Executive Summary: Key Legal and Evidentiary Issues

• Whether the Human Rights Tribunal unreasonably relied on a deeming rule to treat notice to counsel as conclusive notice to the client despite apparent solicitor error
• The extent to which a party should bear the consequences of its lawyer’s negligence, framed by the “sins of the lawyer should not be visited upon the client” principle
• Adequacy of the Tribunal’s contextual analysis in inferring abandonment from non-response to two emails and proceeding by default
• Proper application of reconsideration criteria, including the “no fault of their own” threshold under the Tribunal’s Rules
• Balancing procedural fairness to the respondent against prejudice to the complainant where an ex parte default hearing has already occurred
• Reasonableness of maintaining default findings that deemed all allegations admitted in the absence of evidence the respondent itself had notice

Facts of the case

The case arises from an employment-related human rights complaint filed by Elechia Barry-Sproule against her former employer, Royal LePage RCR Realty Brokerage. In June 2018, Ms. Barry-Sproule commenced an application before the Human Rights Tribunal of Ontario (HRTO), alleging that she had been discriminated against in her employment contrary to the Ontario Human Rights Code. Royal LePage, represented by lawyer Heather Weir of Ormston List Frawley LLP, filed a formal response to the application on August 17, 2018, and Ms. Barry-Sproule in turn filed a reply on September 12, 2018.

In December 2018, Ms. Weir left her law firm. She advised Royal LePage that her associate, Lindsay Moffatt, would take over carriage of the matter with the assistance of partner John Ormston as needed, and she indicated she would file a notice of change of lawyer with the Tribunal. While opposing counsel was told that Ms. Moffatt was taking over, no notice of change was actually filed. As a result, Ms. Weir remained the lawyer of record at the Tribunal, even though she was no longer acting for Royal LePage.

On April 18, 2019, the Tribunal held a mediation session at which Ms. Moffatt appeared on behalf of Royal LePage, indicating the employer’s ongoing participation in the process. In June 2021, Ms. Moffatt also left Ormston List Frawley LLP. Neither Ms. Barry-Sproule’s counsel nor the Tribunal were informed of this development, and no steps were taken to correct or update the lawyer-of-record information at the Tribunal. Throughout this period, Ms. Weir continued to be shown as solicitor of record despite no longer having carriage of the file.

On September 26, 2022, Royal LePage received an email from the Tribunal with the subject “Opportunity for mediation and status check – response required”, but later that same day the Tribunal advised that this email had been sent in error and asked that it be disregarded. The next day, September 27, 2022, the Tribunal sent another email, this time with a formal “Opportunity for mediation and status check” letter, directing the parties to respond in writing within 30 days, even if they did not wish to participate in mediation. This letter was sent to Ms. Weir’s email address and was never forwarded to Royal LePage.

On November 10, 2022, the Tribunal sent a follow-up “failure to respond to the mediation offer” letter, again to Ms. Weir, warning that if a respondent did not respond by the stated deadline, the HRTO could proceed without further notice to that respondent and could invoke rule 5.5 of its Rules of Procedure. That letter also did not reach Royal LePage itself. Relying on the absence of any response, on September 22, 2023 the Tribunal issued a decision determining that it would proceed without Royal LePage’s participation, deem the employer to have waived rights to notice and participation, deem it to have accepted all the allegations in the application, and schedule a default hearing. Royal LePage was not sent a copy of this default decision.

On April 23, 2024, the Tribunal held a default hearing without any notice to or participation by Royal LePage. On October 21, 2024, it released a default decision awarding Ms. Barry-Sproule $30,000 as compensation for injury to dignity, feelings, and self-respect, plus $34,906.25 in wage loss (less statutory deductions) together with pre- and post-judgment interest. Royal LePage only learned of this outcome when it received a demand letter from Ms. Barry-Sproule’s counsel dated October 31, 2024, seeking payment based on the default decision.

The reconsideration decision before the Tribunal

On November 7, 2024, Royal LePage applied to the HRTO for reconsideration of the default decision. The employer argued that it had no knowledge of its lawyers’ conduct or failures that had resulted in the loss of its rights to notice and participation, and that it should not be bound by those errors. The Tribunal’s reconsideration decision, issued on February 4, 2025, framed the issue largely around its own procedural rules.

The Tribunal relied heavily on Rule 1.22(d) of its Rules, a deeming provision under which a respondent’s counsel is deemed to have received the Tribunal’s communications. It characterized this as a “legal fiction” that cannot be contradicted: if a party has counsel of record and has directed communications to go to that counsel, receipt by counsel is treated as receipt by the party, regardless of what actually occurred in fact. The Tribunal concluded that, because of this deeming rule, Royal LePage could not assert that it had not received the Tribunal’s correspondence; instead, it was bound by the deemed receipt attributed to its solicitor of record.

The Tribunal also referred to Rule 1.21.1, which provides that when a party has a representative, the Tribunal’s documents must be delivered to that representative, and to Rule 26.5(b), which requires a kind of “no fault of their own” threshold for certain forms of reconsideration relief. It held that Royal LePage did not meet this high threshold because the company checked the box on its response form requesting that Tribunal communications be sent to its counsel and had not advised the Tribunal of any change of counsel. In the Tribunal’s view, the respondent bore at least some responsibility for instructing that communications go to its lawyer and for not ensuring that updated contact information was provided when representation changed.

On that basis, the Tribunal refused reconsideration, leaving the default decision and its monetary remedies intact. This refusal effectively meant that the default findings and damages would stand unless overturned on judicial review.

