June 5, 2026
Overview
The Ontario Human Rights Commission (OHRC) is an independent arm’s-length agency of government established under the Human Rights Code (the Code)[1]. The OHRC is one of the three pillars of Ontario’s human rights system, alongside the Human Rights Tribunal of Ontario (HRTO) and Human Rights Legal Support Centre (HRLSC). The OHRC is responsible for promoting and advancing human rights and addressing systemic discrimination in Ontario. As part of its mandate, the OHRC appears before the HRTO as a party and works to ensure that all Ontarians have access to justice under the Code. The OHRC has been in existence for 65 years through different iterations of Ontario’s human rights system. It has significant experience with the challenges of processing human rights applications, managing caseloads, and addressing backlogs and delay.
It is in this context that the OHRC makes the following submissions with respect to the HRTO’s consultation on its proposed updates to its Rules of Procedure and Practice Directions.
We recognize that 85% percent of applicants are self-represented[2] and there has been a 67% increase in intake of new applications over the last three years[3]. We support efforts to ensure that people in Ontario can efficiently, effectively and fairly access justice and protect their rights through Ontario’s human rights system. To these ends, the OHRC welcomes a number of the proposed updates, including:
- The removal of the “balance of probabilities” standard for dismissing an application due to lack of jurisdiction in the Practice Direction on Jurisdiction
- The addition of factors that may be considered when determining whether an applicant has abandoned their application in the Practice Direction on Communicating with the Human Rights Tribunal with Ontario, and
- The update to the Practice Direction on Reconsideration, which states that, in most cases, a request for reconsideration will be assigned to a different adjudicator than who made the decision which is the subject of the request.
The OHRC is also encouraged by the HRTO’s practice since March 1, 2026 of sending an applicant a final follow-up letter with an additional 28 days to respond, before their application will be dismissed as abandoned.
The OHRC is concerned that the HRTO will continue to consider non-jurisdictional issues as jurisdictional. This is reflected in the Proposed Practice Direction on Jurisdiction, and limits access to justice for claimants, particularly those from marginalized communities.
The OHRC is also concerned that the practice of issuing a final follow-up letter is not codified in the Rules of Procedure or Practice Direction on Communicating with the Human Rights Tribunal of Ontario. Codification would ensure consistent application of the practice and advance transparency.
Finally, the OHRC is concerned about the proposed elimination of mandatory case conferences within 45 days of responses being filed in OHRC-initiated applications to the HRTO. These case conferences are important in OHRC-initiated applications, which are typically complex systemic discrimination claims.
To ensure efficiency, effectiveness, and fairness, the OHRC recommends that the HRTO:
- Remove non-jurisdictional issues from its Practice Direction on Jurisdiction and its accompanying Informational Sheet & FAQ
- Codify its practice of issuing a final follow-up letter in its Practice Direction on Communicating with the Human Rights Tribunal of Ontario and consider adding additional guidance, like in the British Columbia Human Rights Tribunal’s “Policy on a complainant’s duty to communicate with the Tribunal”
- Maintain the requirement to hold a case conference within 45 days of responses being filed in OHRC-initiated applications (i.e. s. 35 applications).
In addition, the OHRC has reviewed the HRLSC’s submissions and agrees with many of its recommendations.
Proposed updates to the Practice Direction on Jurisdiction
The objectives of the HRTO’s proposed amendments to its Practice Direction on Jurisdiction are to:[4]
- Implement the Divisional Court's guidance in Bokhari v Top Medical Transportation Services[5]
- Clarify and simplify the HRTO approach to jurisdictional reviews
- Establish a consistent process for parties including clear timelines and opportunities to make submissions, and
- Support access to justice through plain-language guidance and clear communication about when and how jurisdictional reviews occur.
The OHRC welcomes the removal of the “balance of probabilities” standard for dismissing an application due to lack of jurisdiction, and its replacement with the “plain and obvious” standard, consistent with Bokhari. However, the Proposed Practice Direction on Jurisdiction and its accompanying Informational Sheet & FAQ continue to treat non-jurisdictional issues as jurisdictional.
