Simon's Megalomaniacal Legal Resources

1. Overview
   
2. Summary Dismissal Hearings
   (a) Overview
   (b) Procedures
   (c) "Summary-Summary" Procedure
   (d) Comment on 'Reasons' for a Summary-Summary Decision
   (e) Conduct of the 'Full' Hearing
   
3. Procedures Regarding Dismissal for Lack of Jurisdiction
   
4. 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
   
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 Non-Disclosure
   (e) Orders Barring Issues Where Not Pleaded
   
8. Reasons Where an Order Finally Disposes of an Application
   
9. Vexatious Proceedings or Conduct

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1. Overview

Historically established in the civil courts, and existing in many (if not all) of the varied tribunals in Ontario, are procedures for summary 'resolution' (usually dismissal) of matters before them.

For the most part they are innocuous and necessary procedures, dealing with situations of respondent non-participation, expedited proceedings and such-like. However the Human Rights Code context is unusual in it's sad, brief history for having summary procedures that deal with whether so many matters brought before it are truly within it's jurisdiction. I can think of only one other tribunal that has separate procedures to determine it's own jurisdiction over matters brought before it (the Landlord and Tenant Board), but for the most part jurisdictional matters are left to an obscure legal area populated by old judicial review cases that separate the area from the closest fields around it. One should know them in order to master the area of law, but they rarely arise in practice.

But for human rights law the issue of jurisdiction has been so controversial and involved that to this day it forms a central part of so many of the cases brought, both before the Tribunal and elsewhere, that many do not survive. This topic is expounded on in Ch.1 - which should be read by anyone involved seriously in a human rights case - but the procedures it is normally contested in are normally summary procedures, and it is that with which we start next.

As for summary dismissal generally (not just on jurisdiction grounds), the readers will get a serious reality inoculation by reading s.2 ("Summary Dismissal Hearings"). which sets out post-2008 Rules on the subject. I've never seen anything like them before, and hope never to again.


2. Summary Dismissal Hearings

(a) Overview

Since the last time I did an update on this Human Rights Legal Guide, the Tribunal Rules have put forth new 'Summary Hearing' rules (Rule 19A). They should more accurately be called 'summary dismissal hearing' rules, because that's what they're about - dismissal. They have nothing to do with the granting of applications by rights-claimants, summary or otherwise - but rather they apply [Rule 19.3A]:

(w)hen a party requests that an Application be dismissed pursuant to this Rule ...

and they are only concerned with [Rule 19.1A]:

... the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

Consequently I'll refer to them as the 'summary dismissal hearings'.

(b) Procedures

The summary dismissal procedure may be initiated unilaterally by the Tribunal, or on request of a party [Rule 19.1A]. When it is directed by the Tribunal, the procedures are entirely up to the Tribunal and you will (hopefully) be advised by the Tribunal of procedures that following [see (c) and (d), below.]

When the process is started by a party, it must serve a copy of the Practice Direction: Summary Hearing Requests, and serve and file with the Tribunal a completed "Request for Summary Hearing (Form 26), which includes full argument in support of the Request that the Application be dismissed" [Rule 19.3A]:

Form 26: Request for Summary Hearing
In response, the Applicant may serve and file within 14 days [Rule 19.4A]:

Form 11: Request to Request for an Order
It is worth noting that Form 11's are the forms used generally for responses to 'motions' [see Ch.11: "Motions"].

(c) "Summary-Summary" Procedure

The Tribunal, on reviewing the "Request and any Response to the Request" may dismiss the application "on the basis that there is no reasonable prospect that the Application will succeed" [Rule 19.5A]. This is an administrative act, arguably a written 'hearing', but nothing more than the exchange of documents between the parties. It's result is either the dismissal in whole or part of the application, or (the most successful for the applicant rights-claimant) a dismissal of what can only be called the 'summary-summary' procedure. That is, if the applicant 'wins', they are now facing a 'full' summary dismissal hearing (I know of no other administrative or court procedures where applicants face not one, but two, Tribunal-sponsored efforts to dismiss their case - and the Practice Direction calls for these proceedings to be brought quickly, 'preferably' even before a Response is filed).

The effect of 'loss' for an applicant in a 'summary-summary' process is the dismiss the application, in part or in whole. Dismissal of the whole application is of course nothing less that the end of the case for the rights-claimant or applicant.

(d) Comment on 'Reasons' for a Summary-Summary Decision

Someone facing this outcome, after having gone to all of the trouble to serve and file a Tribunal-acceptable application (no small feat if you've been paying attention), and of course after having endured through what they feel is human rights discrimination, will want to know why. However, they may then note, by virtue of Rule 19.5A, that:

19.5A
The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party's request.

In turn, this is apparently in direct contravention of Rule 3.5.1 ["(a)n Application will not be finally disposed of without written reasons."] and Code s.43(2)2 which reads:

(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.

Go figure. My initial review of the case law on 'summary-summary' hearings is that, of the cases that exist, the Tribunal has in fact issued reasons [note the wording of 19.5A: "need not give reasons", which means that they can if they want]. This doesn't mean to say that they always do, or perhaps they issue reasons when the applicant makes an issue of it and commences judicial review (in part for 'lack of reasons'), but there are no cases yet I can find where no reasons have been issued after a summary-summary 'hearing'.

This issue is dealt with in more detail in s.8 "Reasons Where an Order Finally Disposes of an Application".

