Practice Direction on Human Rights Issue or Challenge


Practice Directions support the Social Benefits Tribunal (SBT) Rules of Procedure and provide guidance about what the SBT expects of the parties and, in turn, what the parties can expect from the SBT. They assist in understanding the Rules.


SBT has jurisdiction to consider challenges to the Ontario Disability Support Program Act, 1997 and the Ontario Works Act, 1997, under the provisions of the Human Rights Code ("the Code"). (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] S.C.J. No. 14.)

Where a party to an appeal before the Tribunal does not follow the procedure set out in this Practice Direction, that party may not be entitled to participate in the Code challenge, and the SBT may not consider or continue the Code challenge except in unusual or special circumstances, or where the SBT, in its sole discretion, determines otherwise.

Definitions

A "Code challenge" described in this Practice Direction refers to a human rights issue or challenge made to the SBT's legislation raised under the Code in an appeal before the SBT.

The "merits" of the appeal refers to the issue(s) on the appeal that is not related to the Code.

The "Stage 1 hearing" refers to the first part of the hearing of the appeal by the SBT regarding the merits of the appeal.

The "Stage 2 hearing" refers to the second part of the hearing of the appeal by the SBT regarding the Code challenge.

Notice of Human Rights Code Claim Rule 7.13

Where a party intends to raise a Code challenge with respect to the SBT's legislation, the party must file a Notice of Human Rights Code Claim (Form 4) no later than 60 days prior to the hearing of the appeal.

SBT Response

The SBT will write to the party to acknowledge receiving the Notice of Human Rights Code Claim. The SBT's letter may direct the party to provide more information about the claim if the information provided in the Form 4 is incomplete or insufficient to understand the issues in dispute.

The party must provide all the requested information to the SBT in writing within 30 days of receiving the SBT's letter.

A Code challenge must provide the following information:

Sharing Particulars with Parties

Within ten days of receipt of the Notice of Human Rights Code Claim or, when requested, receipt of additional information the SBT will deliver a copy of the Notice and additional information, if any, to all parties to the appeal.

Participation in Code Challenge

A party who intends to participate in the hearing of a Code challenge must advise the SBT in writing within 10 days of receiving a Notice of Human Rights Code claim from the SBT. When a party does not respond this will be understood as a decision not to participate in the Code claim.

At the end of the 10 days the SBT will confirm which parties are participating by letter to all parties.

Any participating party must provide a written response to the information and allegations contained in the Notice and the additional information, if any, within 30 days of receiving the Notice.

The SBT will send a copy of the party's response to the Notice to the parties who are participating. The party making the Code challenge may reply in writing to a response to the Notice within 15 days of receiving it from the SBT. The SBT will deliver any reply to the participating parties.

Pre-Hearing Conference

As a general rule, the SBT will hold a pre-hearing conference to determine the procedure for the hearing of the Code challenge. See the SBT's Practice Direction on Pre-hearing Conferences for more information about this process.

SBT Procedure Regarding the Code Challenge

In most cases the SBT will hear the Code challenge only after it has heard and decided the merits of the appeal. A party who believes it will be most fair, just and expeditious to have the Code issues considered at the same time as the merits of an appeal must raise this issue with the Member during the pre-hearing.

Where the SBT grants the appeal on the merits the appeal will be concluded and it will not be necessary to consider the Code issues.

The merits of the appeal may be disposed of by the SBT in various ways, including:

Where the SBT denies the appeal on the merits after the Stage 1 hearing, the SBT will schedule the Stage 2 hearing to consider the Code challenge.

Where a party concedes on the merits of the appeal the SBT will schedule the Stage 2 hearing to consider the Code challenge.

Nothing in this process restricts the right of a party to ask the SBT to reconsider a decision made at the Stage 1 hearing.

Code Challenge Frivolous and/or Vexatious

The SBT may refuse to hear the Code challenge where it determines that the Code challenge is frivolous and/or vexatious and will advise the party of its determination. The party must confirm whether the appeal on it merits should proceed.

Application for Intervener Status Rule 7.16

Any person or public or private organization seeking status to intervene in an appeal must submit a written request to intervene according to the procedure in Rules 7.16 and 7.17 of the SBT's Rules of Procedure.

A party in receipt of a request to intervene may respond to the Request following the procedure in Rule 7.18.

Upon receipt of the request to intervene, the SBT will advise the requester and all parties of the date, time and format for the hearing of the request.




Effective as of January 1, 2016
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