Non-jurisdictional issues should be removed from these documents.
The inclusion of non-jurisdictional issues is inconsistent with guidance from the courts in Bokhari and Canada (Human Rights Commission) v Canada (Attorney General)[6]. It is contrary to the legislative intent of changes to the Code, which implemented a direct access model, and does not align with the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons[7]. It is inconsistent to notions of access to justice. It has the effect of denying many applicants their right to an oral hearing before the HRTO, where they explain the nature of their experience to an expert human rights adjudicator. This is particularly important for self-represented applicants. Many are from marginalized communities and may lack the legal knowledge and language skills needed to present their experiences as clear and concise legal narratives.
In Bokhari, the Divisional Court concluded that the HRTO impermissibly conducted a disguised merits review, which was not a proper jurisdictional analysis. It cited the Supreme Court’s decision in Canadian Human Rights Commission, where the Supreme Court held that the question, whether the elements of a human rights claim are made out, is not jurisdictional. Specifically, the Supreme Court held that what falls within the meaning of “services”, a social area of the Canadian Human Rights Act, was not a jurisdictional question.[8]
Despite Bokhari and Canadian Human Rights Commission, the HRTO’s proposed updates to its Practice Direction on Jurisdiction and its accompanying Informational Sheet & FAQ include non-jurisdictional issues. The proposed updates to the Practice Direction on Jurisdiction include the following examples:[9]
- The “events and allegations in the Application do not appear to have occurred within one of the social areas identified in the Code”, and
- The “Application does not explain how the applicant’s Code grounds may have been a factor in the adverse conduct of the respondent”.
- “Although the Application alleges reprisal, the allegations could not engage the criteria set out in section 8 of the Code”
The second example (i.e. whether there is a link between the conduct of the respondent(s) and the applicant’s Code protected characteristics) is also included in both the HRTO’s current and proposed Practice Direction on Summary Hearing Requests. However, it is not classified as a jurisdictional issue in these documents.[10]
The Informational Sheet & FAQ include the “alleged events did not occur within one of the Code’s social areas” and “based on the applicant’s description of events, the respondent’s actions could not be prohibited by the Human Rights Code” as jurisdictional issues.[11]
The Supreme Court held that the concept of “jurisdictional questions” should be applied narrowly and not be expanded in a manner that converts any legal dispute into a “jurisdictional question”.[12] Ultimately, determining whether there is a connection between the claimed ground and the conduct will usually require a weighing of the evidence, a drawing of inferences and the consideration of legal arguments regarding the nature of the necessary connection. These are not questions of jurisdiction. These are about whether discrimination has been established. Similarly, the OHRC submits that the whether the test for reprisal is satisfied is a non-jurisdictional question that will usually require the weighing of evidence.
While there are indeed instances in which an application may present no reasonable chance of establishing a connection between the claimed ground and the conduct, this does not render it a “jurisdictional” case. The Legislature, through s. 43(2)(1) of the Code[13] and s. 4.6 of the Statutory Powers Procedure Act[14], has recognized the importance of providing all applicants the opportunity to tell their stories directly to an adjudicator in an oral hearing. This was the specific legislative intent behind the implementation of a direct access model in 2008. It ensures that applicants have an opportunity to be heard and understood and can make their best case, even if their lack of legal training or limited language skills limited the quality of their written application.
It is the Summary Hearing process that provides the HRTO with the flexibility to hear and dismiss cases that have no reasonable chance of success in an expeditious manner that protects the rights of claimants to have their claim heard and understood by an expert adjudicator.
The HRTO’s treatment of non-jurisdictional issues as jurisdictional appears to be reflected in HRTO data, where “general allegations of unfairness” (i.e. the Application fails to identify specific acts of discrimination within the meaning of the Code) are treated as jurisdictional.
