If you lose a case at the Human Rights Tribunal of Ontario (HRTO), you cannot simply “appeal.” You must apply for a Judicial Review at the Divisional Court. This is a highly complex legal process that strictly examines legal errors, with court and lawyer fees typically ranging from $15,000 to $40,000 CAD.
Receiving an unfavourable decision from the Human Rights Tribunal of Ontario (HRTO) can be devastating for both employees and employers. Whether you are an employee in Windsor who felt their discrimination claim was unjustly dismissed, or a business owner in Toronto facing a massive damages award, your immediate reaction is likely a desire to appeal. However, in Ontario’s administrative law system, there is no automatic right to appeal an HRTO decision to a higher court.
Instead, the only legal pathway to challenge a final tribunal decision is through a process called Judicial Review at the Ontario Superior Court of Justice (Divisional Court). A Judicial Review is not a second trial. The judges will not re-weigh the evidence or listen to witnesses again. They strictly look at whether the HRTO adjudicator made a fundamental legal error or ran an unfair hearing. Because the legal threshold for overturning a decision is exceptionally high, self-representation is highly discouraged. Generally, retaining a specialized administrative or employment law firm is mandatory for a chance at success.
Step-by-Step Process for a Judicial Review in Ontario
Taking a matter to the Divisional Court is governed by the strict rules of the Judicial Review Procedure Act. Missing a procedural deadline can result in your application being dismissed with costs.
Step 1: Request a Reconsideration (Optional but Recommended)
Before rushing to court, you have the option to file a Request for Reconsideration directly with the HRTO within 30 days of the decision. You must prove there is new evidence that was previously unavailable or that the decision conflicts with established HRTO jurisprudence. While rarely successful, exhausting this internal step is often looked upon favourably by the courts.
Step 2: File a Notice of Application for Judicial Review
To begin the court process, your lawyer must draft and file a Notice of Application for Judicial Review with the Divisional Court. Although the HRTO legislation does not strictly define a statutory deadline for this, Ontario common law strongly dictates that you should file within 30 days of the final HRTO decision. Delays without a brilliant excuse will be heavily penalized.
Step 3: Prepare the Application Record and Factum
This is the most labor-intensive step. Your legal team must compile the Application Record, which includes all the evidence, exhibits, and transcripts from the original HRTO hearing. Next, your lawyer will draft a “Factum”-a highly structured legal argument outlining exactly how the HRTO adjudicator’s decision was legally unreasonable or procedurally unfair.
Step 4: Serve the Attorney General and All Parties
Administrative law requires you to formally serve your Application Record and Factum to the opposing party, the HRTO itself, and the Ministry of the Attorney General of Ontario. The opposing party will then have an opportunity to draft their own responding Factum defending the original decision.
Step 5: Argue Before a Panel of Three Judges
Judicial Reviews are typically heard by a panel of three judges at the Divisional Court. During the hearing, no witnesses are called. Instead, your lawyer will present oral arguments based on the Factum, answering complex legal questions posed by the judges. The court will then reserve its judgment and issue a written decision months later.
How Much Does a Judicial Review Cost in Ontario?
Pursuing a Judicial Review is a major financial undertaking. As of May 2026, litigants should expect the following costs:
- Court Filing & Perfection Fees: Filing a Notice of Application for Judicial Review at the Divisional Court costs $243 CAD. In addition, you must pay a mandatory fee of $645 CAD to perfect your application, which is required to secure a hearing date before a panel of judges.
- Hearing Transcripts: You must pay a certified court reporter to transcribe the original HRTO hearing, which generally costs between $1,500 and $4,000 CAD depending on the length of the trial.
- Law Firm Fees: Drafting the Factum and arguing before the three-judge panel is highly specialized work, typically costing between $15,000 and $35,000 CAD in legal fees.
- Adverse Cost Awards: If you lose your Judicial Review, the judges will likely order you to pay a portion of the opposing party’s legal fees, adding an extra $5,000 to $15,000 CAD to your total losses.
How Long Does the Process Take?
The timeline for a Judicial Review requires immense patience. While the initial filing must happen quickly (usually within 30 days of the HRTO decision), obtaining transcripts and perfecting the Application Record can take 3 to 6 months. Once perfected, waiting for a hearing date at the Divisional Court in busy jurisdictions like Toronto or Ottawa typically takes 8 to 14 months. After the hearing, the judges may take another 3 to 6 months to release their written decision. Expect the entire process to span 1 to 2 years.
HRTO Hearing vs. Divisional Court Judicial Review
| HRTO Trial (First Instance) | A fact-finding mission. Witnesses testify, and evidence is weighed to determine if discrimination occurred. | A single HRTO Adjudicator. |
| Divisional Court (Judicial Review) | A strict review of the law. No new evidence or witnesses. Focuses only on whether the adjudicator made a fatal legal error. | A panel of three Superior Court Judges. |
Frequently Asked Questions (FAQ)
What is the “Standard of Review”?
In most HRTO cases, the standard of review is “reasonableness.” This means the Divisional Court will not overturn the decision just because they would have decided it differently. They will only intervene if the HRTO’s decision was deeply flawed, illogical, or lacked a rational chain of analysis.
Can I submit new evidence to the Divisional Court?
No. A Judicial Review is strictly based on the evidentiary record that was already presented to the HRTO adjudicator. If you forgot to submit a crucial email or call a witness during your initial tribunal hearing, you generally cannot introduce it at the Divisional Court.
What happens if the judges agree with me?
If you win a Judicial Review, the Divisional Court rarely rewrites the decision or awards damages themselves. Instead, they typically quash (cancel) the original decision and remit the case back to the HRTO to be re-heard by a completely different adjudicator.
Does filing a Judicial Review pause the HRTO order?
Not automatically. If the HRTO ordered you to pay $20,000 to an ex-employee, simply filing for a Judicial Review does not stop that payment obligation. Your lawyer must file a separate motion for a “stay of proceedings” to temporarily pause the payout while the review is pending.
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