine that the party is not entitled to present evidence or
    make submissions to the Tribunal;

  • decide the Application based solely on the materials before it;
    or

  • take any other action it considers appropriate.
These are close to conventional civil litigation rules for non-attendene at hearing and on their face are unobjectionable.


4. Dismissal for Lack of Tribunal Jurisdiction

(a) The Sad History

The issue of when a tribunal (any tribunal) or court has jurisdiction to hear a human rights-related issue has been a prolonged and vexed one in Canadian law. In my view it all stems from a quite unnecessary impulse amongst the entire legal establishment to segregate human rights issues from the 'regular' broad body of Ontario law and to try to locate it exclusively to the HRC tribunal systems. After all, if every citizen walking down the street is under a legal duty to abide by human rights law, is it unreasonable to expect our courts and tribunals to apply it in rulings on a day-to-day basis just like they do all our other laws?

The original case that initiated this unfortunate impulse was the 1981 Supreme Court of Canada (SCC) case of Bhadauria v Seneca College in which, after the Ontario Court of Appeal (Wilson J writing) had first allowed the advancement of a new tort of discrimination (enabling discrimination claims to be advanced in tort lawsuits in the civil courts), the SCC (Laskin J writing) reversed on that point. Since that time [until very recently with the 2006 Tranchemontagne v Director (ODSP) case (SCC)] the Bhadauria case spawned a pernicious body of case law that effectively barred the advancement of human rights law in both court and non-OHRC proceedings. This occured not only when the Code was advanced as a single cause of action as in Bhadauria, but collaterally as well - when the Code was offered in aid of interpreting other traditional causes of action (commonly in wrongful dismissal). This doctrine dictated an unnecessary and quite artificial bifurcation of proceedings whenever human rights law arose as a collateral issue in the context of other, conventional legal disputes.

In my own practice I advanced two cases of this nature [linked off my practice page], trying to argue the Code in aid of a wrongful dismissal lawsuit (termination alleged to be grounded in medical disability: Murray v Kubota Canada) and 'family status' discrimination in aid of interpreting the old "permanently unemployable" status (for social assistance benefits) under the now-repealed Family Benefits Act (Weiler v Ontario). Both case were unsuccessful in invoking human rights law, the courts in both instances avoiding making clear findings on the issue.

In the result, anyone fired for becoming sick, or otherwise suffering human rights violation in non-OHRC legal contexts faced the unenviable and quite unnecessary choice between sacrificing human rights law in a regular non-OHRC proceeding such as civil court or other administrative proceedings, or wholly locating their claim in the moribund OHRC system. Cases were both proceedings were advanced simultaneously (at heinous cost to the rights-claimants) were chronically met with motions for stay (suspension) on the grounds of abuse of process (essentially res judicata concerns as discussed above) - claims which the courts were quite amenable too.

This constructive denial of access to justice replicated itself in other contexts: before the Worker's Compensation Board (WCB, now WSIB), social assistance matters before the Social Benefits Tribunal, and on and on. The absurd situation where - on the same fact situation - the non-OHRC tribunal declined jurisdiction due to human rights involvement, and the Human Rights Commission declined jurisdiction due to the conventional law involvement - thus leaving the party completely without legal remedy - was not unknown. In short, Ontario's legal culture seemed hell-bent on barring the admission of human rights law from effective implementation in its day-to-day functioning.

(b) Post-Tranchemontagne

Then, in a blinding flash of common sense the Supreme Court of Canada in 2006 decided, in the case of Tranchemontagne v Director (ODSP) that the Ontario Social Benefits Tribunal (SBT), which hears appeals from social assistance eligibility issues, actually could hear and decide human rights issues placed before it.

In response, the SBT (no doubt fearful that the earth would open wide and swallow it whole) blunted the impact of this sensible and long-delayed ruling by requiring that special notice of 'human right issue' be served and filed whenever entry into this sacred ground was planned (essentially duplicating the "Notice of Constitutional Question") common in Charter cases before both the courts and adminstrative tribunals (including OHRC Tribunals). Coupled with this was a policy that all cases advancing human rights should first be considered exclusively on non-Code grounds, with the Code issues only being raised if the advancing party remained unsuccessful afterwards.