The HRTO has appeared to increasingly issue Notices of Intent to Dismiss (NOID) based on jurisdiction.[15] A qualitative analysis was conducted of a random sample of 50 clients that came to the HRLSC for legal support after receiving a NOID between July 1, 2021, and October 31, 2021. After excluding irrelevant applications, there were 43 cases. Group A issues were “clear jurisdictional issues with a readily identifiable statutory or constitutional basis”. Group B issues were “reasons for dismissal that appeared more discretionary”. The analysis found that:[16]
Of the 43 cases, nine received NOIDs identifying issues in the Group A category. Thirty-nine of the cases received NOIDs identifying Group B issues, but six of these also displayed concurrent Group A issues. Therefore, three had solely Group A issues, and 33 had solely Group B issues…By a significant margin, the most frequently cited issue was the “general allegations of unfairness” category (“FD”), with 33 of 43 cases citing this reason for dismissal.
The OHRC understands that the HRTO’s proposed changes to Rule 13 (Dismissal of an application outside the Tribunal’s jurisdiction) state that the HRTO may “raise the question of its jurisdiction, or issue a Notice of intent to Dismiss, at any stage in Application’s processing”. The OHRC suggests that jurisdictional reviews occur early in the HRTO process, as it is the expectation of an applicant that their application will proceed to a hearing in later stages of the HRTO process. To this end, the OHRC welcomes the HRTO’s practice described during our briefing that every new complete application is reviewed by an adjudicator for jurisdiction.
Finally, the OHRC agrees with the HRLSC that:[17]
The HRTO should be alive to the Court’s direction [in Bokhari] that in some instances, deciding a jurisdictional question may require the Tribunal to resolve a factual dispute that would properly be decided on a balance of probabilities at a summary hearing or at a hearing on the merits.
Examples included where there may be a factual dispute about whether an application was brought within one year after the last incident of discrimination, and whether the alleged discrimination occurred in Ontario.[18]
OHRC Recommendation
1. The HRTO should remove non-jurisdictional issues from its Practice Direction on Jurisdiction and its accompanying Informational Sheet & FAQ
2. Proposed updates to the Practice Direction on Communicating with the Human Rights Tribunal of Ontario
The objective of the HRTO’s proposed changes to its process on abandonments is to “improve fairness and clarity and give applicants a meaningful opportunity to respond as they will be provided a final follow-up letter” [19].
The HRTO has been issuing final follow-up letters in practice since March 1, 2026. When no response is received by a mandatory submission deadline, the HRTO will issue a final follow-up letter that:[20]
- Provides the applicant an additional 28 days to submit the required materials or response
- Clearly explains the potential consequences of non-response, including dismissal of the application as abandoned, and
- Directs parties to available information and supports to assist with next steps.
The HRTO’s practice of issuing final follow-up letters is a positive development. Prior to this practice, there were 1514 final decisions of the HRTO in 2023. 1159 (77%) were dismissals due to abandonment.[21]
The OHRC is also encouraged by the proposed changes to the HRTO’s Practice Direction on Communicating with the Human Rights Tribunal of Ontario. It includes factors that may be considered in determining whether an applicant has abandoned their application, in line with the Divisional Court’s decision in Ramirez v Rockwell Automation Canada Ltd.[22]. Factors that may be considered by the HRTO include:[23]
- The context surrounding the applicant’s current failure to respond to the HRTO’s direction
- Any history of unsuccessful attempts to communicate with the applicant
- Whether the applicant appears to be receiving the HRTO’s communications, and
- The amount of time elapsed since the applicant last communicated with the HRTO.
To ensure consistency and advance transparency, the HRTO should codify its practice of issuing a final follow-up letter. To advance access to justice, the HRTO should consider providing additional guidance on abandonments, like the guidance in the British Columbia Human Rights Tribunal’s “Policy on a complainant’s duty to communicate with the Tribunal”. This policy requires the British Columbia Human Rights Tribunal to consider:[24]
The number of unsuccessful attempts to communicate with the complainant
- The time elapsed since there last was contact with the complainant
- The nature of the defaults in communication
- The results of a limited search of selected public phone and address registries for British Columbia and Canada, and
- Any other apparently reliable information which the Tribunal may have as to the complainant’s whereabouts.
