{"id":55724,"date":"2026-09-17T09:56:09","date_gmt":"2026-09-17T13:56:09","guid":{"rendered":"https:\/\/www.millerthomson.com\/?p=55724"},"modified":"2026-09-17T09:56:13","modified_gmt":"2026-09-17T13:56:13","slug":"no-easy-exit-can-you-be-exempted-from-mandatory-mediation-at-the-hrto","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/labour-and-employment\/no-easy-exit-can-you-be-exempted-from-mandatory-mediation-at-the-hrto\/","title":{"rendered":"No easy exit: Can you be exempted from mandatory mediation at the HRTO?"},"content":{"rendered":"\n

Mandatory mediation took effect at the Human Rights Tribunal of Ontario (\u201cHRTO<\/strong>\u201d) on June 1, 2025, and mediation is no longer optional for most new applications. For applications filed after that date, parties should assume that they will be required to participate in mediation before the matter moves forward toward a hearing, or any other consideration by the HRTO.<\/p>\n\n\n\n

Not surprisingly, some parties have asked: Can I be exempted from mandatory mediation? <\/em>The short answer is \u201cyes\u201d, but the HRTO’s recent decisions show that obtaining an exemption will be very difficult.<\/p>\n\n\n\n

The emerging case law sends a clear message: mediation at the HRTO is not an administrative step to be avoided. It is a fundamental part of its dispute resolution process. Parties seeking an exemption face a high threshold and must demonstrate truly exceptional circumstances.<\/p>\n\n\n\n

The starting point: Mediation is the default<\/h2>\n\n\n\n

The HRTO’s Rules of Procedure allow a party to request an exemption from mandatory mediation through a Form 10 request. However, the Rules do not explain what grounds are sufficient to justify an exemption.<\/p>\n\n\n\n

To fill that gap, the HRTO has looked to Ontario court decisions dealing with mandatory mediation in civil litigation. In the leading HRTO decision, Zirk v. Liquor Control Board of Ontario<\/em><\/a>, the Tribunal adopted the principle that exemptions should be granted sparingly and only in exceptional circumstances. The HRTO emphasized that mediation serves important purposes beyond achieving settlement. It can narrow the issues, help the parties exchange information, provide reality-testing from a neutral mediator, reduce costs and delay, and promote fair and early resolution.<\/p>\n\n\n\n

As a result, the HRTO starts from the presumption that mediation should occur. Decisions to date provide a useful roadmap of arguments that have failed.<\/p>\n\n\n\n

1. “The other side is acting in bad faith”<\/h3>\n\n\n\n

In Zirk<\/em>, the applicant sought an expedited hearing and to bypass the mandatory mediation, alleging that the respondents had acted improperly during the early stages of the proceeding. He complained about procedural delays, extensions of time, service issues, and what he viewed as misrepresentations in the response materials. The HRTO rejected the request.<\/p>\n\n\n\n

It found that allegations of bad faith, procedural disputes, and frustrations with an opposing party’s litigation conduct did not amount to \u201cexceptional circumstances\u201d. In fact, the HRTO noted that mediation might be especially useful where relationships had already become contentious.  Merely believing the other side is unreasonable will not excuse attendance at mandatory mediation.<\/p>\n\n\n\n

2. “The case has no merit” or “The tribunal has no jurisdiction”<\/h3>\n\n\n\n

Respondents have repeatedly argued that mediation should be skipped because the application is doomed to fail. There is a legitimate argument that mandatory mediation may not always be the most efficient use of resources. Unlike courts, the HRTO generally operates on a no-costs basis; a successful respondent cannot normally recover the legal fees incurred responding to a meritless claim. Where a respondent believes an application is clearly outside the HRTO\u2019s jurisdiction or is likely to be dismissed on a preliminary motion, it is understandable why that respondent might question the value of a mandatory mediation and seek an exemption. However, the HRTO’s emerging jurisprudence makes clear that it sees mediation as serving broader purposes than simply facilitating settlement. Even cases facing significant jurisdictional hurdles are generally expected to proceed through mediation before those issues are adjudicated.<\/p>\n\n\n\n