(c) Tranchemontagne-Related Code Amendments

Further, the new Code provisions - while still maintaining the narrow principle of Bhadauria (no civil tort of discrimination), have newly discovered (although they can't have been looking too hard), that human rights law is often useful in the interpretation and application of the remainder of Ontario's law, and passed the following law into force:
s.46.1(1)
If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

s.46.1(2)
Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
The remarkable result is that when Code human rights are raised collaterally in non-Code civil legal proceedings, that the court can actually apply and decide the law of the land.

Further (and thankfully) the rationale of the Tranchemontagne case is broad enough to support the proposition that most other tribunals (before which most of Ontario's legal matters are decided these days), also have Code jurisdiction. This exalted state is achieved when the tribunal has general jurisdiction to determine fact and law that is collaterally necessary to the case before it, something which was rarely an issue before everybody got Code-shy back in the 1980s. In any event, and in order to specifically accomodate the Tranchemontagne criteria, the new Code added the following provision:
s.39
The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.
Imagine that, a legal body having jurisdiction to decide legal issues.

(d) Procedures Regarding Dismissal for Lack of Jurisdiction

Of course that's what the legislature says. What the Tribunal thinks of this is yet to be seen, and it has granted itself ample authority to preserve it's 'bad old ways' should it be so inclined:
s.6.6
An Application accepted by the Tribunal for processing:

...

(c) will be dealt with according to Rule 13, where the Tribunal
determines that the Application is arguably outside of the
Tribunal's jurisdiction.

- and -

s.13.1
The Tribunal may, on its own initiative or at the request of a
Respondent, filed under Rule 19, dismiss part or all of an
Application that is outside the jurisdiction of the Tribunal.

Note:
The Rule 19 reference is to 'motions' [see Ch.11:
"Motions"], and means that a motion is required for a
party to obtain an order dismissing an application for
lack of jurisdiction.
Where the Tribunal has jurisdictional doubts it may, prior to sending the application to the respondents, initiate dismissal for lack of jurisdiction by issuing a "Notice of Intention to Dismiss the Application" - with reasons - and serve it on the applicant ONLY [Rules 13.2]. The applicant then has 30 days to file written submissions in opposition.

Regardless of the outcome (ie. dismissal or continuance, stemming from either party motion or Tribunal initiative) then the Tribunal must serve its decision on all participants, and as well send to the other participant copies of "the Application, the Applicant's submissions and all correspondence between the Tribunal and the Applicant on the jurisdictional issue" [Code s.13.3, 13.4].

Note that a decision to continue with an application after a jurisdictional motion (or initiative) has been considered, is not considered a "final decision" regarding the issue [Rule 13.5]. This has two implications:
  • firstly, the Tribunal is reserving its right to 'change its mind' and later dismiss the application on jurisdictional grounds (as the case unfolds in more detail); and

  • secondly, any attempt to judicially review a decision to continue
    an application will almost certainly be defeated under the
    judicial review doctrine of 'prematurity' [see Ch.20: Judicial
    Review].

    On the other hand, and assuming that all other Tribunal-level
    procedures (such as reconsiderations) are exhausted first, a
    decision to dismiss an application on jurisdictional grounds
    should not be considered 'premature' for judicial review
    purposes, allowing judicial review to proceed if the case is
    otherwise meritorious.

5. Expedited Proceedings

(a) Overview

'Expedited proceedings' are just what they sound like: accelerated application and hearing procedures. Technically, the provisions establishing these 'expedited proceeding' requests are available only to 'applicants', but circumstances where respondents may wish the same can be foreseen. Respondent 'request to expedite' could conceivably be brought by way of regular motion [see Ch.11 "Motions"], relying on one or more of the Tribunal's many plenary procedural authorities (see Ch.7: "The Tribunal and its Powers").