OHRC Recommendation
3. The HRTO should codify its practice of issuing a final follow up letter in its Practice Direction on Communicating with the Human Rights Tribunal of Ontario and consider adding additional guidance, like in the British Columbia Human Rights Tribunal’s “Policy on a complainant’s duty to communicate with the Tribunal”
4. Proposed elimination of case conferences in OHRC-initiated applications
The HRTO’s Proposed Changes to its Rules of Procedure seek to eliminate mandatory case conferences within 45 days of responses being filed in OHRC-initiated applications to the HRTO (i.e. s. 25 applications). [25] The HRTO states that this is to reflect “how these matters are currently managed in practice”[26]. The HRTO’s Proposed Practice Direction on Case Management Conference Calls clarifies that case conferences are discretionary in all hearings and may still be directed where appropriate.[27]
Case conferences help to ensure that hearings proceed in an efficient and orderly manner. In all litigation, in advance of a hearing questions will arise with respect to documentary disclosure, witness requirements, witness order, preliminary legal issues, hearing length and other logistical issues. A case conference operates as a means by which those questions can be dealt with in advance of the hearing, to ensure that the hearing is able to proceed in an efficient and effective manner.
The importance of case conferences is most evident in OHRC-initiated applications to the HRTO. They typically involve complex systemic discrimination claims, pursuant to the mandate of the OHRC and its duty to protect the public interest. Here, all parties and the HRTO benefit from the availability of a process to address practical issues in advance of a hearing of an OHRC-initiated application.
The OHRC submits that the requirement to hold a case conference within 45 days of responses being filed in s. 35 applications should be maintained to not interfere with the OHRC’s ability to protect the public interest. Rule 12.5 recognizes the importance of such case conferences in the circumstance of the complex, systemic claims that can be expected to be initiated by the OHRC in the public interest under its s. 35 powers.
OHRC Recommendation
5. The HRTO should maintain the requirement to hold a case conference within 45 days of responses being filed in OHRC-initiated applications (i.e. s. 35 applications)
6. Other recommendations of the HRLSC
The OHRC agrees with many of the HRLSC’s recommendations, including that the HRTO should: [28]
- Expand the proposed Practice Direction on Reconsideration to reflect all four grounds for reconsideration found in Rule 26.5
- Provide greater clarification on final and interim decisions in the proposed Practice Direction on Reconsideration
- Expand the proposed Practice Direction on Mediation to reflect the option of confirming the parties’ intention to proceed with the Application found in Rule 15.9
- Provide further notice of an administrative closure in the proposed Practice Direction on Mediation before closing a file under Rule 15.9, and resolve the inconsistency between this practice direction and Rule 15.9 about the deadline to re-open a file
- Expand the proposed Practice Direction on Mediation to include factors that may be considered as exceptional circumstances warranting an exemption to mandatory mediation
- Include a section in the proposed Practice Direction on Requests to Withdraw about the consequences of withdrawing an application and potential HRTO responses.
Conclusion
The human rights system in Ontario relies on the fair, efficient and effective adjudication of human rights disputes by the HRTO. The OHRC supports efforts to improve the HRTO’s processes. To be effective, however, the HRTO process must remain fair to all parties who seek access to it, including applicants from marginalized communities who may not have the benefit of legal assistance.
The OHRC remains committed to working across the Human Rights System in Ontario, including with the HRLSC and HRTO as the HRTO considers changes to its Rules of Procedure and Practice Directions.
Endnotes
1 Human Rights Code, RSO 1990, c H.19.
2 Human Rights Tribunal Open Data, ‘‘HRTO — Intake report: Applications Received — Applicant representation Q2 2025-2026,” online: Tribunals Ontario tribunalsontario.ca/en/about/open-data/#panel3.
3 Human Rights Tribunal of Ontario, Stakeholder Meeting (22 May 2026), online: Tribunals Ontario tribunalsontario.ca/documents/hrto/HRTO_Town_Hall_Deck-May_22_2026-EN.pdfHRTO Stakeholder Meeting Slides].
4 Ibid.
5 Bokhari v Top Medical Transportation Services, 2026 ONSC 1073 (CanLII) [Bokhari].
6 Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 (CanLII), [2018] 2 SCR 230 [Canadian Human Rights Commission].
