Sent via email to john.gross@ontario.ca 
May 7, 2021
Tamara Kronis, Associate Chair
Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor 
Toronto, ON M7A 2A3
Dear Associate Chair Kronis:
Re:	ARCH Disability Law Centre’s Comments on the Human Rights Tribunal of Ontario’s Proposed Changes to Form 1: Application and Rules of Procedure
We write on behalf of ARCH Disability Law Centre (ARCH) to provide the Human Rights Tribunal of Ontario (the Tribunal) feedback on the Tribunal’s draft changes to Form 1: Application, draft changes to the Tribunal’s Rules to support a Digital-First Strategy, draft public hearing docket, and the draft process on how members of the public can arrange to observe a hearing. We provide this feedback in supplement, and not in substitution, of our comments provided to the Tribunal on April 29, 2021.
Prior to turning to our submissions, we provide background on ARCH’s expertise and the perspective of the communities we serve. We also want to briefly make note of some important principles that have informed ARCH’s advocacy before the Tribunal, including ARCH’s advocacy during the development of the direct-access model to the Tribunal.
ARCH’s Perspective and Expertise 
ARCH is a specialty legal clinic dedicated to defending and advancing the equality rights, entitlements, fundamental freedoms and inclusion of low-income persons with disabilities in Ontario. As part of its work, ARCH often assists or represents applicants appearing before the Tribunal who allege discrimination on disability grounds. 
As the only specialty legal clinic dedicated to advancing and defending the rights of persons with disabilities in the province, ARCH is specially poised to bring forward the particular perspective not only of persons with disabilities who have the privilege of legal representation, but also of those who appear before the Tribunal unrepresented. Among its many services, ARCH provides a Summary Advice and Referral (SAR) service whereby it provides summary legal information and advice to persons with disabilities in a number of areas of law, including procedural and substantive human rights law. In this capacity, ARCH lawyers are both informed of the particular accessibility issues raised by our client community, and also advising unrepresented litigants with disabilities as to how to navigate the Tribunal’s process. 
Of specific importance is the fact that changes made to the Tribunal’s Rules, processes, and forms will disproportionately impact persons with disabilities, and especially those who cannot afford to retain legal representation and thus, must represent themselves. As the most recent Tribunals Ontario Annual Report states, more than 53% of the Applications filed with the Tribunal in 2019-2020 were filed alleging discrimination on the ground of disability. It follows that, in making these changes, the Tribunal should strive to make the Rules, and thereby its own process, as universally accessible as possible.
We appreciate that in making these changes the Tribunal aims to make its process as efficient and expeditious as possible while ensuring procedural fairness. Our concerns below, however, stem from the fact that in striving for efficiency, the Tribunal may unintentionally make its procedure less accessible for unrepresented applicants, including unrepresented applicants with disabilities. 
General Comments 
The 2008 legislative amendments to the Ontario Human Rights Code established a “direct access model” to the Tribunal, the most important reason for its creation was to ensure access to justice; a critical element that was lacking within the former gatekeeper model. 
In facilitating access to justice, it has never been a requirement or a prerequisite for applicants to have access to legal advice, nor to have legal representation. Rather, the Tribunal has been alive to the fact that being able to retain counsel or seek legal advice is a privilege not accessible to many persons who have experienced discrimination. And while the Human Rights Legal Support Centre, many legal clinics, and legal organizations provide free legal information, advice and representation these resources are simply not sufficient to meet the demand. 
Accordingly, in proposing or implementing any changes to the Tribunal’s process, including changes to its Rules of Procedure, the Tribunal must ensure that it is not erecting barriers that weaken access to justice. This includes, for example, the expectation or assumption that applicants have ready access to legal advice; have the technical and legal expertise to draft an application like a pleading; know what is a legally relevant piece of information appropriate to include in the application and what is not; and, have the legal acumen to respond to a Notice of Intent to Dismiss in a shortened period of time.
In making changes to its process and procedures, it is imperative that the Tribunal understands and considers the social context in which many persons with disabilities live. Persons with disabilities have lower employment and university graduation rates than able bodied persons. This is often because of societal barriers that prevent persons with disabilities’ from fully accessing and participating in academics and the labour market.Persons with disabilities are also statistically poorer than persons without disabilities and are often unable to afford legal representation. Therefore, they, like many other unrepresented applicants before the Tribunal, may lack the legal expertise necessary to understand the rules of procedure – this may especially be the case for persons with intellectual, mental health, and learning disabilities.
