CITATION: Dosu v. Human Rights Tribunal of Ontario, et al 2026 ONSC 1918
DIVISIONAL COURT FILE NO.: DC-25-00000498-00JR
DATE: 20260421
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Schreck and Brownstone JJ.
BETWEEN:
LYDIA DOSU
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO and YORK UNIVERISTY
Respondents
Ron Franklin, for the Applicant
Adam Goldenberg and Adam H. Kanji, for the Respondent, York University
Adrienne Lei and Virginia Duarte Walsh, for the Intervener, York University Staff Association
Selwyn Pieters and Oluwatosin Zainab Adewusi, for the Intervener, Black Legal Action Centre
Sabrina Fiacco, for the Human Rights Tribunal of Ontario
HEARD at Toronto: February 2, 2026
REASONS FOR DECISION
L. Brownstone J.
[1] In this application for judicial review the applicant, Lydia Dosu, asks the court to set aside a portion of an interim decision of the Human Rights Tribunal of Ontario dated March 18, 2025, and the reconsideration decision dated May 16, 2025 (together, “the HRTO decisions”).
[2] Ms. Dosu filed her HRTO application on April 23, 2019. The application alleged that she was subject to discrimination and reprisal by her employer, the respondent York University, because of her race, colour, ancestry, ethnic origin, and place of origin, contrary to the Human Rights Code, R.S.O. 1990, c. H.19.
[3] Under the Code, applications to the HRTO must be brought within one year of the incident, or of the last in a series of incidents, of alleged infringement. Ms. Dosu claimed that York’s discrimination and reprisal consisted of a series of related incidents, several of which occurred within the year preceding the commencement of her application.
[4] The HRTO directed that two preliminary hearings be held together. One was a “summary hearing” at which no viva voce evidence was permitted to be adduced. The question to be answered at the summary hearing was whether there was a reasonable prospect of success in a hearing of the allegations, based on the information and documents submitted. The second hearing was a “preliminary hearing” at which the HRTO would determine whether to dismiss all or part of Ms. Dosu’s application for delay. The case management direction specified that this hearing would determine whether there was a good-faith reason for the delay and whether the delay caused substantial prejudice. Viva voce evidence could be called within this hearing.
[5] The interim decision resulted from those two hearings. It found that Ms. Dosu’s complaints, other than those relating to her treatment by a third-party investigator obtained by York, were out of time. The basis for this finding was that the “anchoring incidents” that occurred within one year of the application date could not stand alone as incidents of discrimination on the basis of the evidence. The interim decision held that, given its decision to dismiss most of the application on the basis of delay, it did not need to deal with the “summary hearing” question of whether Ms. Dosu’s claim had a reasonable prospect of success.
[6] In this court, Ms. Dosu submits that the interim decision, while claiming it was made on the basis of delay, improperly made substantive determinations about the merits of her claim. She submits that the interim decision and the reconsideration decision that upheld it were reached in a manner that was procedurally unfair. She also submits the decisions are unreasonable. Ms. Dosu asks the court to set the HRTO decisions aside and remit the matter to the HRTO for a hearing before a different adjudicator.
[7] I agree that the HRTO unfairly and unreasonably conflated the two hearings. For the reasons that follow, I would allow Ms. Dosu’s application and remit the matter to the HRTO.
Background
i) The application
[8] Ms. Dosu identifies as a Black woman of West African ancestry/descent.
[9] In her application submitted in 2019, Ms. Dosu noted that she was employed by York as a Departmental Secretary in the Language Training Centre for studies in French at Glendon College, and that she was represented by the York University Staff Association (YUSA). Ms. Dosu had worked for York since 1998, and at the Centre since 2014.
[10] Ms. Dosu submitted that York’s discrimination and reprisal consisted of a series of incidents, the earliest of which was in about 2015. Ms. Dosu describes a significant number of incidents starting in 2017 that included failing to give her meaningful work, subjecting her to public derogatory comments about her work, and excluding and isolating her in the workplace. In 2017, Ms. Dosu approached YUSA who requested that York include her in an investigation into race-based discrimination at Glendon College that was already underway. Ms. Dosu described that after she started participating in the investigation, the efforts to exclude her from her work increased and continued into 2018. On March 27, 2018, Ms. Dosu wrote a second Code-based complaint to York. There followed three incidents that occurred within the year preceding the commencement of her application. Ms. Dosu submits that these included removing her from her position, subjecting her to discriminatory statements by the investigator, and permitting the person who replaced her to use a title she had been prohibited from using. Those incidents will be discussed below.