In The Lucky Tekkie v. Ontario (Solicitor General)<\/em><\/a>, the respondent argued that the application was out of time, an abuse of process, and likely subject to dismissal. It intended to bring preliminary motions and took the position that the applicant should never have filed the case in the first place. The HRTO nevertheless ordered mediation. The HRTO reasoned that applications frequently proceed to mediation despite jurisdictional objections, summary hearing requests, and procedural motions. The adjudicator reasoned that uncertainty about the outcome of those motions often creates an incentive for settlement.<\/p>\n\n\n\n

Does mandatory mediation create pressure to settle before threshold issues are decided?<\/h4>\n\n\n\n

The Lucky Tekkie<\/em> decision highlights a tension in the HRTO\u2019s emerging approach to mandatory mediation. The HRTO\u2019s reasoning is understandable from an access-to-justice perspective. The HRTO views uncertainty surrounding jurisdictional and summary dismissal motions as a reason to encourage settlement discussions. Some respondents, however, may see the matter differently. If the existence of a potentially dispositive jurisdictional or summary dismissal motion is viewed as a reason to encourage settlement discussions, respondents may feel that they are being required to expend additional time and resources on a case that they believe should be dismissed outright.<\/p>\n\n\n\n

Given that the HRTO generally does not award costs, some respondents may question whether mandatory mediation in these circumstances promotes efficiency or simply increases the economic pressure to resolve claims before threshold legal issues have been decided. Whether that concern will gain traction in future exemption requests remains to be seen.<\/p>\n\n\n\n

What if you’re not even the right respondent?<\/h4>\n\n\n\n

Similarly, in McFarlane v. Thrive Group<\/em><\/a>, the respondent argued that it should be exempt from mandatory mediation because it was the wrong party entirely. The applicant alleged discrimination in employment based on disability. However, the respondent maintained that the applicant had never been employed by Thrive Group. According to the respondent, the applicant was employed by AbleLiving Services Inc., an affiliated, but separate, legal entity, and there was therefore no employment relationship between the applicant and the named respondent.<\/p>\n\n\n\n

The applicant disagreed. She asserted that Thrive Group and AbleLiving Services were closely connected organizations and pointed to matters such as her company email address and her interactions with personnel associated with Thrive Group. She maintained that Thrive Group had chosen to treat her as one of its employees and that it remained properly named as a respondent.<\/p>\n\n\n\n

Faced with these competing positions, the respondent argued there was simply nothing to mediate because it had no legal relationship with the applicant. The HRTO rejected that argument and ordered mediation to proceed. The HRTO reasoned that the identity of the proper respondent was itself a live issue in dispute. Rather than constituting a reason to bypass mediation, it was exactly the sort of issue that could be \u201cexplored\u201d during mediation. The adjudicator also noted that, if the respondent’s position ultimately proved correct, discussing the issue at mediation could potentially save time and expense by allowing the applicant to reconsider whether the proceeding should continue against Thrive Group.<\/p>\n\n\n\n

More broadly, the decision highlights that the HRTO does not view mediation solely as a mechanism for achieving settlement. Rather, it sees mediation as an opportunity to explore disputes, exchange information, and narrow issues, even where one party believes a threshold legal issue should dispose of the case. In that sense, mandatory mediation at the HRTO increasingly resembles a Small Claims Court settlement conference, where the objective is not necessarily to settle the case but to ensure the parties have fully explored the issues before moving toward adjudication. Respondents may not always welcome this approach, particularly where they believe a preliminary issue should be decided first, but the Tribunal’s recent decisions suggest that this broader understanding of mediation is becoming a central feature of its process.<\/p>\n\n\n\n

3. “I don’t want to settle”<\/h3>\n\n\n\n

Some parties have argued that mediation is pointless because they have no intention of settling. The HRTO has firmly rejected this reasoning.<\/p>\n\n\n\n

In The Lucky Tekkie<\/em>, the respondent argued it should not have to settle a case that it believed lacked merit. The HRTO responded that mandatory mediation requires attendance, not settlement. Parties remain free to maintain their positions and decline any proposed resolution. The obligation is to participate, not to compromise.<\/p>\n\n\n\n

4. Anxiety about the proceedings<\/h3>\n\n\n\n

In Heapy v. McDonald<\/em><\/a>, the applicant sought an exemption because she experienced anxiety arising from previous legal proceedings and did not want to attend the mediation in person. The applicant relied on the fact that the respondent had allegedly failed to comply with filing deadline, and that she had already submitted sufficient evidence and believed the HRTO could simply decide the case.  The HRTO denied the request, noting several factors that influenced its decision:<\/p>\n\n\n\n