Accordingly, the Tribunal cannot, and should not, in its revision of its process and rules, expect legal and procedural knowledge and understanding from unrepresented applicants, including unrepresented applicants with disabilities. Nor should legal and procedural knowledge be a prerequisite to be able to fully participate in the Tribunal’s process.
The Importance of Applying Principles of Universal Design to the Tribunal’s Process
As the public body that hears and adjudicates complaints of discrimination, the Tribunal holds an important and influential role in that it not only enforces Ontario’s commitment to eradicating discrimination, but it sets an example for other provincial Tribunals as to how they should operate. It follows that it is vital that the Tribunal’s process be accessible to all persons, including persons with disabilities. It would be an insult to the dignity of a person with a disability who has experienced discrimination to find that the very body charged with enforcing the Code contains barriers to what is meant to be a fair and just process.
Universal design is a proactive approach towards ensuring that services are accessible and usable by the broadest possible community, without the need for specialized adaptations, additional modifications or after-the-fact redesign. Universal design addresses not only accessibility for those with physical disabilities, but also for those with vision, communications, hearing, mental health, intellectual, and other disabilities. 
The Supreme Court of Canada has recognized that upfront inclusion benefits all of society, not just persons with disabilities. The fundamental principle affirmed in Meiorin, and reinforced by the Supreme Court in Grismer, is that the concept of equality, particularly in the context of disability, requires that inclusion be considered in the first instance, and not as a belated measure.  By adopting and applying the principles of inclusion and universal design, the Tribunal can serve to inform and ensure that access to justice barriers are not created.
Comments on Specific Proposed Changes
(a)	No Right of Reply Impacts Unrepresented Litigants with Disabilities

At Rule 9, the Revised Rules remove the Right of Reply for applicants, only permitting a Reply to be filed at the discretion of the Tribunal.
Procedural fairness requires that parties have a right to be heard. For many persons with disabilities who are unrepresented, the Reply mechanism at the Tribunal forms an important part of ensuring that they have this right to be heard. Many applicants file without full understanding the legal test that they need to meet and so the Reply allows them to address important points they may have missed in their application. Further, and as a former vice-chair of the Tribunal has previously stated, it would be helpful for the Tribunal to have a Reply in order to fully understand and define the issues.
Over and above this, in many cases, and due to the pervasive power imbalances between applicants and respondents, much of the information that is provided in the Response is unknown to the applicant until they receive the Response, including the reasons for the respondent’s alleged discrimination. The Tribunal itself has found that it must be attentive to the fact that sometimes information about the reasons for the actions taken be a respondent are within the sole knowledge of the respondent. This jurisprudence developed within the Tribunal’s analysis of the test for reasonable prospect of success, but it is our submission that the reasoning equally applies to why a Right of Reply should continue to be codified in the Revised Rules. 
We acknowledge that the Revised Rule allows for occasions where a Reply may be warranted, however, this is problematic as it is solely at the discretion of the Tribunal to decide whether a Reply is required. The Tribunal is not privy to what an Applicant may or may not know prior to receiving the Response, or it may not appreciate the significance of the Response in the context of the Applicant’s perception of events leading to the alleged discrimination. Further, from an administrative standpoint, the exercise of determining whether there are new issues raised can be a highly technical and intensive task – for this to be taken on solely by the Tribunal as a gatekeeper of pleadings will most certainly lead to additional administrative delays and inevitably procedural fairness challenges – all of this causing additional delays before addressing the substance of the complaint.
(b)	Shortened Time Periods will Result in Increased Requests for Accommodation
The Revised Rules significantly shorten timelines for filing certain responses. Of particular note, two shortened timelines are of great concern for unrepresented applicants with disabilities. The first is with respect to filing a Reply, if granted, and the other is with respect to responding to a Notice of Intent to Dismiss (NOID), as contemplated in Rule 13.2. 
