The Human Rights Tribunal of Ontario (HRTO) has developed the following approach to requests for reconsideration. The procedure outlined below provides general information only. It is not a rule within the meaning of the HRTO’s Rules of Procedure. The HRTO may vary the approach to reconsideration where appropriate.
Parties may ask the HRTO to reconsider a final decision. The HRTO may also reconsider a decision on its own initiative where it considers it appropriate.
Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.
The rules for reconsideration are found in Rule 26 of the Rules of Procedure. A request for reconsideration will only be granted if the request meets one of the requirements in Rule 26.5.
Examples of situations where the HRTO has refused a request for reconsideration are where:
- the request asks for review of an interim decision which does not finally decide the party’s rights or interests;
- the request repeats arguments the party has made at the hearing or in written submissions;
- a party disagrees with and wishes to challenge a finding of fact, including findings made about the credibility of witnesses;
- a party wishes to raise new arguments that were not made, but could have been made at the hearing or in written submissions;
- a party received notice that an application could be dismissed as abandoned if steps were not taken, but did not follow the Tribunal’s directions by the deadline.
Examples of situations where the HRTO has reconsidered its decision are:
- where a party, through no fault of its own, did not receive notice of a hearing or request for submissions; or
- where exceptional factors exist that outweigh the public interest in the finality of decisions including inconsistencies in the HRTO’s case law.
The party seeking reconsideration of a final decision must make a Request for Reconsideration using Form 20, deliver it to all parties and file it with the HRTO. The Request must include: reasons for the request, the basis upon which the HRTO is asked to grant the request; submissions in support of the request; and the remedy or relief sought (Rule 26.3).
A Request for Reconsideration made more than 30 days after the date of the decision will not be granted unless the HRTO determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay (Rule 26.5.1). A Request for Reconsideration filed more than 30 days after the date of the decision must include all information in support of the request that the reconsideration be accepted late. The HRTO does not grant extensions in advance to file Requests for Reconsideration.
The other parties do not need to respond to the Request unless the HRTO sends a letter or case assessment direction directing them to do so.
Who decides the request?
The Associate Chair, or his or her delegate, reviews all requests for reconsideration and assigns the request to an HRTO adjudicator for decision. In most cases, the request will be assigned to the adjudicator who made the decision which is the subject of the request. This practice has been endorsed by the courts because the original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions.
What procedure is followed?
The HRTO usually does not hold an oral hearing to decide a request for reconsideration, and often dismisses requests without requiring submissions from the other parties if the request does not demonstrate that any of the criteria in Rule 26.5 are met.
The HRTO will issue a decision either dismissing or granting a first request for reconsideration. The HRTO will not consider further requests for reconsideration of the same decision unless there are exceptional circumstances. The HRTO does not have to give reasons for a decision not to consider a subsequent request (Rule 26.7.1).
What happens if the request for reconsideration is granted?
If the reconsideration is granted, the adjudicator will then decide what will happen next. This will depend on the particular situation. It could include a new decision on the issues as part of the reconsideration decision, a re-hearing of the entire application, asking the parties to provide additional evidence or submissions on a particular issue, or providing the parties with the opportunity to make further written submissions on a legal point.
Are there other ways to challenge an HRTO decision?
Decisions of the HRTO can also be challenged through an application for judicial review to the Divisional Court of the Ontario Superior Court. This is a court process governed by the rules of the court: http://www.ontariocourts.ca/scj/divisional-court/
You may wish to seek legal advice before starting an application for judicial review.
The Human Rights Legal Support Centre has prepared a guide to requesting reconsideration at the HRTO. It is available at http://www.hrlsc.on.ca.
January 2008, last amended April 2014