The Human Rights Tribunal of Ontario (the HRTO) has developed the following approach to applications on behalf of another person under section 34(5) of the Human Rights Code. The procedure outlined below provides general information only. For more detailed information please refer to Rule 6 of the HRTO's Rules of Procedure and Form 27.
Section 34(5) allows a person or organization to apply on behalf of another person to the HRTO. The person or organization that brings the application on behalf of another person is called the "applicant". The person on whose behalf the application is brought is called the "claimant". The claimant must provide his or her consent to the application being brought. The claimant choses the applicant, who may be either a person or an organization, and provides the applicant with the authority to take all the steps in the human rights process on his or her behalf.
The applicant must complete and file the claimant's signed consent with the HRTO (Form 27). The claimant's consent must specifically relate to the human rights application. The claimant's consent to begin other legal proceedings, such as grievance proceedings under a collective agreement, is not sufficient. See CAW - Canada v. Presteve Foods, 2010 HRTO 796.
In order to consent to an application being brought on his or her behalf, a claimant must have the legal capacity to make that decision. Everyone 18 years of age and over is presumed, unless there is a reason to believe otherwise, to have legal capacity to make decisions, including the decision to file an application. Some persons, however, may not be legally capable of providing their consent for one of two reasons: they are a minor (under 18) or they do not have the mental capacity to make decisions about the issues in the case. In these cases, a litigation guardian must bring the application under section 34(1) of the Code or consent to the application being brought under s. 34(5). For information on bringing an application on behalf of a legally incapable person as his or her litigation guardian please see Rule A10 of the Social Justice Tribunals Ontario Common Rules and the SJTO Practice Direction on Litigation Guardians before Social Justice Tribunals Ontario.
A claimant need not have the capacity to make all decisions in the litigation in order to have the capacity to consent to an application being brought on his or her behalf. The HRTO has found that claimants need only have capacity to make the decision to commence the application, to delegate the power to pursue it to someone else, and to terminate it through a withdrawal. See Kacan v. OPSEU, 2010 HRTO 795.