These sections are of specific concern as these mechanisms often raise particular and complex legal issues that an unrepresented applicant may not have anticipated, nor have the legal knowledge to readily respond. They may need counsel, or they may need time to seek legal advice in order to prepare their response.  
 Even with the timelines as they exist currently, some persons with disabilities require additional time to process, consider, and respond to a response, a request, or an NOID. This may include, but is not limited to, persons with learning disabilities, persons with mental health disabilities, persons with developmental disabilities, and persons labelled with intellectual disabilities.
In addition to this restriction on time to respond, the timelines set out in the Revised Rules do not allow for sufficient time for applicants with disabilities to seek legal counsel or advice – especially considering the legally complex issues that may be raised in a Reply or a NOID. Persons with disabilities seeking legal counsel often require accommodations to be put in place before meeting with their counsel, this means they need even more time to make these arrangements, acquire the legal advice and/or information, and then be able to respond to the Tribunal.
The Rules state that current timelines can be lengthened in the interest of the fair, just and expeditious resolution of a matter. The Tribunal’s jurisprudence suggests that these types of requests are discretionary and require a case-by-case analysis, including a consideration of the reason for the request, and a determination from the Tribunal. The concern here is that shortening the timelines will lead to more disability-related requests for extensions of time, which will inevitably increase the administrative resources expended by the Tribunal on the issue of timelines alone. This cannot be said to be an expeditious use of resources in a time of already insurmountable delays at the Tribunal.
We return here to the principles of inclusion and universal design. Many persons with disabilities may require more time to fill out their Reply, a response to an NOID, and responses to any other requests. Inclusion and universal design dictate that longer timelines, as opposed to shorter ones, be implemented to ensure that applicants with disabilities are not repeatedly having to request extensions of time. Further, implementing a shorter timeline and shifting the burden on applicants to make requests for accommodations is in direct contrast to the principle of inclusion affirmed by the SCC in Meiorin and Grismer, namely, that inclusion should be considered in the first instance and not as a belated measure.
The effect of reducing these timelines will not better respond to the needs of the people who access the Tribunal’s services, as intended by these revisions. Rather, the effect of reducing these timelines will result in increased barriers for unrepresented litigants with disabilities and a marked increase in time-related accommodation requests, or other requests for extensions. 
(c)	Withdrawal of Application is Highly Prejudicial 
The amendment in Revised Rule 10.5 introduces the concept of a presumptively with-prejudice withdrawal of an application. This is especially concerning for several reasons. 
First, the new amendment presupposes that the withdrawal and subsequent re-filing of an application by the applicant may be done for nefarious or vexatious reasons. This presupposition is difficult to reconcile with the objectives of the Tribunal, including facilitating access to justice and addressing discrimination. 
Many applicants seeking legal redress at the Tribunal file their applications before seeking legal advice. By the same token, many applicants also withdraw applications prior to getting legal advice as to whether they should withdraw and the consequences of taking such a step.  Any amendments to the Rules should not provide opportunity for applicants to be inadvertently penalized because of their lack of knowledge of the Tribunal’s process. The concern here is that the amendment will lead to a chilling effect on applicants and may in effect become an outright denial of access to justice.   
Second, the language used in the Rule 10.5 amendment is problematic. To deem an applicant as engaging in abuse of process for filing an Application that may be similar to one previously withdrawn, is inaccurate and does not align with how Tribunals Ontario defines “abuse of process.” Rule A8.2 states that the Tribunal may making a finding of abuse of process in instances where a person has “persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner.” This is a high threshold and one that cannot be met simply by an applicant filing a similar application to one previously withdrawn.  
Third, it is unclear from the amended Rules the timeline within which 10.5 may be triggered. It is concerning that, as the amendment currently reads, it is unclear whether an applicant who has withdrawn an application, but experiences similar, or further, discriminatory incidents may be precluded from filing another application. This is a clear barrier to access to justice.  
Fourth, it is unclear whether an applicant has the right to make submissions on the Tribunal’s position that their application triggers Rule 10.5. If so, this creates an additional burden for the applicant – not only do they have to file an application detailing the discrimination they have experienced, but must now also convince the Tribunal that they are (a) not abusing the process, and (b) that this Application is substantially different from an earlier application they had filed and then withdrawn. This, again, is a barrier to access to justice. 