[11] Ms. Dosu described that by February 2019, having seen no progress with York’s investigation, she lost faith in York’s intention to take her complaints seriously and investigate her allegations in a timely way. She approached the investigator directly about the comments he had made to her but received no satisfactory explanation.
[12] On April 22, 2019, Ms. Dosu wrote to York and expressed her concerns about the investigation. The next day, she filed her application with the HRTO.
ii) The case assessment direction
[13] On October 4, 2024, the HRTO issued a case assessment direction. As this direction is significant, I reproduce the relevant portions in some detail here.
[2] The Tribunal has reviewed this Application and has decided to hold a combined summary and preliminary hearing to decide the following issues:
whether the Tribunal should dismiss all or part of this Application because there is no reasonable prospect that it will succeed. This part of the hearing is called a "summary hearing". …
whether to dismiss all or part of this Application because of delay. This part of the hearing is called a "preliminary hearing."
What is a summary hearing?
[8] Where it appears that there is no reasonable prospect that all or part of an application will succeed, the Tribunal may determine it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives an applicant an opportunity to more fully explain the allegations contained in the application. It also provides the Tribunal with the opportunity to hear arguments from the parties before it makes its decision. In some cases, such as this one, the Tribunal combines a summary hearing with a preliminary hearing dealing with other issues.
[9] No witnesses are called to testify at a summary hearing and the parties are not expected to submit documents for the summary hearing. Instead, the Tribunal will make its decision based on the materials already filed by the parties and their submissions in the summary hearing.
Summary Hearing Issues to be addressed
[11] It is not clear the applicant has any evidence to establish a link between their ancestry, colour, ethnic origin, place of origin, and race and what the respondent is alleged to have done. The applicant will be expected to explain what evidence they expect to be able to present at a merits hearing to support a link between these grounds and the allegations raised in the Application.
ISSUE 2: Delay
[13] Section 34 of the Code requires an application to be filed within one year of the incident, or the last in a series of incidents, to which the application relates. If the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay it may be allowed to proceed. The Tribunal will ask the parties to make submissions on whether the Application should be dismissed for delay.
NEXT STEPS AND DIRECTIONS
Additional Documentation, witnesses, and case law
[15] If the parties do wish to refer to any additional documents at the hearing, they must deliver them to the Tribunal and each other at least 5 weeks (35 days) before the summary hearing. [emphasis in original]
[16] No witnesses are called to testify for the summary hearing portion of this hearing. However, the parties will be permitted to call witnesses in relation to the delay issue listed above.
iii) The hearing
[14] The combined summary and preliminary hearing took place by videoconference on January 8, 2025. The summary hearing was heard first. Ms. Dosu had delivered documents on which she sought to rely at the summary hearing. Some of her documents were delivered after the deadline established in the case assessment direction and were not permitted to be filed.
[15] The preliminary hearing to address the delay issue followed. Ms. Dosu did not call any witnesses.
The interim decision
[16] The interim decision was released on March 18, 2025. In its overview, the interim decision stated: “[T]he Application is dismissed in part due to delay. As a result, I need not consider the summary hearing issue.”
[17] The decision began by referring to the relevant portions of s. 34 of the Code, which provide as follows:
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
[18] The interim decision noted that Ms. Dosu claimed that York’s actions towards her consisted of a series of incidents, some of which occurred more than one year before she started her application, and three incidents that fell within the one-year limitation period, which the HRTO refers to as the “timely” incidents.
[19] The interim decision referred to two principles that apply when determining whether the “series of incidents” provision in s. 34(1)(b) is available to a party. First, the incident that is within the one-year limitation period must be able to stand on its own as an independent incident of discrimination. Second, the incidents must be thematically related and must occur in close temporal order.
[20] The interim decision noted that Ms. Dosu had referred to the following three incidents that occurred within one year before she started her application:
(a) On April 23, 2018, Ms. Dosu was “unceremoniously removed” from her duties as reprisal for raising her Code-based concerns.
(b) On July 25 and July 26, 2018, when Ms. Dosu met with the independent third-party investigator engaged by York, the investigator made discriminatory statements; and
(c) In September 2018, Ms. Dosu noticed that the person who had taken over her duties used the email signature “administrative assistant”, which she asserts is a more respected title than “department secretary”. Ms. Dosu states that she was expressly prohibited from calling herself an administrative assistant and was required to use the “department secretary” title since 2015.
