Underlying case claims discrimination, reprisal against university employee
The Ontario Divisional Court has set aside interim and reconsideration decisions of the Human Rights Tribunal of Ontario, except in relation to allegations it had not dismissed, based on its unfair and unreasonable conflation of two hearings.
York University – the respondent in Dosu v. Human Rights Tribunal of Ontario, et al, 2026 ONSC 1918 – employed the applicant in this case.
On Apr. 23, 2019, the applicant filed an HRTO application. She asserted discrimination and reprisal by her employer – through a series of related incidents, several of which occurred in the year before her application began – due to her race, colour, ancestry, ethnic origin, and place of origin, in breach of Ontario’s Human Rights Code, 1990.
The HRTO chose to hold two hearings together. First was a “summary hearing” on whether the applicant’s claim had a reasonable prospect of success, based on the information and documents submitted. The HRTO did not allow the parties to adduce viva voce evidence.
Second was a “preliminary hearing” on whether to dismiss all or part of the applicant’s application based on delay, whether the delay had a good-faith reason, and whether the delay caused substantial prejudice. The HRTO permitted the parties to call viva voce evidence.
In an interim decision, the HRTO determined that the applicant did not timely initiate her complaints, except those concerning her treatment by a third-party investigator retained by York, as the “anchoring incidents” that happened within a year of the application date could not stand alone as discrimination incidents based on the evidence.
Given its dismissal of most of the application due to delay, the HRTO held that it did not need to answer the question in the “summary hearing” of whether the applicant’s claim had a reasonable prospect of success.
The applicant applied for judicial review. She wanted to set aside the HRTO’s Mar. 18, 2025 interim decision and May 16, 2025 reconsideration decision, which had upheld the interim decision. She sought to remit the matter to the HRTO for a hearing before another adjudicator.
The applicant argued that the interim decision improperly included substantive determinations regarding her claim’s merits and that the interim and the reconsideration decisions were procedurally unfair and unreasonable.
The Ontario Divisional Court allowed the application and remitted the matter to the HRTO. The court ordered the university to pay the applicant’s costs of $10,000, including disbursements and taxes.
The Divisional Court addressed the applicant’s submission that the HRTO hearing was procedurally unfair for two reasons.
First, the court rejected the applicant’s argument that the HRTO should have allowed her to rely on documents not disclosed under the timeline ordered. The court saw no procedural unfairness in the HRTO’s exclusion of this evidence.
The court found the HRTO entitled to make procedural orders to ensure smooth hearings, to expect compliance with those orders, and to impose consequences for noncompliance.
Second, the court saw procedural unfairness in the HRTO’s case assessment direction, which advised that the HRTO would limit the delay hearing to the issues of good faith and substantial prejudice.
According to the court, if the applicant had known that this hearing would assess the strength of her timely allegations, she might have chosen to call evidence addressing this issue.
The York University Staff Association (YUSA) and the Black Legal Action Centre (BLAC), which received leave to intervene last November, made submissions on the reasonableness of the HRTO’s decisions. The court considered these submissions to the extent necessary to resolve the issues.
The court ruled that the HRTO’s conflation of the two hearings made them internally incoherent, clouded the reasoning process, and rendered the decisions unintelligible.
The court noted that the HRTO’s reconsideration decision described the reasonable prospect of success of an allegation as a precondition to considering the allegation timely.
However, the court pointed out that the HRTO expressly did not analyze the allegation’s reasonable prospect of success, which was at issue in the “summary hearing.” The court added that the HRTO intermingled the two hearings in its decisions.
