A summary hearing may be ordered when it appears there may be no reasonable prospect that the application or a part of the application can succeed. The summary hearing gives the applicant an opportunity to explain the allegations contained in the application. There are a number of reasons why the HRTO may decide to hold a summary hearing. Two of the most common reasons are:
Although the applicant may believe that the conduct of the respondent(s) is connected to a Code ground such as race or disability, it is not clear from the application that there is evidence available to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.
The issue the applicant is raising does not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation
After hearing the applicant’s explanations, the HRTO adjudicator will decide whether the application can continue or whether some or all of it will be dismissed.
These tests were discussed first in Dabic v. Windsor Police Service, 2010 HRTO 1994. All HRTO decisions, including Dabic and others on summary hearings, are available on the Canadian Legal Information Institute website at www.canlii.org.
Requesting a Summary Hearing
At any time after a Response has been filed with the HRTO, a respondent may request the Application be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application will succeed. A respondent must file a complete response before the HRTO will consider a Request for Summary Hearing.
To request a summary hearing, a respondent must deliver and file a Request for Summary Hearing (Form 26) providing detailed submissions about why there is no reasonable prospect that the Application, or part of the Application, will succeed. Full argument in support of the Request must be provided.
The completed Request for Summary Hearing must be delivered with a copy of this Practice Directionto the applicant and any other parties to the Application and filed with the HRTO along with a Statement of Delivery (Form 23).
Summary hearings are meant for an early determination of the issue of no reasonable prospect of success and should be requested as soon as possible. Requests for Summary Hearing filed after a hearing on the merits has been scheduled will rarely be granted.
Responding to a Request for Summary Hearing
An applicant who has received a Request for Summary Hearing (Form 26) may respond to the Request for Summary Hearing by completing a Response to a Request for Order (Form 11), delivering a copy to all parties and filing it with the HRTO, along with a Statement of Delivery (Form 23), not later than 14 days after the Request for Summary Hearing was delivered.
The HRTO will decide whether to grant the Request for Summary Hearing. The HRTO generally will not provide reasons for refusing a Request for Summary Hearing, which will be communicated by the HRTO's Registrar. If the Request is allowed, the HRTO will issue a Case Assessment Direction (CAD) with directions for the parties. A Notice of Summary Hearing will be issued by the Registrar.
The Summary Hearing
A summary hearing will usually be held by teleconference for half a day. The applicant will usually provide his or her arguments first. Oral evidence is rarely permitted.
The HRTO will send the parties a Notice of Summary Hearing telling them the date and time of the hearing. The Notice will indicate if the hearing will take place by teleconference or in person.
If the hearing is by teleconference, the Notice will provide the phone number and instructions for participating in the teleconference. If you experience difficulty connecting to the teleconference, contact the Registrar immediately. Contact information is provided on the Notice of Summary Hearing.
If the summary hearing is held in person, the Notice will give the address of the hearing location.
If the applicant does not attend the summary hearing, the Application will usually be dismissed as abandoned. If a party, other than the applicant, who received a Notice of Summary Hearing does not attend the hearing, the summary hearing may proceed in his or her absence.
The HRTO's Rules about disclosure of documents and witnesses, Rules 16 and 17, do not apply in summary hearings. The CAD will give directions about any documents or other things which are required at the summary hearing.
The HRTO adjudicator will consider the submissions at the summary hearing and materials in the HRTO file and issue a written decision on whether all or part of the Application has no reasonable prospect of success. If the Application is not dismissed entirely, it will proceed in the HRTO process and the decision may set out the next steps in the process.
Other preliminary hearings
The HRTO may also schedule a preliminary hearing to decide other issues. For example, a preliminary hearing might be ordered when:
it is not clear the HRTO has jurisdiction to decide the allegations or
there is a question about whether another proceeding has already appropriately dealt with the substance of the application.
In a preliminary hearing, the HRTO adjudicator will usually hear arguments from both parties. The parties could also be asked to present evidence. The adjudicator will decide whether to dismiss the application or allow it to proceed.