“Seventy-five per cent of final decisions issued by the HRTO in 2023/24 were dismissals for deemed abandonment,” noted Brian Cook, the co-ordinator of Toronto-based Tribunal Watch Ontario, which monitors Ontario’s judicial tribunal system, advocates for adjudicative independence and promotes access to justice.
“And some of what this is about, either by design or by result,” he added in an interview with Law360 Canada, “is getting rid of backlogs without having to do much with them.”
However, Tribunals Ontario spokesperson Veronica Spada challenged the Tribunals Watch figure, stating that 24 per cent of all HRTO applications resolved in the 2024–25 fiscal year were closed due to abandonment. She said an additional 31 per cent of HRTO applications in that period were resolved through alternative dispute resolution methods, including mediation.
In a May 30 judicial review decision in John v. Swedcan Lumican Plastics Inc., 2025 ONSC 3022, Justices Alexander Kurke, Harriet Sachs and Richard Lococo ruled that the HRTO breached procedural fairness in its handling of applicant Peter Paul John’s discrimination complaint against his former employer, Markham, Ont.-based Swedcan Lumican Plastics, by ordering a summary hearing in 2024 — even though another vice-chair had denied a request for one in 2019 and a full merits hearing had already commenced in 2020, where John testified.
“In the circumstances of this application, where the applicant had been granted a merits hearing into an issue of central importance to his working life, and that hearing had commenced, procedural fairness dictated that the merits hearing should have continued to conclusion,” wrote Justice Kurke for the court.
“Procedural fairness,” he added, “requires that an individual litigant have the right to their day in court when that day has been granted to them, even on a claim that may not succeed, and that a decision granting that right may not simply be ignored and silently overruled by another adjudicator at the same level as the adjudicator who made the original decision.”
According to facts detailed in the decision, John, a former customer service manager at the company, alleged that he was required to perform physical labour that aggravated pre-existing injuries, leading to his termination in November 2017 while on a medical leave that had been ordered by his doctor. John claimed that Swedcan and its executives, Desmond and Xandra Kendall, had failed to accommodate his disability and discriminated against him under the Ontario Human Rights Code.
In March 2019, Swedcan and the Kendalls applied to the HRTO for summary judgment, saying they had no knowledge of John’s disability. In March 2020, a merits hearing commenced but was adjourned after one day. The matter proceeded no further until an HRTO case management conference in April 2024, when vice-chair Joseph Tascona ordered the matter to be scheduled for a summary hearing.
On Oct. 31, 2024, Tascona issued reasons in which he concluded that the Kendalls’ names should be struck, and that the application should be dismissed because it had no chance of success. His reasons did not mention that the April 2019 request for a summary hearing had been rejected or that a merits hearing had begun in March 2020.
John applied for judicial review of the decision, arguing that the HRTO’s decision to strike the individual respondents was unreasonable. He also argued that he was denied natural justice when the tribunal reversed its earlier decision to proceed with a merits hearing, that it ignored evidence of discrimination, and that it exhibited a reasonable apprehension of bias.
At the April 29 hearing, counsel for Swedcan and the Kendalls submitted that the HRTO’s decision was reasonable, that the summary hearing process was appropriate, and that the applicant had failed to provide evidence that his treatment by the company contravened the Ontario Human Rights Code. Counsel for the HRTO defended the tribunal’s procedural discretion and decision-making process, arguing that the summary hearing was within its authority and consistent with its rules.
In its decision, the Superior Court panel found no reasonable apprehension of bias and concluded that the HRTO’s decision to strike Desmond and Xandra Kendall as personal respondents did not prejudice a fair resolution and was reasonable because Swedcan had agreed to be vicariously liable for their conduct.
But the HRTO breached procedural fairness by reversing its earlier decision to proceed with a merits hearing, the court ruled. It also found that the tribunal’s dismissal of the application at the summary hearing was unreasonable because the vice-chair failed to adequately engage with significant evidence, including claims that John advised Swedcan staff about his physical disabilities being aggravated, that Desmond made threatening comments about firing him, and the suspicious timing of his termination after going on medical leave.
“In the circumstances of this application, the HRTO decision to proceed with a summary hearing in 2024 was a breach of natural justice,” wrote Justice Kurke. “The applicant is entitled to a merits hearing.”
The court granted the judicial review application, set aside the dismissal of John’s case, and remanded it for a new merits hearing before a different HRTO vice-chair. Costs of $15,000 were awarded to John.
Cook of Tribunals Ontario said the case is unusual, in one respect, because it actually got to a summary hearing.
“Most of these sorts of cases are dismissed with no hearing at all,” he told Law360 Canada, “either because the person has failed to provide the required proof or because they gave up.”
Case backlogs with the HRTO and the Landlord and Tenant Board are still causing inordinate delays, he said, and cases are being dismissed in 2025 that were filed several years ago. Typically, he added, the HRTO will inform the applicant that it intends to dismiss the case, most often on jurisdictional grounds, unless the person can show why it should not be dismissed, typically with a short turn-around time. At that point, people often give up.
If they persist, Cook said, the HRTO wants “proof” of discrimination beyond the applicant’s own evidence of their experience.
“If they can’t produce proof,” he said, “the case is dismissed in the same terms as described in Swedcan, ignoring the fact that most cases of alleged discrimination are determined on circumstantial evidence.”
Toronto lawyer Osborne Barnwell, who served as counsel for John, said the case highlights the HRTO’s efforts to clear what he called an “intractable backlog of complaints” by violating the complainant’s natural justice rights.
“It is scandalous and ought to be condemned,” he said in an email to Law360 Canada.
“While the HRTO has the broad discretion to be masters in their own house, so to speak, by managing the flow of cases accordingly,” he added, “this effort by a vice-chair of the HRTO to overrule another member of the tribunal in the manner demonstrated here is the anthesis of the rule of law.”
Spada of Tribunals Ontario declined to comment on the specific decision, but noted that, as of April 30, 2025, the HRTO had decreased its active caseload to approximately 8,400, a 13 per cent reduction since it peaked in February 2023 at 9,700.
The introduction of the Tribunals Ontario Portal in December 2021, which was intended to streamline processes and improve access, has been associated with technical glitches and inefficiencies. The Ombudsman of Ontario specifically found in a 2023 report that outdated technology and the transition to the new system compounded delays, with technical issues arising during implementation.
Counsel for the respondents Swedcan Lumican Plastics Inc., Desmond Kendall and Xandra Kendall were Kevin L. MacDonald and Brendan MacDonald of Richmond Hill, Ont.-based MacDonald Associates pc. Kevin MacDonald did not respond to an email requesting comment.
Counsel for the respondent, the Human Rights Tribunal of Ontario, was Mindy Noble, who serves as legal counsel for Tribunals Ontario.
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