[21] The interim decision concluded that the first incident was not adverse treatment and therefore could not stand on its own as an independent incident of discrimination or reprisal. The HRTO stated: “No evidence was led, or factual basis provided, that would support an inference that there was an intention on the part of the respondent to punish or retaliate against the applicant for having claimed a right under the Code.”
[22] The interim decision concluded that the second incident was not thematically linked to the discriminatory acts alleged to have occurred before April 23, 2018, and therefore could not anchor those acts.
[23] With respect to the third incident, the interim decision held that it was not self-evident how any of the titles carry more respect than any other titles, and that the applicant provided no information about how titles are determined at York.
[24] Further, the interim decision found that the temporal gap between a 2015 incident regarding the use of a title in an email signature was too great to have the 2018 incident constitute one of a series of steps. Therefore, the September 2018 incident did not stand as an independent incident of discrimination and could not anchor earlier incidents.
[25] Having found the application was largely untimely under s. 34(1), the HRTO went on to consider whether it was satisfied that the delay was incurred in good faith in accordance with s. 34(2). The HRTO noted that there was a high onus on the applicant to provide a reasonable explanation for the delay. The HRTO determined, without discussion, that the applicant did not advance a good faith explanation for the delay, so that it was not necessary to consider the issue of substantial prejudice to York.
[26] The HRTO determined that the only issue that was permitted to proceed to a hearing was Ms. Dosu’s allegation that the investigator had engaged in acts of discrimination against her. The remaining allegations were dismissed for delay, including her allegations set out in paragraph 20 (a) and (c ) above, relating to conduct that had occurred within one year of the filing of her application.
The reconsideration decision
[27] Ms. Dosu sought a reconsideration under s. 45.7 of the Code, which provides that the HRTO may reconsider its decisions. Under the HRTO’s rule 26.5, a reconsideration will only be granted if:
(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
[28] While only final decisions qualify for reconsideration, the HRTO in this case determined that the interim decision disposed of some of the central issues in the application, rendering the reconsideration process available to Ms. Dosu.
[29] One of the bases on which Ms. Dosu sought reconsideration was that the adjudicator dismissed allegations found to be timely (allegations (a) and (c) set out in paragraph 20 above) without considering or determining the issue of whether they had a reasonable prospect of success. She submitted that the adjudicator in fact held a hearing into the merits of the timely allegations without providing notice that she was doing so, and then dismissed those allegations without the benefit of any evidence.
[30] The reconsideration decision did not accept these submissions. It held:
[24] In a combined summary and preliminary hearing there are two hearings conducted in the same time slot in order for the Tribunal to be fair, just, and expeditious. Nonetheless, the summary and preliminary hearings remain separate hearings. The applicant's counsel asked for the summary hearing to proceed first, and the Tribunal granted the request. The applicant's counsel provided lengthy summary hearing submissions. However, the Interim Decision is based on the preliminary hearing.
[30] An applicant's summary hearing argument in support of a finding of a reasonable prospect of success, however persuasive, cannot save allegations that are found to be untimely and not connected in a series to a timely event. As discussed in more detail below, a timely incident must be able to stand on its own as an independent incident of discrimination. See Garrie at paras. 40-41, and Konesavarathan v. University of Western Ontario ("Konesavarathan"), 2017 HRTO 1152, at para. 32. (An incident that cannot stand on its own as an incident or discrimination, cannot, in any event, be found to have a reasonable prospect of success.)
[31] It is reflected in the Tribunal's jurisprudence and procedures that summary hearing submissions are not considered in a preliminary hearing analysis determining the issue of delay, except to the extent that a timely incident regarding which the applicant's allegations have no reasonable prospect of success cannot form part of a series of incidents. See for example Chappell v. Securitas Canada Limited 2012 HRTO 874 at para. 11. The timely incident must constitute an incident of discrimination within the meaning of the Code. As directed in the CAD, in a preliminary hearing a parties may call witnesses and tender evidence and the applicant in this case chose not to.
[40]…[T]here was no need for the Interim Decision to determine the issue of whether or not any allegations had a reasonable prospect of success, as the Interim Decision dismissed some of the allegations on the basis of delay, and the remaining timely allegations will continue to a full hearing on the merits
[31] The reconsideration decision found Ms. Dosu had received notice of the hearing, the issues, and procedure, that there were no conflicts with established jurisprudence and no conflict with tribunal procedures. It further found there was no error in failing to permit her to file materials not produced within the timelines ordered.
