What to Include in a Human Rights ResponseTeam
In Ontario, the Human Rights Code (the “Code”) protects people from discrimination and harassment in social areas such as housing, employment, contracts, and the provision of goods and services.
The prohibited grounds of discrimination and harassment under the Code include but are not limited to age, disability, sex, citizenship, race, place of origin, and creed. The Code also protects against retaliation for seeking to enforce one’s rights under the Code.
A person alleging a Human Rights violation can file a Human Rights Application (“Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”).
If you were named as a respondent in an Application, you must address the allegations against you by filing Human Rights Response with the Tribunal (“Response”). Failing to do so by the due date the Tribunal sets can result in liability for damages and negative exposure for you or your business.
How does the Human Rights legal process work? What should you include in a Response? What happens if you don’t file a Human Rights Response? Should you hire a lawyer to help you navigate the Human Rights legal process? This article will answer these questions and explain how a Human Rights lawyer can help.
The Ontario Human Rights Legal Process
In Ontario, anyone can file an Application against another person or organization for violating their rights under the Code. The named respondents to an Application must then file a Response to defend against the Application’s allegations.
After a Response is filed and the Tribunal delivers it to the appropriate parties, the applicant can then file an additional Human Rights Reply (“Reply”) to address any new facts or legal issues raised in the Response.
After the Application, Response, and Reply are properly filed with the Tribunal, it will set date for mediation by proposing dates to the parties. Mediation is a confidential process where a third party tries to help the parties resolve their legal case before moving further in the legal process. They are typically done remotely by teleconference or video conference platforms like Zoom. Mediators are there to help the parties come to a resolution, not to make any binding legal decisions.
If the parties do not settle at mediation, the case proceeds to the documentary disclosure stage. As part of this stage, the parties exchange relevant documents for the Human Rights claim. The Tribunal may then arrange a conference to discuss any preliminary issues before a hearing.
Once the matter goes to a hearing, both the applicant and any respondents would make their case with evidence, witnesses, and legal arguments. The Tribunal would then render a binding decision, subject to any reconsideration proceedings by any of the parties. The Tribunal does not generally award legal costs to any party, even if they win their case.
While the Tribunal is not a court in the traditional sense, it is an adjudicative body with legally binding decisions. If you have a decision made against you or your business by the Tribunal, it can be enforced by an applicant just like any other legal order in Ontario. Many of the Tribunal’s final decisions are also published in legal databases, including the publicly accessible CanLii.
A Response needs to properly address the allegations against you and your business, otherwise, you could be subject to a legal order for significant damages and non-monetary remedies.
What to Include in a Human Rights Response
A Response is a formal legal document filed with the Tribunal to address the allegations in an Application. It is effectively your version of the story and legal defense to an Application.
You should file the Response within 35 days after the Tribunal sends a copy of the Application to you or your business, or as otherwise directed by the Tribunal. You must do so by using Form 2 from the Tribunal’s website. The Tribunal has detailed guidelines published on its website explaining what you need to do in response to receiving an Application.
There are many ways to defend against an Application in a Response. However, what defenses are available will depend on your unique facts and circumstances. In general, your Response should include the following:
- A detailed statement of the relevant facts;
- Any procedural legal defenses;
- Reasons why the Application should not succeed; and
- Requests to the Tribunal.
What Facts to Include in a Response
The facts are the heart of any Human Rights case. The Application will explain the applicant’s version of the facts and circumstances. A Response should tell your side of the story, and provide relevant details like who, what, when, where, how and sometimes why.
Being specific about dates, names, and the surrounding circumstances helps the Tribunal understand your case and make its decision. Facts work together with your legal submissions to make the best possible case, so how the facts are expressed in a Response is important as well.
What Procedural Legal Defences to Argue in a Response
There are a variety of procedural defenses you could argue in your Response to get the Application dismissed early in the legal process. Some grounds for early dismissal by the Tribunal include:
- The applicant signed a release concerning the same matter;
- The applicant raised issues in the Application falling within federal jurisdiction;
- The applicant failed to file the Application within 1 year from the last alleged violation of the Code;
- The applicant commenced another proceeding based on the same facts, requesting the same or similar remedies for Human Rights violations; or
- The Code otherwise does not apply to the applicant’s circumstances.
Some of these grounds require additional work and technical legal arguments. However, succeeding on these kinds of arguments can prevent a Human Rights claim from continuing. As such arguments become more complex, you should discuss your case with a Human Rights lawyer.
