The Human Rights Tribunal of Ontario (the HRTO) has developed the following approach to applications on behalf of another person. The procedure outlined below provides general information only. It is not a rule within the meaning of the HRTO’s Rules of Procedure. The HRTO may vary its approach to applications on behalf of another person where appropriate.
A person may lack legal capacity to file a human rights application on their own behalf for a number of reasons, including mental incapacity, as defined in the Substitute Decisions Act, or because he or she is a minor. A minor is someone who is less than 18 years of age. Persons who are 16 and 17 years old and who have withdrawn from parental control are not minors for the purposes of making an application to the HRTO alleging discrimination in housing.
Section 34(1) Applications
Applications on behalf of another person can be made in two ways under section 34(1) of the Human Rights Code.
Traditionally the HRTO has permitted the parent or legal guardian of a minor to participate as a Next Friend. A Next Friend can also include a person with legal custody, a court appointed guardian of the minor's property under the provisions of the Children's Law Reform Act, or the Children's Lawyer.
A section 34(1) application may also be filed by a Litigation Guardian or a Substitute Decision-Maker on behalf of a person who lacks legal capacity to apply on their own behalf. A Litigation Guardian may be appointed by the Superior Court of Justice. A Substitute Decision-Maker is someone with a continuing power of attorney, or is a court-appointed or statutory guardian of property under the Substitute Decisions Act.
Section 34(5) Applications
Applications on behalf of another person may be filed under section 34(5) of the Human Rights Code if the other person would be permitted to bring their own Application under the Code and consents to the application.
Role and Responsibilities Before the HRTO
Where an application is brought on behalf of another person, the Next Friend, Litigation Guardian or Substitute Decision-Maker under section 34(1) or the Applicant under section 34(5) is expected to take the steps required of any Applicant or necessary to the proceeding before the HRTO.
July 2008, last amended March 2010