Standard of Review
[32] The standard of review of a decision of the HRTO is reasonableness. The HRTO’s decisions that fall within its specialised expertise are entitled to a high degree of deference: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458 at paras. 66, 77, and 83.
[33] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 instructs us on the scope and application of a reasonableness review. For a decision to be reasonable, it must be justifiable, transparent, and intelligible (para. 99). Decisions need not perfect; flaws that are peripheral or superficial do not render a decision unreasonable. Rather, the flaws must central or significant to render a decision unreasonable (para. 20).
[34] A decision may be unreasonable if there is a failure of rationality or it is untenable in light of the relevant factual and legal constraints (para 101). A reviewing court must be able to see internal coherence in the decision and no fatal flaws in its logic (para. 102) .
[35] With respect to issues of procedural fairness, the reviewing court is to determine whether the administrative tribunal’s procedure was fair having regard to all the circumstances: Afolabi v. Law Society of Ontario, 2025 ONCA 257 at para. 60.
Analysis
i) Preliminary issues
[36] York raises three preliminary issues. York asks that the application be dismissed because it is premature and because the grievance arbitration is an adequate alternative remedy. Further, York opposes Ms. Dosu’s request to file affidavit evidence on this application.
[37] With respect to the prematurity issue, I am satisfied that not entertaining Ms. Dosu’s application at this time is likely to create unacceptable levels of fragmentation and inefficiency: Whearty v. Waypoint Centre for Mental Health Care, 2024 ONSC 5638 at para. 9. Accordingly, in the circumstances of this case, I would not give effect to the respondents’ argument that the court should decline to determine this case on the basis of prematurity.
[38] Further, it is not clear on the record before the court that the grievance arbitration are congruent with those before the HRTO. I therefore cannot conclude that Ms. Dosu has an adequate alternative remedy.
[39] With respect to the argument that the record of proceedings ought not be supplemented by Ms. Dosu’s affidavit, it is clear that an application for judicial review is generally decided on the basis of the record that was before the initial decision-maker.
[40] In limited circumstances, supplementary evidence may be permitted. The following three recognized exceptions are set out in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R.(2d) 513 (C.A.):
i) where the evidence seeks to provide general background information, which does not include information that goes to the merits of the matter;
ii) where the affidavit is designed to demonstrate that there was a complete absence of evidence before the tribunal below on a certain issue; and
iii) where the evidence goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker.
[41] Ms. Dosu withdrew large portions of her affidavit in the face of York’s objection. Ms. Dosu submits the remainder of her affidavit falls within the exceptions identified in Keeprite.
[42] Paragraphs 38-60, on which Ms. Dosu seeks to rely, set out the procedural background of her HRTO application and the case assessment direction. Almost all of these paragraphs refer to facts contained in the record of proceeding and are not necessary to provide background. To the degree Ms. Dosu points out issues that are not included in the case assessment direction, this is properly the subject of argument, not supplementary affidavit evidence. They are therefore not permitted. Paragraph 58 contains an email that Ms. Dosu relies upon in her procedural fairness submissions, which is permitted.
[43] Paragraphs 63-133, on which Ms. Dosu seeks to rely, set out a narrative of what transpired at the combined hearing, which Ms. Dosu says is necessary because there is no transcript of the proceeding. Some of this evidence strays heavily into information that goes to the merits and is impermissible. Some of the information is permissible as background information but I find it does not assist in determining the issues raised in this application and I place no weight on those paragraphs.
ii) Procedural fairness
[44] Ms. Dosu submits that the HRTO hearing was procedurally unfair in two ways. First, she submits she should have been permitted to rely on documents that were not disclosed in accordance with the timeline that was ordered. I find no procedural unfairness in the HRTO’s decision to exclude this evidence. The HRTO is entitled to make procedural orders to ensure its hearings proceed smoothly, to expect compliance with those orders, and to attach consequences to the failure to comply. I would not give effect to this submission.
[45] However, I find that the HRTO did breach procedural fairness in the second respect put forward by Ms. Dosu. As noted above, the case assessment direction specifically advised the parties of the following in respect of the delay hearing:
[13] Section 34 of the Code requires an application to be filed within one year of the incident, or the last in a series of incidents, to which the application relates. If the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay it may be allowed to proceed. The Tribunal will ask the parties to make submissions on whether the Application should be dismissed for delay.