Explain Your Reasons Why the Applicant Should Not Succeed
In your response, you must respond fully to the allegations in the Application and not just deny them. You should explain how your actions were not related to the applicant’s protected grounds under the Code.
It is important to directly respond to the Application’s legal submissions in your responding legal arguments. For example, if someone alleges discrimination based on a disability and your failure to accommodate them, you should argue you did everything you could to accommodate their disability to the point of undue hardship.
A common argument available to respondents is the applicant’s case is not actually related to the Code and is just a case of unfairness. The Tribunal does not adjudicate general issues of unfairness. A respondent would argue in this situation the Application has no “reasonable prospect of success”, even if all the facts in the Application were assumed to be true, based on no actual connection between the applicant’s facts and any violations of the Code.
The arguments in a Response should also address what an applicant is asking for in remedy. For example, arguments as to why the applicant should not receive the number of damages request, or why their requested orders should not be granty. These kinds of arguments can also be technical and require more detailed legal submissions depending on the circumstances.
Request Orders from the Tribunal If Necessary
In some cases, you may request specific procedural orders from the Tribunal in the Response, or at any time before the hearing. There are a variety of orders you can request from the Tribunal at this stage, including the removal of a personal respondent or asking for additional details so you can properly defend yourself against the applicant’s allegations.
You can make all your submissions for a requested order in the Response. However, you would need to file all the other required forms in addition to Form 2. This usually includes Forms 10 and 23, available on the Tribunal’s website. The Tribunal also has published practice directions about what orders you can request, and what such orders specifically require.
A common request made by respondents is for the Tribunal to grant a summary hearing to dismiss the Application earlier in the process.
If the summary hearing is granty, the Tribunal will hear the parties’ submissions on whether the Application can be dismiss early or not. The Tribunal will then render a decision either dismissing the Application or allowing it to continue. The Tribunal may also require a hearing to hear submissions for other requested orders before granting them.
What Happens If You Don’t File a Response
If you do not file a Response on time or at all, you risk the Application proceeding through the legal process without further notice to you or without allowing you to further participate. The Tribunal may exercise its authority to allow the legal process to continue without your involvement after providing you several warnings to file your Response by a given deadline.
In such a case, all the Application’s allegations against you may be presume true without a Response to deny them. Further, the Tribunal may grant an applicant everything they are asking for. You will not avoid the legal consequences and legal liability from a Human Rights proceeding by ignoring it.
How a Human Rights Lawyer Can Help
While you can represent yourself as a respondent to an Application, the legal process can become complex and technical. Where you might save some cost in defending against an Application without a lawyer, such a decision could hurt your case and make you liable for damages and negative publicity.
A Human Rights lawyer has the knowledge and expertise to guide you through the Tribunal’s legal process. They can help you with your Response and your case in the following ways:
- Explain the steps of defending against the Application;
- Help determine the best strategy and next steps for your Response;
- Assist with drafting and filing your Response to minimize your legal risks;
- Advocate for you and represent you throughout the Tribunal’s legal process; and
- Take care of the technical and specialized details for your case so you do not have to.
You can avoid the headache of defending Human Rights litigation by appointing a chief legal officer (CLO) or general counsel for your company. A CLO is in charge a company’s legal department and usually reports to the chief executive officer. They work with the company’s in-house legal team to provide specialized legal services, such as advising on the organization’s legal and regulatory responsibilities.
A CLO’s job description includes helping a company’s board of directors and senior management deal with pressing human rights and legal issues such as workplace violence, sexual harassment, and accommodating employees, among other things.
A CLO can help draft and manage accommodation requests and disability policies. They can review an employee’s functional disabilities form and advise you on their accommodation needs. A CLO can also help you minimize Human Rights claims by ensuring your workplace policies and practices comply with your Human Rights obligations.
A Response to an Application should include a clear statement of relevant facts, put forward any procedural defenses, explain why the applicant should not succeed, and any requests for orders to the Tribunal.
Failure to file a Response to an Application can have serious legal consequences.. The Tribunal may decide the Application in your absence and hold you liable for the applicant’s damages and remedies.
A Human Rights lawyer can point out the shortcomings in the applicant’s case and help you raise all possible defenses. They have the knowledge and skill to advocate on your behalf before the Tribunal. A Human Rights lawyer’s help can be the difference between the Tribunal dismissing an Application early, and legal liability for damages that can go beyond tens of thousands of dollars.
If you are a respondent to a Human Rights Application and need help preparing your Response, our Human Rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.