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Practice Direction on Requests to Expedite an Application and Requests for an Interim Remedy

(Note: The information in this document relating to Requests to Expedite and Requests for an Interim Remedy applies to new applications filed under section 34 or 35 of Part IV of the Ontario Human Rights Code.)

This document provides general information about Requests to Expedite and Requests for an Interim Remedy before the Human Rights Tribunal of Ontario (the HRTO). It is not a rule within the meaning of the HRTO’s Rules of Procedure. The HRTO may vary the approach to such requests where appropriate.

Please also refer to the Rules of Procedure for Applications under the Human Rights Code Part IV on Expedited Proceedings (Rule 21) and Interim Remedies (Rule 23).

Important information about Expedited Proceedings

The HRTO’s Rules allow an applicant to request that their application be dealt with in an expedited manner. However, the HRTO will only expedite an application and give it priority over other applications in exceptional circumstances.

In its decisions, the HRTO has refused to grant requests to expedite unless the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the HRTO’s regular process (Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 (CanLII)) or where refusal to expedite will render the remedy for the alleged human rights breach moot or unavailable (Ebrahimi v. Durham District School Board, 2009 HRTO 1062 (CanLII)).

Except in the rarest of circumstances and without a compelling explanation, an applicant who has not filed the application promptly after identifying the alleged human rights breach will not be given the priority for HRTO resources of an expedited proceeding (Kwan v. Hospital for Sick Children, 2009 HRTO 621 (CanLII)).

The HRTO has held that financial pressures, emotional and psychological stress are generally not the type of factors that meet the high threshold for expediting an application. As well, general, vague or speculative assertions about the harm that may result if an application is not expedited may not be sufficient to establish that an application is truly urgent and should be expedited.

What is an Expedited Proceeding?

If the HRTO decides to order an expedited proceeding, it will determine what changes are necessary to its processes for that particular case. Changes may include abridgement of response, reply, and disclosure timelines, where the parties consent to mediate, scheduling rapid mediation dates, and/or setting early hearing dates. The HRTO may also exercise its powers under the Code and Rule 1.7 to direct the hearing process to ensure a particularly expeditious resolution. The HRTO reviews requests to expedite and, in patently urgent circumstances, may abridge the times for filing the Response to Request to Expedite (Form 15).

Requesting an Expedited Proceeding

An applicant who has determined that it is appropriate to request an expedited proceeding must complete a Form 14 (Request to Expedite) and file it with the HRTO along with their Application (Form 1).

A Request to Expedite must:

  • Describe in detail the urgent and exceptional circumstances that may affect the fair and just resolution of the merits of the application if the application proceeds in accordance with the Tribunal’s regular process. General, vague or speculative statements will not assist the HRTO in considering the Request.
  • Describe the harm that would result if the Request is denied. The Request should provide as much detail as possible to explain the harm that will result from the application being processed according to the usual timelines.
  • Explain why the application should be given priority for HRTO resources over other matters, for example, why the applicant’s circumstances are more urgent than those described in many other applications the HRTO receives.
  • Set out a detailed description of the requested changes to the HRTO’s normal process, including dates or timeframes where applicable.

If medical circumstances are relied on in support of the request, evidence in the form of medical documentation from a registered medical practitioner will generally be required.

A Request to Expedite must also include one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the applicant relies in support of the Request to Expedite. For more information on declarations, see section “What is a Declaration?” below.

The HRTO will review the Request to Expedite and may direct the respondent(s) to deliver to the other parties and file a Response to Request to Expedite (Form 15) or may deny the Request to Expedite. Unless otherwise directed by the HRTO, respondent(s) have seven (7) days to deliver and file (along with a Statement of Delivery (Form 23)) their Response to Request to Expedite (Form 15).

If the HRTO directs a Response to Request to Expedite, it will review the Request and the Response and determine whether to order an expedited proceeding or to deny the Request.

Where the Request to Expedite is denied, the HRTO does not have to give reasons.

Important Information about Interim Remedies

The HRTO’s Rules state that it may grant an interim remedy, before a full hearing of the application has taken place, where it is satisfied that:

  1. the application appears to have merit;
  2. the balance of harm or convenience favours granting the interim remedy requested; and
  3. it is just and appropriate in the circumstances to do so.

Granting an interim remedy is an extraordinary step, in which a respondent is required to take or to not take certain actions prior to a hearing on the merits of the application and before any violation of the Code has been proven.

The Tribunal has held that a party seeking an interim remedy has a “significant onus” or burden to demonstrate that the request meets the elements of the Rule. It has stated that the focus of the analysis is on whether the interim remedy is “necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found” (TA v. 60 Montclair, 2009 HRTO 369 (CanLII)).

Requesting an Interim Remedy

An applicant who has determined that it is appropriate to request an interim remedy must complete a Form 16 (Request for Interim Remedy) and file it with the HRTO. If the Request is made at the same time as the application is filed, it does not need to be delivered to the other parties but can simply filed with the HRTO along with the application (Form 1). If the Request is made at a later stage of the proceeding (i.e. after the applicant has received confirmation that the application has been delivered to the respondent(s)), it must be delivered to the other parties and filed with the Tribunal along with a Statement of Delivery (Form 23).

An applicant must provide a proper evidentiary and legal foundation for the Tribunal to consider a Request for Interim Remedy.

Therefore, a Request for an Interim Remedy must also include one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the applicant relies in support of the Request for Interim Remedy. For more information on declarations, see section “What is a Declaration?” below.

Unless otherwise directed by the HRTO, the respondent(s) has seven (7) days to deliver and file (along with a Statement of Delivery (Form 23)) their Response to Request for Interim Remedy (Form 17).

A Response to a Request for an Interim Remedy must also include one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the respondent relies in support of the Request for Interim Remedy. For more information on declarations, see section “What is a Declaration?” below.

What is a Declaration?

A Request to Expedite an application (Form 14), a Request for Interim Remedy (Form 16) and a Response to a Request for Interim Remedy (Form 17) all require one or more declarations from persons with first-hand knowledge detailing all of the facts upon which the party relies in support of the request or the response to the request. This is the evidence that will be considered by the Tribunal when deciding whether to expedite the application or to grant an interim remedy.

A declaration must be signed by the person who is making the declaration and should only contain facts that are based on direct, first-hand knowledge. The declaration should be prepared with the intention of being submitted as evidence to the Tribunal in support of the request or response being filed. Relevant documents should be attached to the declaration, and the declaration should explain how the person making the declaration has first hand knowledge of each document and its contents. This includes medical and other third party evidence.

Only information that is contained in the declaration will be considered as evidence when the Tribunal considers a request for an expedited proceeding or an interim remedy. Information in the application itself, or submissions on the Form 14, Form 16 or Form 17 are not proper evidence that can be considered by the HRTO.

 

July 2010