Under the Microscope: Judicial Review of Human Rights Decisions

In 2008, legislative amendments to the Ontario Human Rights Code (“Code”) removed the right of parties to appeal decisions of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) to the courts. With the removal of appeal rights, decisions of the HRTO can now only be revisited by way of a judicial review before the Divisional Court of the Ontario Superior Court of Justice.

Although the 2008 legislative changes intended to narrow the circumstances in which HRTO decisions can be reviewed by the courts, decisions of the HRTO are often perceived as vulnerable to review, compared to other administrative decision-makers.

This paper provides an overview of HRTO cases that have come under review by the Divisional Court and the Ontario Court of Appeal since 2008. Key judicial review cases are surveyed in order to analyze and identify aspects of human rights decision-making that attract judicial intervention.

In addition to canvassing recent judicial review cases, this paper identifies the standard of review that applies to both interim and final decisions of the HRTO, and discusses whether recent commentary from the courts has imposed a greater burden on applicants seeking to establish a prima facie case of discrimination. In conclusion, it is suggested that the jurisprudence in this area is not sufficiently developed to support the conclusion that HRTO decisions are highly vulnerable to review. Nevertheless, as the judicial review of HRTO decisions is typically conducted using the reasonableness standard of review, this necessitates some evaluation by the Court of the Tribunal’s reasoning process to determine if it is intelligible, transparent and justifiable and to determine whether the adjudicator’s conclusions fall within the acceptable range of outcomes, based on the facts and the law.

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