The Guardians of the Human Rights Tribunal of Ontario

Author: Stephen Flaherty

Abstract

The Human Rights Tribunal of Ontario (“Tribunal”) is in crisis. The problem is structural. While the Tribunal boasts a “simplified dispute resolution” model, its approach to dispute resolution is borrowed from the former Ontario Human Rights Commission (“the former Commission”). Both define mediation as a matter of interests and timing. Both use fact-finding as an extension of Alternative Dispute Resolution (“ADR”). There is a twist, of course. The Tribunal conducts mediation with adjudicators. It intervenes as a neutral third party and its fact-finding process pits self-represented applicants against respondents with counsel. The result is a mirror image of the former Commission. While both systems confront bottlenecks at fact finding, the Tribunal becomes a forum where power relations between parties are managed by themselves. This imbalance of power undermines the potential for settlement and creates a blueprint for an applicant’s alienation. This article suggests that the Tribunal needs to adopt a new approach to ADR, abandoning a mechanical response where the default setting for complex disputes is fact finding. In short, it is argued that the Tribunal must develop interventions where ADR is tailored to an understanding of the dispute at the outset.

Resume

Stephen Flaherty has a BA in philosophy (Queen’s), a Master of Public Administration (Queen’s), an LLB (Windsor) and an LLM in Alternative Dispute Resolution (Osgoode). Stephen has worked in human rights and labour law for over 20 years. He thanks Danette Romard, BHA (TMU), MBA (Queen’s-Cornell), for her tireless editing and assistance with statistical data; Ken Pearce BSC, MIR (Queen’s), for his assistance with data sets; and Professors William E. Conklin (Windsor-retired) and Michelle LeBaron (UBC) for their insights into jurisprudence/human rights law and alternative dispute resolution, respectively.

Recommended citation

Stephen Flaherty, “The Guardians of the Human Rights Tribunal of Ontario” (2025) 13:1 Can J Hum Rts 105, online: <https://cjhr.ca/download/3316/?tmstv=1764605615&v=3317>.