(e) Conduct of the 'Full' Hearing

Unless the Tribunal orders otherwise, summary dismissal hearings don't have any documentary (Rule 16) or witness disclosure (Rule 17).

But that's pretty much it for details on the conduct of a summary hearing. In fact, the Tribunal may order whatever "steps the parties must take prior to the summary hearing" [Rule 19.2A]. Since there are no other portions of the Code, the Regulations or the Rules which articulate with any greater detail on the conduct of a Summary Dismissal Hearing it is left to the Tribunal.

There is the "Practice Direction: Summary Hearing Requests" (last issued May 2013), which anyone facing such 'summary dismissal' proceedings should of course review:

Practice Direction: Summary Hearing Requests
But readers should be aware of the limitations of any Practice Direction [see generally Ch.7, s.3]. This one starts with the caution:

The procedure outlined in this Practice Direction provides general information only. It is not a rule within the meaning of the Human Rights Tribunal of Ontario (HRTO)'s Rules of Procedure. The HRTO may vary the approach to conducting a summary hearing where it considers appropriate (Rule A4.2).

3. Procedures Regarding Dismissal for Lack of Jurisdiction

The Code (as of 2008) sets out this broad dismissal authority:

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.

This authority has been taken up (although not heavily elaborated) by these Rules:

Rule 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.

....

s.13.1
The Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19 [SS: R19 deals with 'motions'], dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.

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 when resolved (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 participants 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.

Case Note: Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange
In Mohmand v. Human Rights Tribunal of Ontario and Ultimate Currency Exchange (Div Ct, 2021) the Divisional Court issued their decision on a judicial review application by an HRTO applicant. The HRTO issued a 'NOID' (Notice of Intent to Dismiss) on the basis that the respondent "appeared to be a federally regulated employer or service provider", it gave the applicant 30 days to respond or else have their application dismissed. The applicant did not respond to that (and so the HRTO application was dismissed), but filed a similar application with the federal CHRC which was also dismissed on 31 October 2019 because "it could not hear the complaint because UCE was a provincially regulated entity under the constitution" - the precise opposite to what the applicant had been told by the HRTO. The Divisional Court reviewed the procedural steps taken by the HRTO (which were consistent with policy and rules) and supported the HRTO's procedure as "reasonable", thus dismissing the judicial review application.

I couldn't read this case without thinking, and then voicing outloud: "outrageous, outrageous" to myself. The Divisional Court made much of the fact that the HRTO was an expert tribunal - and that 'NOID' issuance was not a decision, but rather "an opportunity to make submissions on the jurisdiction issue" [para 22]. There were other justifications by the court but to me, the idea that an applicant could face such plainly contradictory outcomes from the two bodies charged with administering the two human rights statutes - and then to have the dismissal of their application found to be "reasonable" by a reviewing court is just shocking. I can't recall that I've had a similar reaction to a case for years before this.

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

(a) Overview

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 it.

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 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 longer 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(f): "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 very real.

(c) Failure of Respondent to file Response

Again, consistent with civil 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-determination 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. It seems only fair that the subject party be advised plainly in the 'final' communication of the consequences of their non-response, and that the communication be repeated at least once.

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.

(e) Non-Attendence at Scheduled Hearing

"Where a party has been notified of a hearing and fails to attend, the Tribunal may" [Rule 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-attendence at hearing and on their face are unobjectionable.


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") "in circumstances which require an urgent resolution of the issues in dispute".

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

The Request to Expedite must 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, if the regular processes are followed;
  
  
• the harm that would result if the request is denied; and
  
  
• why the Application should be given priority for Tribunal resources over other matters.

And it must also provide:

• a detailed description of the requested changes to the Tribunal's normal process, including timelines;
  
  
• one or more declarations signed by persons with direct first-hand knowledge detailing all the facts upon which the Applicant relies in support of the request to expedite.

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.

Where the Tribunal denies a Request to Expedite, it need not give reasons [Rule 21.2.1].


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 disposition of a Code application in the regular course 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' may be served and filed simultaneously with the commencement of an Application [see Ch.8, "Private Applications"], or separately at a later stage [Rule 23.1].

. 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 23.2, 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 situation lightly, and only very strong cases for interim remedy are likely to succeed.

. Response to Request for Interim Remedy

Respondents are required to serve a Response on all participants within 7 days after delivery of the Request, and file the Response within that time or as the Tribunal shall direct [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 case?".

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. lack of jurisdiction, default, urgency etc). 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 (if any at all) for the interlocutory order.

(b) Orders Narrowing Issues

Pursuant to Rule 1.7(8), 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 further consideration.

(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(14)]. 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 Non-Disclosure

It is an almost universal practice now in court and tribunal proceedings (the Landlord and Tenant Board being an exception) to require some form of pre-hearing evidence (usually documentary evidence) disclosure. The Code law on disclosure is discussed in Ch.15: "Evidence".

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 (in accordance with the timelines set out in the Rules), 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 brief 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 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 16 [disclosure of documents] or 17 [disclosure of witnesses], 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, several 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 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 (ie. judicial review).

In fact (and law for that matter), 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. 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 Code s.43(2)2 duty to provide reasons.

Added to the Rules (since my 2009 update of this Guide) now is Rule 3.5.1 which requires that "(a)n Application will not be finally disposed of without written reasons."

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, we can only hope that the reasons as issued are able to bear that weight.


9. Vexatious Proceedings or Conduct

Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding [Social Justice Rules 8.2]. This authority emanates from s.23(1) of the Statutory Powers Procedures Act.