Summary
The Ontario Divisional Court’s recent decision in Sharpe v. CTS Canadian College, 2026 ONSC 1138, serves as an important reminder that, although administrative tribunals are afforded considerable deference in managing their own proceedings, efforts to promote efficiency cannot come at the expense of procedural fairness.
After more than a decade of litigation before the Human Rights Tribunal of Ontario (the “Tribunal”), the Court set aside the Tribunal’s decision dismissing an employee’s complaint alleging discrimination on the basis of disability. The Court found that, in seeking to expedite the hearing process, the Tribunal compromised the procedural fairness of the hearing.
Procedural Background
The applicant commenced employment with the respondent in late 2014. In 2015, after the applicant’s bipolar disorder began to affect her work, she disclosed her disability to her supervisor. Shortly thereafter, her employment was terminated.
The applicant filed a complaint with the Tribunal in 2015, alleging that her termination and the respondent’s failure to accommodate her disability constituted discrimination under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The respondent denied the allegations, asserting that the applicant was terminated for financial reasons and had not disclosed her disability or requested accommodation before the termination.
A hearing took place before the Tribunal in 2018; however, no decision was issued after the adjudicator who heard the matter left the Tribunal before releasing a decision. In 2024, more than eight years after the proceeding commenced, the Tribunal issued directions for a de novo merits hearing. To move the process forward expeditiously, the Tribunal directed that the merits hearing would start over from the beginning, subject to restrictions on the introduction of new evidence. Specifically, the Tribunal directed that the parties could not rely on documents that had not previously been disclosed or introduce witness statements that had not been properly filed before the original hearing.
Contrary to its earlier directions restricting the introduction of new evidence, the Tribunal permitted the respondent to file a second witness statement from its Chief Executive Officer, Mr. Carvalho. The statement was nearly twice as long as his original witness statement and introduced new evidence, including a new rationale for the applicant’s termination.
The Tribunal did not afford the applicant a similar opportunity to file additional evidence, and it prohibited her from cross-examining Mr. Carvalho on discrepancies between his two witness statements. The Tribunal provided no explanation for these procedural rulings, and its decision did not address the restriction on cross-examination.
The Tribunal ultimately preferred Mr. Carvalho’s evidence over the applicant’s and dismissed the application, finding that Mr. Carvalho was unaware of the applicant’s disability and that her employment had been terminated strictly for financial reasons.
The Judicial Review
On judicial review, the Court applied the factors from the Supreme Court of Canada’s decision in Baker v. Canada to determine whether the Tribunal had satisfied its duty of procedural fairness.Those factors include:
- The nature of the decision being made and the process followed in making it;
- The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
- The importance of the decision to the affected individual(s);
- The legitimate expectations of the person challenging the decision; and
- The choices of procedure made by the decision-maker, particularly where the statute leaves to the decision-maker the ability to choose its own procedure.
In considering the second factor, the Court noted that proceedings before the Tribunal are subject to the procedures set out in section 10(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which entitles parties to conduct cross-examinations of witnesses where reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. The Court emphasized that cross-examination is an essential component of a fair hearing, as it allows a party to test the reliability of evidence and challenge the testimony relied upon by the opposing party.
With respect to the fourth factor, the Court found that, in light of the Tribunal’s earlier directions, the applicant legitimately expected that neither party would be permitted to introduce new witness statements. Once the respondent was permitted to file a second witness statement from Mr. Carvalho, the applicant also legitimately expected that her counsel would be permitted to explore the differences between the two statements through cross-examination. The Court found that restricting this ability prevented the applicant from meaningfully challenging Mr. Carvalho’s credibility on evidence that was central to the Tribunal’s decision.
The Court recognized that the Tribunal was entitled to an element of deference in managing its own proceedings, particularly given its expertise and experience in adjudicating human rights matters. It further acknowledged that by restricting the submission of new evidence and opportunity for cross-examination, the Tribunal was attempting to resolve the matter efficiently in light of the significant delays that had occurred. Nonetheless, the Court held that deference could not be afforded where the Tribunal departed from its own directions in an ad hoc and one-sided manner that prejudiced the applicant’s right to a fair hearing.
Decision
Given the importance of credibility to the Tribunal’s determination, cross-examination was a critical tool for assessing Mr. Carvalho’s evidence. The Court concluded that restricting the applicant’s ability to cross-examine Mr. Carvalho on discrepancies between his statements, combined with the prejudice caused by the late filing of the second witness statement, violated the applicant’s procedural right to a fair hearing.
The judicial review application was therefore granted, and the matter was remitted to the Tribunal for a new merits hearing.
Takeaways
This decision highlights the challenges faced by the Tribunal in managing significant delays and addressing its existing backlog. The Court confirms that measures intended to expedite proceedings, such as restrictions on evidence or cross-examination, will not be permitted to the extent that they undermine a party’s meaningful opportunity to present their case and have their evidence and submissions fairly considered by the decision-maker. As the Tribunal continues to consider ways to address delays, Sharpe serves as a reminder that procedural efficiency must always be balanced with both parties’ fundamental right to a fair hearing.
Need More Information?
For more information or assistance with human rights claims, contact Kathleen Kennedy at kkennedy@filionlaw.com or your regular lawyer at the firm.