Practice Direction on Summary Hearing Requests
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 5.2).
Rule 19A of the HRTO’s Rules of Procedure addresses summary hearings.
The Purpose of the Summary Hearing
The summary hearing is used to determine at an early stage whether an application should be dismissed because it has no reasonable prospect of success.
A summary hearing usually considers:
· whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or
· whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities,that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.
These tests were discussed first in Dabic v. Windsor Police Service, 2010 HRTO 1994. All HRTO decisions, including Dabic and others on summary hearings, are available on the Canadian Legal Information Institute website at http://www.canlii.org/.
The HRTO may order a summary hearing on its own initiative or may grant a respondent’s Request for Summary Hearing.
HRTO Initiated Summary Hearing
If it appears that that there may be no reasonable prospect that the Application will succeed, the HRTO can order a summary hearing on its own initiative. This decision can be made at any time and often occurs before the Response is filed.
Requesting a Summary Hearing
At any time after a Response has been filed with the HRTO, a respondent may request the Application be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application will succeed. A respondent must file a complete response before the HRTO will consider a Request for Summary Hearing.
To request a summary hearing, a respondent must deliver and file a Request for Summary Hearing (Form 26) providing detailed submissions about why there is no reasonable prospect that the Application, or part of the Application, will succeed. Full argument in support of the Request must be provided.
The completed Request for Summary Hearing must be delivered with a copy of this Practice Directionto the applicant and any other parties to the Application and filed with the HRTO along with a Statement of Delivery (Form 23).
Summary hearings are meant for an early determination of the issue of no reasonable prospect of success and should be requested as soon as possible. Requests for Summary Hearing filed after a hearing on the merits has been scheduled will rarely be granted.
Responding to a Request for Summary Hearing
An applicant who has received a Request for Summary Hearing (Form 26) may respond to the Request for Summary Hearing by completing a Response to a Request for Order (Form 11), delivering a copy to all parties and filing it with the HRTO, along with a Statement of Delivery (Form 23), not later than 14 days after the Request for Summary Hearing was delivered.
The HRTO will decide whether to grant the Request for Summary Hearing. The HRTO generally will not provide reasons for refusing a Request for Summary Hearing, which will be communicated by the HRTO’s Registrar. If the Request is allowed, the HRTO will issue a Case Assessment Direction (CAD) with directions for the parties. A Notice of Summary Hearing will be issued by the Registrar.
Case Assessment Direction
If the Request for Summary Hearing is granted or the HRTO has ordered a Summary Hearing on its own initiative, an HRTO adjudicator will issue a Case Assessment Direction (CAD) to the parties. The CAD will provide directions about:
· the issues to be dealt with at the summary hearing;
· any documents or other information which need to be given to the other side and filed with the HRTO and the deadlines for doing so.
The Summary Hearing
A summary hearing will usually be held by teleconference for half a day. The applicant will usually provide his or her arguments first. Oral evidence is rarely permitted.
The HRTO will send the parties a Notice of Summary Hearing telling them the date and time of the hearing. The Notice will indicate if the hearing will take place by teleconference or in person.
If the hearing is by teleconference, the Notice will provide the phone number and instructions for participating in the teleconference. If you experience difficulty connecting to the teleconference, contact the Registrar immediately. Contact information is provided on the Notice of Summary Hearing.
If the summary hearing is held in person, the Notice will give the address of the hearing location.
If the applicant does not attend the summary hearing, the Application will usually be dismissed as abandoned. If a party, other than the applicant, who received a Notice of Summary Hearing does not attend the hearing, the summary hearing may proceed in his or her absence.
The HRTO’s Rules about disclosure of documents and witnesses, Rules 16 and 17, do not apply in summary hearings. The CAD will give directions about any documents or other things which are required at the summary hearing.
The HRTO adjudicator will consider the submissions at the summary hearing and materials in the HRTO file and issue a written decision on whether all or part of the Application has no reasonable prospect of success. If the Application is not dismissed entirely, it will proceed in the HRTO process and the decision may set out the next steps in the process.
A copy of the decision is sent to the parties and published on the Canadian Legal Information Institute website http://www.canlii.org.