ARCH appreciates that the purpose of the amendment is to discourage vexatious litigants from filing, withdrawing, and then filing again substantially similar applications. However, and with respect, the proposed amendment to address the specific problem is overbroad and disproportionate to the issue. The Tribunal has other procedural tools it can use to discourage vexatious litigants, including the ability to control its process and to declare litigants vexatious in appropriate circumstances.
(d)	Requests for Accommodation must not be Copied to Other Parties 

Rule 1.10 of the Revised Rules lists the communications and documents filed with the Tribunal that are not required to be copied to the other parties to the matter. Included in this list, at sub-rule d) is “confidential documents, including medical documents, provided to the Tribunal only in support of a request for accommodation.”
ARCH welcomes the addition in the Revised Rules of the confidentiality protections over these sensitive and private supporting documents. However, it is important that this list includes not only the supporting documentation, but the request for accommodation itself. In particular, the Revised Rules should expressly state that disability-related accommodation requests made by the parties are not required to be copied to the other parties. This would bring the Revised Rules in line with Tribunal Ontario’s direction to parties requesting accommodation, as listed on its Accessibility and Accommodations page. Specifically, it directs parties to “not automatically send your accommodation request to the other parties.”
Accommodation requests are separate processes from that by which parties file an applications. By their very nature, requests for accommodation contain personal and private information about a party that may not be relevant to the matter before the Tribunal. The Tribunal’s process is presumptively public and accordingly, the record is presumptively available for public consumption. Accommodation requests should not be subject to these same standards as they are not part of the adjudicative process. Rather they are the means by which some persons with disabilities access the process on an equal basis as others. In order to ensure the necessary confidentiality safeguards and the integrity of accommodations, it is important that these requests have additional privacy protections.
For this reason, it is of utmost importance that any documents or requests filed with the Tribunal in relation to a disability-related request are addressed in a separate process. This separate request process should also, as much as is procedurally possible, be kept confidential even from opposing parties. Accommodation requests that have no bearing on the substantive issues raised in the complaint, nor the procedural fairness of the complaint, should not be disclosed to the opposing party. One way to ensure the integrity of this process is to clearly state in the Revised Rules that the accommodation request, in and of itself, is a document that need not be copied to the other parties.  
In circumstances where a party’s request for accommodation may engage the procedural rights of opposing parties, it may be appropriate to disclose the substance of the accommodation request to the opposing party and to provide them opportunity to make submissions about the ways in which the procedural accommodation may impact their rights. However, it is important that no supporting documentation is disclosed at this time, as supporting documentation for the accommodation request is not relevant to the issue of whether and how the accommodation would impact the opposing party – this issue is legally and factually distinct.
(e)	Dress Requirements are a Barrier to Access to Justice

Rule 3.7 requires that parties are expected to dress professionally and appropriately for videoconferences. It is ARCH’s submission that this will amount to a barrier to access justice for many applicants. Similar to points that have been made above, the reality for many persons with disabilities and other parties who appear before the Tribunal is that they do not own attire that would meet the standard of “professional”, which is in and of itself an arbitrary and subjective term. 
Not only are dress requirements inherently a barrier for many parties, the inclusion of this requirement in the Rules attracts consequences in the event that the Rule is broken. This compounds and worsens the barrier to access to justice. 
To the extent that the Tribunal wishes to remind parties to respect and take seriously the hearing process, this is a laudable objective. However, there are other, more appropriate methods in which to ensure that this message is delivered, including on the Tribunal’s website and in hearing and mediation notices.
Including a requirement about dress in the Tribunal’s Rules is not rationally connected to the objective the Tribunal is aiming to achieve. Targeting a party’s dress does not achieve the goal of ensuring that parties are respectful and take virtual hearings seriously since there is nothing preventing a party from dressing “appropriately” yet continuing to act in a disrespectful manner towards the Tribunal. 
ARCH recommends that this Rule be removed from the Revised Rules, and to the extent that the Tribunal wishes to remind parties to respect the process, this message should be reformulated and added to other Tribunal communications.
Hearing Docket
ARCH appreciates that the decision in Toronto Star v AG Ontario in 2018 has had an impact on some of the Tribunal’s procedures and processes, including that dockets fall within the umbrella definition of “adjudicative record.” 