7 Canadian Judicial Council, Statement of Principles on Self-Represented Litigants and Accused Persons (September 2006), online: Canadian Judicial Council cjc-ccm.ca/sites/default/files/documents/2020/Final-Statement-of-Principles-SRL.pdf; These principles were endorsed by the Supreme Court of Canada in Pintea v Johns, 2017 SCC 23 (CanLII), 2017 SCC 23. Their application to tribunals was confirmed by the Divisional Court in Hirtle v College of Nurses of Ontario, 2022 ONSC 1479 (CanLII); See also Palmer v Toronto Transit Commission, 2025 HRTO 1779 (CanLII).
8 Bokhari, supra note 5 at para 24; Canadian Human Rights Commission, supra note 6 at paras 32-33.
9 Human Rights Tribunal of Ontario, Proposed Practice Direction on Jurisdiction (May 2026), online: Tribunals Ontario tribunalsontario.ca/hrto/consultation/practice-directions/.
10 Human Rights Tribunal of Ontario, Practice Direction on Summary Hearing Requests and Proposed Practice Direction on Summary Hearing Request (May 2026), online: Tribunals Ontario tribunalsontario.ca/hrto/consultation/practice-directions/.
11 Human Rights Tribunal of Ontario, Proposed Practice Direction on Jurisdiction (May 2026) - Jurisdictional Reviews Informational Sheet & FAQ, online: Tribunals Ontario tribunalsontario.ca/hrto/consultation/practice-directions/.
12 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at para 65; Canadian Human Rights Commission, supra note 6 at para 32.
13 Code, supra note 1, s 43(2)(1).
14 Statutory Powers Procedure Act, RSO 1990, c S.22, s 4.6.
15 Frank Nasca noted that 989 NOIDs were issued in 2021, which was 25% of total applications received, a significant increase from 696 (15.1%) in 2019 and 420 (9.89%) in 2020. Frank Nasca, “Jurisdiction and Access to Justice: An Analysis of Human Rights Tribunal of Ontario-Issued Notices of Intent to Dismiss” (2022) 35:3 Can J Admin & Prac 253 at 266-267.
16 Ibid at 269-271.
17 Human Rights Legal Support Centre, The HRLSC’s Stakeholder Input on the HRTO’s Proposed Amendments to the Rules of Procedure and Practice Directions (5 June 2026)[HRLSC Submissions].
18 Bokhari, supra note 5 at para 43.
19 HRTO Stakeholder Slides, supra note 3.
20 Ibid.
21 Emily Shepard, “The Rise of Abandonment Dismissals at the HRTO and Increasing Barriers to Access for Applicants” (2025) 38:3 Can J Admin L & Prac 248 at 255-256.
22 Ramirez v Rockwell Automation Canada Ltd., 2025 ONSC 1408 (CanLII) [Ramirez].
23 Human Rights Tribunal of Ontario, Proposed Practice Direction on Communicating with the Human Rights Tribunal with Ontario (May 2026), online: Tribunals Ontario tribunalsontario.ca/hrto/consultation/practice-directions/.
24 British Columbia Human Rights Tribunal, Policy on a Complainant’s Duty to Communicate with the Tribunal (3 December 2004, amended 15 July 2014), online British Columbia Human Rights Tribunal: www.bchrt.bc.ca/law-library/policies/duty-to-communicate/ [BCHRT Policy on Complainant’s Duty to Communicate with the Tribunal].
25 Human Rights Tribunal of Ontario, Proposed Updates to the HRTO’s Rules of Procedure (May 2026), online: Tribunals Ontario tribunalsontario.ca/documents/hrto/HRTO-Rules_of_Procedure_July2026_Consultation.html.
26 HRTO Stakeholder Slides, supra note 3.
27 Human Rights Tribunal of Ontario, Proposed Practice Direction on Case Management Conference Calls (May 2026), online: Tribunals Ontario tribunalsontario.ca/hrto/consultation/practice-directions/.
28 HRLSC Submissions, supra note 17.