Readers should be careful not to confuse 'expedited proceedings' with proceedings for 'interim remedies', which are discussed in s.6 below. Interim remedies are orders determining the rights status quo of a situation pending the outcome of the final disposition, while expedited proceedings just accelerate that final disposition.

(b) Procedures

The process of initiating 'expedited proceedings' is not the standard motion procedure of R19, but a specialized process using the following form [Rule 21.1]:

Form 14: Request to Expedite an Application

According to Rule 21.1 this form should be served and filed simultaneously with the Application (see Ch.8: "Private Applications"). While it is certainly possible to imagine circumstances in which a party may wish to seek expedition after the Application stage, that is not accomodated for in Rule 21 and may require a motion (see generally on motions Ch.11) to waive under Rule 5.2:
Rule 5.2
The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.
In response to a Request to Expedite, the respondents may serve on all participants and file [within 7 days of the Request being "sent" (not received) or as the Tribunal directs] [Rule 21.3]:

Form 15: Response to Request to Expedite an Application

(c) Grounds

In order to be granted, the fact situation and the interests of the applicant must "require an urgent resolution of the issues in dispute", and as well successfully address the following issues [Rule 21.1-2]:
  • any urgent circumstances that may affect the fair and just resolution of the merits of the Application;

  • the harm that would result if the request is denied; and

  • whether the other parties consent to the request.

    Note:
    Rule 21.1 (addressing expedited procedures) specifically refers to
    Rule 24 (contravention of settlements) being applied in conjunction
    with a Request to Expedite. It makes some sense that such an
    allegation should be heard quickly, given the stigma that can
    attach to allegations of human rights violations.

6. Interim Remedies

(a) Overview

While the civil courts use 'interim' injunction and stay proceedings to determine the status quo pending the outcome of litigation, the Code regime has a similar provision for 'interim remedies'. The criteria for the triggering of Code interim orders are much the same as those in their civil court counterpart.

Circumstances which may call for an interim remedy are those where the time delay required to achieve a final 'regular' disposition of a Code application may result in serious or even irreparable harm to an applicant.

(b) Procedure

. Overview

There is a specific procedure for seeking an interim remedy, so do not try it using the generic 'motions' procedure set out in Ch.11 ["Motions"] unless you are before the Tribunal in an oral or telephone hearing and an urgent, unexpected need for it arises.

Such Requests for Interim Remedies are meant to be initiated simultaneously with the commencement of an Application [see Ch.8, "Private Applications"], and the documentation served and filed with it [Rule 32.1]. That said, the Tribunal plainly has enough procedural discretion to consider a Request for Interim Remedy at a later point in the life of an Application, particularly with its broad ability to waive the Rules on motion by a party as per Rule 5.2, quoted above in s.5(b).

. Request for Interim Remedy

The form used is:

Form 16: Request for Interim Remedy


The Request must include (the form will call for all of this) [Rule 23.3]:
  • a detailed description of the order sought;

  • one or more declarations signed by persons with direct first-hand
    knowledge detailing all of the facts upon which the Applicant
    relies; and

  • submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances.
Given the nature of the interim remedy procedure, these requirements deserve a lot of effort and attention to detail. Neither courts nor tribunals will interfere with status quo rights situations lightly, and only very strong cases for interim remedy are likely to succeed.

. Response to Request for Interim Remedy

Respondents are then required within 7 days after delivery of the Request to (first) serve on all participants and then file a [Rule 23.4]:

Form 17: Response to Request for Interim Remedy

The Response must include [Rule 23.5]:
  • one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Respondent relies; and

  • submissions with respect to the merits of the Application, the
    balance of harm or convenience and why an interim remedy would
    not be just and appropriate in the circumstances.
(c) Criteria

I mentioned above that the grounds for granting an interim remedy are similar to those for its civil court counterpart, the interim injunction or stay. Anyone involved in such a Request therefore is well-advised to review the substantial body of case law that has evolved in the civil courts regarding such proceedings. I will not attempt that here other than to set out some general principles and comments.