Judicial review in the Divisional Court

Royal LePage applied to the Ontario Divisional Court for judicial review, seeking to set aside both the refusal of reconsideration and the underlying default decision. The case thus came before a panel of the Divisional Court, which approached the matter under the framework of administrative law reasonableness review. The Court confirmed that the applicable standard was reasonableness, consistent with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov and with Ontario appellate authority in the human rights context, which recognizes that HRTO decisions generally attract deference even though the Human Rights Code contains a more stringent “patently unreasonable” standard in its privative clause.

Within that framework, the Divisional Court examined how the Tribunal had reasoned its way to refusing reconsideration. It noted that a key question was when, and to what extent, the negligence or default of a lawyer ought to be visited on the client in terms of procedural rights and outcomes. The Court referred in particular to the long-standing principle articulated by the Ontario Court of Appeal that “the sins of the lawyer should not be visited upon the client”, unless doing otherwise would cause non-compensable prejudice or irretrievably alter the opposing party’s legal position. This principle had previously been applied in cases such as Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd. and reiterated in Graham v. Vandersloot, where the Court of Appeal criticized a refusal to adjourn a trial that effectively punished the client for counsel’s shortcomings.

Key legal and evidentiary issues on review

The central legal issue for the Divisional Court was whether the HRTO’s strict reliance on its deeming rule, without adequate contextual analysis, rendered the reconsideration decision unreasonable. The Tribunal had treated Rule 1.22(d) as conclusively deeming that Royal LePage had notice because its lawyer of record was deemed to have received the communications. It then used that legal fiction to conclude that Royal LePage was at fault, and therefore ineligible for reconsideration relief under the “no fault of their own” standard.

The Court contrasted this approach with the more contextual and fact-sensitive inquiry endorsed in cases like Ramirez v. Rockwell Automation Canada Ltd., another Divisional Court judicial review of an HRTO reconsideration decision. In Ramirez, the Tribunal had dismissed a human rights application on the basis that the applicant did not respond to a single email about the status of related WSIB proceedings and then refused reconsideration by focusing narrowly on whether the email had been sent and delivered to the applicant’s address. Justice Corbett held that the proper inquiry was whether, viewed in context, the failure to respond justified an inference that the applicant had abandoned the proceeding. Because there was a history of diligence and no broader pattern of delay, the inference of abandonment based solely on one unresponded email was found to be unreasonable.

Applying similar reasoning here, the Divisional Court identified multiple contextual factors that the Tribunal ought to have considered but did not meaningfully engage with. These included the fact that Royal LePage had filed a response to the original application, that it had already participated in a Tribunal mediation, that there was a substantial delay between that mediation and the status request, raising the real possibility of a change in counsel, and that there was no evidence Royal LePage itself had any knowledge of the missed correspondence or its lawyers’ inaction. The only basis for finding fault lay in the deeming provision and in the initial instruction that communications be directed to counsel.

The Court’s assessment of fairness and prejudice

The Divisional Court emphasized that, particularly where serious consequences flow from a procedural default—here, a full default on liability and significant monetary awards—tribunals must look beyond a bare technical rule to the overall fairness of the process and the actual conduct of the parties. It accepted that tribunals are owed considerable deference in how they control their own procedures, but held that such deference is not unlimited when procedural rules are applied in a way that produces manifest unfairness.

The Court found that the Tribunal’s reasoning effectively left Royal LePage without any realistic opportunity to participate in the hearing solely because its lawyers failed to respond to two emails, at a time when the individuals named as counsel of record had left or changed roles, and without any evidence of deliberate non-cooperation by the company. It concluded that the failure to respond to those two emails, in light of the earlier participation and the context of representation changes, could not reasonably support an inference that Royal LePage had abandoned its intention to defend the complaint.

The Court also weighed the respective prejudice to both parties. Ms. Barry-Sproule argued that she had been prejudiced by additional delay and by having exposed her trial strategy in an ex parte default hearing. The Court acknowledged this but observed that parties are ordinarily entitled to full disclosure of each other’s cases in any event, and that the mere fact that Royal LePage now knows the particulars of the complainant’s case is not the kind of prejudice that justifies permanently depriving the employer of a hearing. By contrast, the consequences to Royal LePage—being deemed to admit all allegations, being found liable without participation, and suffering reputational harm and a substantial monetary award—were viewed as severe and going well beyond the inconvenience and strategic disadvantage asserted by the complainant.

Outcome of the judicial review and monetary implications

In the result, the Divisional Court held that the HRTO’s reconsideration decision was unreasonable. The Tribunal’s strict application of its deeming rule to attribute fault to Royal LePage, without considering the broader context and without adequately engaging the principle that clients should not be irrevocably penalized for their lawyers’ negligence in the absence of non-compensable prejudice, could not be sustained. The Court granted Royal LePage’s application for judicial review, quashing both the default decision and the reconsideration decision and directing that a new hearing be scheduled before the Tribunal on Ms. Barry-Sproule’s application under the Human Rights Code.

The Court did not substitute its own findings on liability or quantum; rather, it restored the matter to the HRTO to be decided afresh on the merits with proper participation from both sides. It also noted that counsel had undertaken to make submissions on costs for both the judicial review and the earlier Tribunal hearing, and set a further deadline for those submissions, indicating that if none were received it would treat costs as no longer in issue. As of the date of the endorsement, no costs order and no new damages figure had been fixed by the Court.

Accordingly, the successful party in this judicial review is Royal LePage RCR Realty Brokerage. The earlier HRTO default award—$30,000 in general damages and $34,906.25 in lost wages plus interest—has been quashed, and no new damages or costs have been ordered in its place. The total amount presently ordered in favour of the successful party cannot be determined from the decision because the Divisional Court has not made any affirmative monetary award or final costs order, and the underlying merits and potential remedies are left to be decided at the fresh hearing before the Tribunal.