By publishing its hearing dockets on its website and making it digitally available, the Tribunal in effect, is broadening the public’s ability to access digital hearing. ARCH appreciates that this, again, is reflective of the decision in Toronto Star as well as the Tribunal’s digital-first strategy whereby the majority of the hearings will now be conducted via platforms like Zoom. 
In adopting this new practice, however, whereby more and more members of the public will know of upcoming hearings via the hearing docket, and will seek to attend these hearings, it is incumbent upon the Tribunal take all necessary steps to ensure that links to hearings that are made available to the public, be shared only with those who have sought to attend a hearing and registered to do so. This gives effect to what the courts used to rely on in the age before the internet or virtual hearings, namely practical obscurity, inherent in accessing hearings in person.
To this end, it is imperative that the Tribunal put in place mechanisms to ensure that hearings are not recorded, published, or broadcast and are protected from unwanted, and potentially traumatizing, Zoom-bombing incidents. This is especially important if the Tribunal is making its hearings more accessible to the general public.
The Revised Rules should reflect this dedication to ensuring its control over its digital hearings by including prohibitions against recording, photographing publishing, or broadcasting a tribunal hearing in any way. It is also advisable to consider how and in what ways the Tribunal can control the dissemination of the links to the hearings beyond the intended recipients. For example, ensuring only those who have requested the link and registered prior to the hearing be allowed into the hearing. This, of course, can be implemented by the use of a “waiting room” on Zoom that allows the Tribunal to retain control over who can be admitted to the hearing and who cannot. This also ensures that members of the public are not entering and exiting digitally throughout the proceeding which would be disruptive to the hearing.
Revised Form 1: Application
(a)	Introductory Pages 
In response to the changes made to the first few pages of the Revised Form 1, ARCH submits that some of this information was helpful to applicants and should be added back into the form.
The original Form 1 had a lot of helpful information on it, especially for first time applicants, unrepresented applicants, and applicants with disabilities. The information included what constituted a limitation period, who could be considered an applicant, where they could get help for their application, and important information about the jurisdiction of the Tribunal. We appreciate that this information is still available to applicants but they must now seek this information out in another document, namely the Applicant’s Guide. However, having the information readily available and in one place on the Applicant form is much more accessible for persons with disabilities, especially persons with learning disabilities, developmental disabilities and persons labelled with intellectual disabilities.
Our recommendation for a better revision is to return all the information from the introductory pages of the existing form, except for the information about filing on behalf of another person, because that information is outlined in detail later in the Revised Form 1.
This leaves a page and half of introductory information prior to the start of the form – only half a page more than the Revised Form. 
We do appreciate the Tribunal making clear to applicants that they should not attach any documents to their applications. As the Tribunal may be aware, applicants who are unrepresented, and who are unfamiliar with the process, sometimes have the tendency to attach as many documents as they feel necessary to “prove” their case. This means that sometimes documents that are of a sensitive nature but which may not necessarily be relevant are attached to the Applicant and passed on to the Respondent. Accordingly, having clear messaging from the Tribunal on this point on the Application form is of assistance to applicants.
(b) Page and Word Limits are an Accessibility Barrier
Throughout the Revised Form 1, the fillable fields indicate either a word limit or a page limit. For unrepresented litigants with disabilities, limiting the number of words or pages creates additional barriers to accessing the Tribunal’s process. Many applicants may not know what is legally relevant or how to plead their case. They are then forced to choose only some parts of their case, potentially leaving out important facts that could prejudice them at a later date. The impact of this is especially problematic and compounded when considered in light of the Revised Rules removing the right of reply.
Disability discrimination often requires considerable context and background to fully appreciate the substantive dispute. Disability discrimination often raises complex, deep-seeded, and systemic or historic issues that are difficult for unrepresented litigants to explain in a concise way. Combined with the other limits imposed by the Tribunal on the applicants, there is real concern that word and page limits will prevent applicants with disabilities from presenting the full scope and context of their claim.
During the oral submission portion of this consultation, it was suggested that the reason for the page limits was because both the Canadian Human Rights Commission and the British Columbia Human Rights Tribunal have adopted this practice. Respectfully, it is ARCH’s submission that the question to be addressed during this consultation is not whether other forums are adopting this process, but whether this is the most accessible process for the Tribunal.