The Code interim remedy criteria are that [Rule 23.2]:
  • the Application appears to have merit ("merit");

  • the balance of harm or convenience favours granting the interim
    remedy requested ("balance of convenience"); and

  • it is just and appropriate in the circumstances to do so ("just
    and appropriate").
The last of these is a little silly as no one could seriously argue that an interim remedy should be granted where it would be either 'unjust' or 'inappropriate'. It is interesting to note that the civil interim injunction/stay test shares the first two of these criteria ('merit' and 'balance of convenience'), but has a third, key requirement of 'irreparable harm', which is generally interpreted to mean harm that cannot be later compensated for by a money award. While the listed Code criteria do not include this criterion expressly, any evidence supporting it should be marshalled and advanced as the issue lies at the heart of the purpose of interim remedies.

It is my view that - assuming a case has at least plausible legal and factual merits - the unstated issue of 'irreparable harm' is the most persuasive criteria. It may be stated succinctly as the question: "If the interim remedy is not granted, will the Applicant suffer an intolerable rights-infringement in the time it is likely to take to finally dispose of the application?".

Another consideration, at least when facing a government respondent, is that courts grant considerable 'deference' to the interests of governments in interim injunction/stay situations. This is grounded on reasoning that the 'rights' of governments, being the representatives 'of the people' (ie. 'everyone else in Ontario'), are to be weighed much more significantly than those of individuals. This reasoning can and has been extended to increase the weight of the government interest, even when that interest is poorly-defined or prospective only (ie. a future interest).


7. General Interlocutory Orders Having Summary Effect

(a) Overview

All of the above-considered summary procedures tend to be associated with a specific underpinning rationale (eg. res judicata, lack of jurisdiction, default, urgency). As is noted however in Ch.7: "The Tribunal and its Powers", the Code and the Tribunal-made Rules under it delegate to the Tribunal broad and often ill-defined procedural discretionary powers which can have the effect of abbreviating both the substantive (rights) and procedural entitlements of an applicant. Some general forms of these interlocutory ('during the proceeding') orders are considered in this section, but readers should be wary of them arising in several forms in association with the numerous stages in any Code application procedure.

The use of these powers against an applicant can be difficult to challenge. Getting a court to review interlocutory ('during a proceeding') orders before the case is finally determined is difficult [see the doctrine of "prematurity" in Ch.20: "Judicial Review"], and (even then) judicial review of interlocutory orders after a final judgment may be handicapped or effectively barred by the absence of detailed reasons (or any at all) for the interlocutory order.

(b) Orders Narrowing Issues

Pursuant to Rule 1.7(h), the Tribunal may make orders 'defining and narrowing the issues in order to decide an application'. This innocuous-sounding authority has the potential to be applied against huge swaths of an applicant's case in a summary manner, removing them from the process before a final determination is made on them in the final Tribunal order.

(c) Orders Limiting Evidence or Submissions

Obviously, an interlocutory order that 'limits the evidence or submissions on any issue' can have the same impact as an order narrowing issues [Rules 1.7(n)]. One cannot advance one's fact case or necessary legal arguments if one is expressly barred from doing so.

(d) Orders Barring Evidence or Pleadings Where Delivery Breach

It is an almost universal practice now in court and tribunal proceedings to require some form of pre-hearing evidence (usually documentary evidence) disclosure. The Code law on disclosure is discussed in Ch.15: "Evidence". Also, once past the exchanging of the main 'pleadings' (ie. Application and Responses - which are served by the Tribunal itself) then other pleading-related documents (eg. Replies and any number of 'Requests') are subject to proper format requirements and service timelines.

The Tribunal has the authority, "where a party fails to deliver material to another party or person as required by these Rules", to "refuse to consider the material, or may take any other action it considers appropriate" [Rules 5.6].

