The Human Rights Tribunal of Ontario has rendered countless decisions dismissing applications on the grounds that the issues raised were outside of the Tribunal’s jurisdiction. With these cases being so prevalent and taking up the resources of the Tribunal, perhaps the Tribunal should undergo a rebrand. Maybe this would discourage people from sending inappropriate photographs of themselves to the Tribunal, or as the Tribunal referred it as, “junk mail”. I’m serious – Simon v. Thessalon First Nation, 2024 HRTO 355 (CanLII).
Purpose and Scope of the Tribunal
The HRTO is tasked with adjudicating claims of discrimination and harassment brought under the Human Rights Code. The Code protects people from discrimination based on seventeen grounds: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing), and record of offences (in employment).
The Code prohibits discrimination on these grounds in five social spheres: employment, housing, services, unions and vocational associations, and contracts.
The HRTO’s jurisdiction is limited adjudicating complaints of discrimination on the above-noted grounds, where the alleged discrimination occurred in the above-noted social spheres. Although an individual may experience discrimination in other contexts – perhaps an unfortunate encounter at a bar with another patron – unless the discrimination was based on one of the enumerated grounds and occurred in the context of one of the social spheres, the HRTO will not have jurisdiction to adjudicate the claim.
The Ontario Superior Court has confirmed that although individuals may be treated unfairly, including on the basis of the enumerated grounds of discrimination, for the HRTO to have jurisdiction over a matter, the applicant must establish a link between the unfairness and the enumerated ground. In other words, the applicant bears the onus of establishing that unfairness rose to the level of discrimination, and that the discrimination was founded in one of the enumerated grounds. See: Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (CanLII)
Recent Cases
As noted earlier, there are many cases from the HRTO discussing its jurisdiction. However, a few that were recently released may be of some interest.
In the first case, the applicant was a single mother who was voluntarily working in a part-time capacity at Hydro One. The applicant alleged that once her child began school, she was passed over for a permanent position, based on her family status. Although there appeared to be unfairness based on family status (an enumerated ground) in the course of her employment (one of the applicable social spheres), the HRTO dismissed the matter due to a lack of jurisdiction. The Tribunal reiterated that a mere assertion of adverse treatment based on an enumerated ground is not sufficient to establish jurisdiction. Rather, the applicant must provide a factual basis linking the respondent’s conduct to the Code-enumerated ground. Further, they must show that the conduct was adverse towards them. In short, a bald assertion is simply insufficient without a factual background. See: D’Avilar v. Hydro One Networks Inc., 2024 HRTO 1245 (CanLII)
In the second case, the applicant alleged that she was discriminated against by her employer, Toronto Hydro, on the basis of privacy rights and financial. If you have an eye for detail may notice that privacy rights and financial status are not listed in the enumerated grounds above. You are correct. The HRTO noticed this as well, and reiterated that general allegations of unfairness unrelated to the Code will not fall within its jurisdiction. Again, there must be a factual background establishing not just unfair treatment, but discrimination. Importantly, the Tribunal confirmed that it does not have the jurisdiction to add analogous grounds to the Code; its jurisdiction is restricted to those grounds explicitly set out. In this case, the applicant was attempting to create two new grounds, which were not enumerated. See: Moulton v. Toronto Hydro Electric System Limit, 2024 HRTO 1156 (CanLII)
In the final case, an application was brought against Lakeview Montessori School by an individual who was not attending the school. The facts presented in the application suggested that the allegations were regarding the relationship between the school and the applicant’s family members, rather than the applicant themself. The Tribunal found that the applicant was never a student at the School, and never had a relationship with the School that fell into an enumerated social sphere. As such, the Tribunal did not have jurisdiction, and the matter was dismissed. See: Lemire v. Lakeview Montessori School, 2024 HRTO 1123 (CanLII)
Conclusion
As noted at the outset of article, the HRTO’s jurisdiction is extremely well defined by the Code. It is limited to the adjudication of complaints of discrimination on the basis of seventeen enumerated grounds, in five enumerated social spheres. If an applicant does not plead sufficient facts establishing a relationship with the respondent in the context of an enumerated social sphere, or that their adverse treatment was rooted in discrimination based on an enumerated ground, the Tribunal will dismiss the application.
Watch this space for Ryland McDonald’s upcoming discussion of how a respondent can have an application dismissed, even before it reaches a hearing.