Moreover, the Canadian Human Rights Commission, a body before which ARCH appears frequently, engages in a very different process than the Tribunal. Namely, the Commission engages in comprehensive investigation of complaints, with multiple rounds of written submissions by both parties. Given how different the Commission’s process is from the Tribunal’s, looking to the Commission for guidance on how to structure applications is of limited assistance.
It was also suggested that one of the mitigating factors for limiting the application was that there would be other opportunities for the applicant to flesh out their case and tell their story. Upon reflecting in our recent experiences at the Tribunal, ARCH cannot identify points in the Tribunal’s procedure in which parties would be given this opportunity, especially considering that many parties attend hearings with only surface level “will-say” statements and many Vice-Chairs and Members request that parties do not file written submissions. The reality, in our experience, is that the pleadings are the sole medium for detailing the allegations. 
To the extent that the Tribunal does wish to address the potential for overly lengthy applications, limiting all applicants to 5 pages is not a proportional response. There are other means to address overly lengthy applications, such as the individual, case-by-case approach advocated by Mark Hart, former Vice-Chair of the Tribunal, in his consultation report titled, Strengthening the Commission’s handling of Race-based Cases.
(c) Restricting Font Size is an Accessibility Barrier
In addition to page limits and word limits, the fillable fields of the Revised Form 1 are limited to Arial size 12. For accessibility reasons, some applicants with disabilities may require the Revised Form 1 to be in print larger than size 12. The Revised Form 1 should allow for the fillable fields to be larger, and notwithstanding our comments immediately above with respect to word and page limits, that increased font should result in a relative increase to the space for submissions. Litigants who require large print font should not be penalized.
We return again to the principles of inclusivity and universal design. Applied to the format of the forms, these principles would require that the Tribunal create multiple versions of the forms, including large-print and other formats that are compatible with screen-reader software. For this purpose, ARCH strongly recommends that the Tribunal retain external organizations that specialize and have expertise in electronic document accessibility.
(d) Right to Accommodation must be Separate
The Revised Form 1 includes a reminder on page one that if an applicant requires an accommodation, they may request one by contacting the Tribunal. This reference is located in a bullet following a sentence about how applicants should only file Form 1 once. ARCH recommends that the reference to accommodation ought to be a stand-alone point complete with reference and link to the Tribunal’s Accessibility and Accommodation page and Tribunals Ontario’s Accessibility and Accommodation Policy. These resources contain important information about how to make a request for accommodation, to whom the accommodation request should be made, and when an accommodation request can be made. 
It should also be made clear that the process by which an applicant requests accommodation should be different and separate from the process by which an applicant files an application with the Tribunal. In other words, the reference to accommodation should be a separate point, and not spatially connected to the unrelated concept of filing. This may cause confusion to applicants that accommodation may be limited to the methods of filing.
In order to ensure the integrity of the accommodation process and to ensure that the Tribunal’s process is as accessible as possible, it must be clear that accommodations may be requested for any stage of the process. The Revised Form 1 must be drafted to avoid unintended confusion regarding requests for accommodation.
The necessity of having accommodation information as a separate part of Form 1 is amplified when considering that the Revised Form 1 otherwise is silent with respect to how to request accommodations. This is a notable change from the existing form, where a separate section with the heading “Accommodation Required” can be found at the end of the form. This section of the existing Form 1 expressly advises applicants of their right to accommodations for code-related needs and the contact information for the Tribunal. 
Conclusion 
As the Tribunal makes amendments to its processes and moves towards a digital-first platform, it must engage with the principles of inclusivity and universal design. Keeping in mind the characteristics and realities of those appearing before the Tribunal, including unrepresented litigants with or without disabilities, it is of the utmost importance that amendments do not inadvertently create barriers to access to justice. We thank the Tribunal for holding these consultations and for providing the opportunity and space for comment on potential changes to the Tribunal’s process. 

Sincerely,
ARCH DISABILITY LAW CENTRE

(Original letter has digital signature)	(Original letter has digital signature)
__ __________________	________________
Jessica De Marinis	Mariam Shanouda
Staff Lawyer	Staff Lawyer