Mandatory mediation aimed at decreasing backlog of cases – but is it enough?
On April 8, 2025, the Human Rights Tribunal of Ontario (HRTO) announced several changes to its rules of procedure in an attempt to address its significant backlog of cases. Notably, the changes include mandatory mediation for all applications and changes to the discovery and hearing timelines. But the question arising from these changes remains: will it be enough to fix the issues that have plagued the HRTO in recent years?
As of June 1, 2025, the HRTO has implemented mandatory mediation for all new applications. Our review of the HRTO’s internal statistics indicate that nearly 60 per cent of cases have resolved at mediation, which explains the rationale behind the tribunal’s intended push. However, it is important to note that only mediation carried out through the HRTO’s process will satisfy this new requirement.
While more changes may be coming from the tribunal, what we currently know is that in addition to mandatory mediation, the tribunal intends to impose stricter disclosure obligations post-mediation, as well as a significantly more stringent process for requesting extensions for deadlines (such as for filing responses) and adjournments.
What is missing, however, is any indication from the tribunal that changes will also be made to address the significant delays associated with the current process for preliminary requests for orders under proceeding (such as requests to dismiss). Preliminary requests are a critical screening function that is currently going largely unaddressed by the Tribunal.
As many experienced counsel and human resources professionals know, in recent years the backlog of cases at the HRTO has resulted in a nearly unworkable system. Applicants are receiving responses months or years after their submission. Preliminary objections go unanswered for even longer. And full and timely hearings where both sides can put their respective positions forward appear to be a thing of the past.
From an employer’s perspective, these accessibility issues are due in large part to the sheer volume of applications filed with the tribunal, which are often unfounded, frivolous, and designed to leverage a more advantageous monetary settlement. While the tribunal has a screening process, the volume of applications, and what is likely a lack of resources by the tribunal, ultimately results in a stress on the system and a requirement to file a response within strict time limits.
To the extent that the changes may result in the tribunal being even more stringent with response times, a failure to significantly address backlog issues and remove complaints which do not raise legitimate human rights issues may result in a greater burden on employers, without any plan to make the system more responsive and efficient for both complainants and respondents.
What the changes do not contemplate is a possibility to recover costs for frivolous applications. As stated, this means more time, effort, and cost for employers, not to mention the potential prejudice to employers who will be faced with excessive delay in marshalling evidence and witnesses for cases which can be years old.
Consider the case of Zhang v. GC&E Limited – Palace Casino, 2022 AHRC 33, where a lawyer argued before the Alberta Human Rights Commission - which faces many similar challenges as its Ontario counterpart - that his client was directly prejudiced in its ability to respond to the allegations in the vomplaint due to the nine years it took for the matter to reach the hearing stage. Counsel argued that these delays were caused by the tribunal, not the parties, and therefore a dismissal of the complaint was the most appropriate remedy.
Member Teresa Haykowsky agreed that the delays were significant and, in large part, were caused by the tribunal. While the commission ultimately found that the delay had not caused “significant prejudice” to the employer in this case, citing the Supreme Court’s analysis in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, it agreed that the delay was inordinate and the potential impact on witness evidence could have been far more significant.
While it remains to be seen whether Ontario counsel will take a similar approach given the excessive delays currently being experienced at the HRTO, one can only hope that the new changes by the HRTO will prevent the need for such an approach.
While mandatory mediation appears to be a helpful step in the right direction, it has missed one of the most significant screening issues plaguing the tribunal.
Mediation cannot be of any assistance if the parties are still waiting to hear from the tribunal on whether the application has any merit to begin with. Similarly, employers should not be forced to attend a mediation for an application with no merit.
It is refreshing to see that that the HRTO acknowledges there is a significant issue with its backlog and is taking steps to address it. However, without further changes and evolution, the system may fail in its goal in creating a system which not only is fair for all parties, but is perceived to be fair as well.
Lorenzo Lisi is head of the Workplace Law Group at Aird and Berlis in Toronto. Zachary Sippel is an associate in the Workplace Law Group at Aird and Berlis in Toronto.