When evidence is not disclosed prior to a hearing, but is then presented at a hearing for acceptance, it really just amounts to late (and inconvenient) disclosure. The normal civil court and administrative tribunal response is to grant an adjournment, if requested by the other party, to give them time to consider the material and to call responding evidence and make legal submissions with respect to it. Sometimes, if the court or tribunal is particularly peeved by late disclosure they may make a costs order against the offending party (assuming they have costs jurisdiction, which the Tribunal does not). Similar indulgence is granted by most courts and tribunals where pleadings are inadvertently late.

All that said, and given the past extreme gate-keeping of the OHRC system throughout its entire history, parties cannot safely rely on typical legal practices (ie. adjournment) in situations of late delivery of evidence or other documents, and may find themselves completely barred from calling the evidence or advancing the arguments. That situation is identical to that discussed in (c) above and can have an obvious prejudicial effect of summarily amputating essential parts of one's case.

(e) Orders Barring Issues Where Not Pleaded

The documents which set out legal claims, defences and positions - here the 'Application', the 'Response', the Reply', any of several 'Requests' and more - are often generically referred to in litigation as "pleadings". When a claim or defence is set out in the pleadings it is said to have been 'pleaded' or 'pled'. Pleading one's issues is to legal argument what disclosure [(d) above] is to evidence: both give notice to the other parties of what is in dispute in the case.

The Rules provide that [Rule 5.7]:
5.7
Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 17.2 [disclosure of witness' anticipated evidence] or 18.2 [Case Assessment Direction], the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.
Note the ameliorating phrase "unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings", which is lacking in the similar Rule 5.6 provision considered in (d) above. This 'exception' articulates much-needed guidance to the presiding Tribunal that facts and issues should not be summarily dismissed or barred solely by reason of late notice to the other parties. In such circumstances the issue should always be whether the lateness irreparably harms the other party, failing which it can be remedied by adjournment - or, if the issues are not material (important) to the case then there may not be a need for an adjournment at all and the matter can be dealt with by way of an on-the-spot pleading amendment [see Ch.8: "Private Applications"].


8. Where an Order Finally Disposes of an Application

As is discussed above, most of the proceedings that I have characterized as "summary" have as their main object the dismissal (ie. termination) of the application. It is only proper that a consequence this serious be attended by a high degree of 'natural justice' (ie. strong procedural rights).

Minimally then, any 'final' decision or order finally disposing of rights (short of a reconsideration application: see Ch.19: "Reconsiderations") must be made within the jurisdiction of the Tribunal and the particular procedure being utilized at the time, and - ideally - it should be issued with Reasons so that it can be both transparent and subject to some sort of judicial scrutiny.

The Code requires that, regardless of the procedural nature of the
final decision or order [Code s.43(2)2]:
s.43(2)
The rules shall ensure that the following requirements
are met with respect to any proceeding before the Tribunal:

2. An application may not be finally disposed of without written
reasons.
It is important to note of course that 'final' decisions or orders are not always those issued after the conclusion of full application hearing process (in fact those are the minority). As is noted in this chapter there are numerous oppourtunities for the Tribunal to ('finally') kill off a case well before hearing. All such orders are subject to the above-quoted s.43(2)2 duty to provide reasons.

To date however, and in clear violation of Code s.43(2)1, the Tribunal has yet to make any Rules that specifically require Reasons to be issued when the Tribunal makes a final order [the closest thing to an exception to this is Rule 13.2, which requires Reasons be provided with a preliminary 'Notice of Intention to Dismiss an Application' (for lack of jurisdiction)].

In Ch.20 ["Judicial Review"] and elsewhere in this Isthatlegal.ca Human Rights (Ontario) Legal Guide, I have discussed the resistance of the entire Code system (both legislative and Tribunal) to subjecting Tribunal decisions to judicial scrutiny (particularly the absence of a statutory appeal mechanism). In light of that background, and as Reasons for Decision are the primary basis on which a court may review a lower tribunal's decision or order, the failure of the Tribunal to make Rules requiring Re asons be issued with final decisions is disconcerting. We can only hope that actual Code practice, if it is not going to comply with its rule-making duties, at least complies with the intention of the law by issuing Reasons for any final order as Code s.43(2)2 plainly requires.

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