Successful HRTO arguments — and the ones that fail

The test is lower than most people think

Three Supreme Court decisions, twenty years apart, progressively lowered what a claimant must prove. In Stewart v. Elk Valley Coal, 2017 SCC 30, the Court put it plainly: the threshold is whether the protected ground is a factor in the harm — also called contribution. Not the cause. Not the main reason. A factor.

Moore v. British Columbia (Education), 2012 SCC 61 supplies the rest of the frame: once a claimant shows that, the respondent must show its conduct was reasonably necessary to a broader legitimate goal. Quebec v. Bombardier, 2015 SCC 39 confirms the civil standard — balance of probabilities, not proof beyond doubt, and no need to prove intent.

Arguments the record shows succeeding

1 · Plead contribution, not causation

Frame the claim as "race was a factor in how I was treated," not "I was treated this way because of race." The second invites a search for an alternative explanation, and any innocent explanation defeats it. The first is the actual legal test (Stewart), and it survives the existence of other reasons.

2 · Attack the manner, not only the outcome

In Woodgate et al. v. RCMP, 2026 CHRT 15, the Tribunal found discrimination without finding that the investigation would have ended differently. It located the discrimination in the texture of the investigation: repeated polygraph requests to a woman who had disclosed childhood sexual assault; failures to tell witnesses how to report abuse falling outside the file; failures to communicate outcomes. You do not have to prove you would have won. You have to prove you were handled differently.

3 · Circumstantial evidence and inference are enough

Peel Law Association v. Pieters, 2013 ONCA 396 is the governing Ontario authority on how discrimination is proven. Direct evidence of a discriminatory motive almost never exists. Courts and tribunals accept inference drawn from circumstances — and the respondent, once a prima facie case is made, must explain.

4 · Reprisal is a separate claim that survives the loss of the main one

This is the most under-used provision in the entire field. Section 8 of the Ontario Code — and s. 14.1 federally — makes punishing someone for asserting Code rights a free-standing breach. Boukailo v. Canada Post, 2021 CHRT 43: "Retaliation is a stand-alone discriminatory practice." It stands even if the underlying discrimination claim fails, because the wrong is the punishment, not the original conduct.

Our Thunder Bay corpus is the demonstration: "reprisal" appears in 26 of 50 applications — more than half, and more than every identity ground except disability.

5 · Use systemic evidence as context, not as your claim

A free-standing systemic claim usually fails on standing or nexus. Systemic evidence used to explain an individual decision often survives. In Cst. SM, Sgt. SV and Cpl. JR v. RCMP, 2024 CHRT 113, the complainants argued systemic racism "helps explain why they were denied the promotions at issue" — and the decision records that the RCMP itself "has acknowledged that systemic racism exists in their organization." Find the institution's own admissions and use them as background to your specific facts.

6 · Get the documents, then argue from the contradiction

The single most probative document in recent Ontario police litigation was obtained by an access request, not a lawyer. In Khorsand v. Toronto Police Services Board, 2024 ONCA 597, a freedom-of-information request produced nine police reports: none revealed any criminal behaviour, and three described the applicant as "Brown", "Middle Eastern", or "Persian." Institutional records that contradict institutional testimony are the strongest material in any file. How to obtain yours.

7 · Delay is an argument — sometimes

In Briggs v. Durham (Police Services Board), 2022 ONCA 823, the Court of Appeal upheld the Divisional Court granting the remedy itself instead of sending it back, "especially considering the lengthy delay since Mr. Briggs brought his first application." Delay ordinarily protects respondents; here it worked the other way.

Arguments the record shows failing

Respondent arguments that have been rejected

• "A criminal investigation is not a service." Argued by the RCMP; rejected in Woodgate, 2026 CHRT 15. How police investigate is service delivery, and it is covered.
• "Police discretion and independence justify this." Argued; rejected in the same decision. Discretion is not a defence to discriminatory exercise of discretion.
• Criminal-law standards in a discrimination case. Urged in Shaw v. Phipps; rejected by the Divisional Court and abandoned on appeal. Discrimination is proven on the civil standard.
• Deference as a shield. In Briggs, the police board argued the reviewing court gave the Tribunal too little deference. It failed at two levels. Deference does not immunise an unreasonable ruling.

Claimant arguments that have failed

• Public-law judicial review of police employment vetting. Khorsand: the Court of Appeal allowed the police board's appeal and held the pre-screening decision not judicially reviewable because it was not sufficiently public — expressly declining to decide whether the process was fair. After Khorsand, the Code route (and access-to-information) carries the weight administrative law used to.
• "Racial profiling" pleaded as a stand-alone civil cause of action. In Asghar v. Toronto Police Services Board, 2019 ONCA 479, police respondents argued that racial profiling is not a recognised cause of action in civil court. In the Code system it is actionable; in a civil claim it generally has to be pleaded through recognised torts.
• Free-standing public-interest claims by individuals. Under s. 34 of the Code, applications belong to people asserting their own rights; public-interest applications belong to the Commission alone. The gap this creates.
• Systemic remedies without a tight nexus. Even in victory, Woodgate refused a new investigation and an Indigenous-led investigative programme for insufficient connection to the discrimination proven. Ask for remedies that flow directly from your facts.

The procedural mistakes that end good cases

• Settling one matter while another is reserved. Briggs took ten years and three levels of decision-maker because Minutes of Settlement referring to one file number were held to have settled a different application whose decision was on reserve. Two courts eventually disagreed. Never sign a release without written scope naming every file it covers and every file it does not.
• Sending an adjournment request only to the other side. Requests go to the Tribunal, in writing, copied to opposing counsel — never the reverse. Why this ends cases.
• Not answering a jurisdictional letter. Most abandonment findings are not people giving up. They are people who did not understand what was being asked.
• Missing the 30-day judicial review window. Imposed in 2021 where no deadline had existed. Extensions are discretionary.

What decision-makers say — and what they do

One pattern runs through the whole record and it is worth knowing before you build expectations. Courts and tribunals will name systemic racism in policing, and then decline to remedy it structurally.

The Divisional Court majority in Khorsand wrote of "systemic discrimination in law enforcement institutions and police misuse of race-based data," and of a public interest in ensuring "that the unregulated use of police records does not result in the perpetuation of systemic discrimination." The Court of Appeal then held the decision was not reviewable at all. In Woodgate, the Tribunal told survivors it believed they were abused — and refused the structural remedies sought.

Where the law actually is

Sources retrieved from the A2AJ open Canadian legal corpus. This page describes patterns in decided cases. It is not legal advice, it does not address your facts, and deadlines are short — see below.