[16] No witnesses are called to testify for the summary hearing portion of this hearing. However, the parties will be permitted to call witnesses in relation to the delay issue listed above.
[46] Ms. Dosu therefore understood that the issues to be canvassed at the delay hearing were those of good faith and substantial prejudice, and that it was the summary hearing that was to consider the prospect of success of the allegations. Further, Ms. Dosu understood that no witnesses were permissible at the summary hearing, so no viva voce evidence was permissible on the prospect of success, and that viva voce evidence was limited to the issues of good faith and substantial prejudice was permitted at the delay hearing.
[47] Ms. Dosu therefore did not adduce evidence about the strength of her allegations at the preliminary hearing. Yet the interim decision held, in respect of Ms. Dosu’s April 2018 allegation that she had been removed from her position, that “No evidence was led, or factual basis provided, that would support an inference that there was an intention on the part of the respondent to punish or retaliate against the applicant for having claimed a right under the Code.”
[48] I find this manner of proceeding was procedurally unfair to Ms. Dosu. Had the case assessment direction not advised that the delay hearing was limited to the issues of good faith and prejudice, but would include an assessment of the strength of her timely allegations, she may have elected to call evidence on the subject.
iii) Reasonableness of the decisions
[49] Both intervenors made submissions on the reasonableness of the decisions. I have considered those submissions to the degree necessary to determine the issues raised by the parties.
[50] As noted above, for a decision to be reasonable it must be internally coherent and must not contain fatal flaws in its logic. I find that the conflation of the two hearings described above is evident in the HRTO reasons and renders them internally incoherent. It clouds the reasoning process and results in a lack of intelligibility in the decisions. The reasons repeatedly indicate that the two proceedings were separate and that the adjudicator was considering only the delay issue in her reasons. Further, the HRTO decisions indicated that they did not need to address the submissions that were made at the summary hearing, because the matter was decided in the delay section of the hearing.
[51] This is perhaps most evident in paragraphs 30 and 31 of the reconsideration decision, reproduced in paragraph 30 above. There the HRTO noted that, in effect, the “reasonable prospect of success” of an allegation is a precondition to the allegation, or an incident in a series, being considered timely. But the “reasonable prospect of success” analysis, the issue in the summary hearing, was expressly not undertaken by the HRTO. The two hearings were in fact intermingled in the HRTO decisions, despite the fact that the HRTO decisions claim to have kept them separate. The result is a decision that lacks internal coherence.
[52] I am supported in this conclusion when I contrast the HRTO’s decision in this case with other HRTO decisions in combined summary/preliminary hearings. For example, in Ratos v. Safe-Guard Canada Ltd., 2020 HRTO 307, the HRTO in a combined hearing stated “[b]efore addressing the issue of delay, I must consider whether the timely allegation in the Application must be dismissed because it has no reasonable prospect of success”. The HRTO analysed whether the “anchoring incident” had a reasonable prospect of success based on the information before it at the summary hearing and found that it could not determine that there was no reasonable prospect of success. Therefore, it went on to consider the delay issue. The decision is clear and internally consistent. The factual basis for each part of the hearing is clear, in a way that is not the case in the decisions under review here. While the order of the two hearings may depend on the circumstances, the two hearings should not be conflated in the manner that took place in this case.
[53] For these reasons, I find that the HRTO decisions are unreasonable and must be set aside.
Disposition
[54] I would allow the application, set aside the reconsideration decision and the interim decision other than with respect to the allegations it did not dismiss. I would remit the matter to the HRTO. Should the HRTO determine it will proceed with a new summary and/or preliminary hearing, it shall do so in accordance with these reasons.
[55] In accordance with the parties’ agreement, York shall pay costs of $10,000, inclusive of disbursements and HST, to Ms. Dosu.
Brownstone J.
I agree _______________________________
Matheson J.
I agree _______________________________
Schreck J.
Released: April 21, 2026
CITATION: Dosu v. Human Rights Tribunal of Ontario, et al 2026 ONSC 1918
DIVISIONAL COURT FILE NO.: DC-25-00000498-00JR
DATE: 20260421
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Schreck and Brownstone JJ.
BETWEEN:
LYDIA DOSU
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO and YORK UNIVERISTY
Respondents
– and –
YORK UNIVERSITY STAFF ASSOCIATION and BLACK LEGAL ACTION CENTRE
Interveners
REASONS FOR Decision
L. Brownstone J.
Released: April 21, 2026