Canadian Human Rights Commission legal representative:
Address:
Tel.:
Fax:
Complainant or respondent: Legal representative:
Address: Address:
Tel.: Tel.:
Fax: Fax:
Interested party: Legal representative:
Address: Address:
Tel.: Tel.:
Fax: Fax:
Deadline
for submitting questionnaire:
Deadline
for disclosure:
Where
to go:
Hearing
begins:
Scheduled
dates of hearing:
What to bring to the hearing
q copies of your book of authorities
q witness list (including whether each witness prefers to swear an oath or make a solemn affirmation)
q copies of documents you plan to file as exhibits
This
publication is available in Braille on request.
(c)
Minister of Public Works and Government Services Canada Cat. No. HR64-1/2002E
ISBN 0-662-32098-0
For
further information please contact:
Canadian
Human Rights Tribunal
900
- 473 Albert Street
Ottawa,
Ontario
K1A
1J4
Telephone:
(613) 995-1707
TTY:
(613) 563-6460
Fax:
(613) 995-3484
registrar@chrt-tcdp.gc.ca
Part 1: Introduction..... 2
About this guide.........
2
Who should read this guide?
2
What is the Canadian Human Rights Tribunal?......... 3
Do I need a lawyer?
4
Overview 5
How to read this guide.
5
Who is my point of contact with the Tribunal?......... 6
Part 2: From referral to
decision: the big picture 7
Before the hearing.......
7
At the hearing 9
After the hearing.......
12
Part 3: What you'll need to do....... 15
Before the hearing 15
The
case-planning questionnaire 15
Confirmation
of hearing dates and notification of deadlines for disclosure 17
Preparing
for the hearing 18
Developing
your presentation 20
Final
preparations for the hearing 20
At the hearing 21
Hearing
day 22
After the hearing 26
Part 4: Glossary.......... 27
Part 5: Sample documents....... 49
Notice of hearing........
49
Subpoena 50
Record of appearance.
52
This
guide explains what happens once a complaint is referred to the Canadian Human
Rights Tribunal. The guide is intended to help the participants in a human
rights case — the complainant and the respondent — understand the human
rights enforcement process and become familiar with the steps along the way and
the documents that will be required.
Caution
This guide does not contain legal advice, and nothing in this document should be taken as legal advice. This guide is a general overview of the process. Procedures may vary to meet the needs of individual cases.
This guide will be of greatest benefit to complainants or respondents who do not have independent legal representation and who will therefore be presenting their own cases before the Tribunal. Parts 1 and 2 present the big picture; part 3 zeroes in on the details; and parts 4 and 5 offer supporting information. (See "How to read this guide," page 5.)
The
Canadian Human Rights Tribunal is much like a court. It hears complaints
referred to it by the Canadian
Human Rights Commission and decides whether what is alleged to have occurred is a
discriminatory practice on one of the grounds prohibited by the Canadian
Human Rights Act. If the Tribunal finds that discrimination occurred, it
also determines the appropriate remedy. The Tribunal is
the only body that is legally entitled to decide whether a person has engaged
in a discriminatory practice under the Act. The Tribunal's jurisdiction covers
matters that come within the legislative authority of the Parliament of Canada,
including federal government departments and agencies and Crown corporations,
as well as banks, airlines and other federally regulated employers and
providers of goods, services, facilities and accommodation.
A
human rights complaint is initially investigated by the Commission. Where
appropriate, the Commission may attempt to help the complainant and respondent
reach an agreement. Most complaints considered by the Commission are either
dismissed or are resolved to the satisfaction of the parties through dispute
resolution mechanisms such as conciliation or mediation. However, if the
complaint cannot be resolved, and the Commission determines that further
inquiry is warranted, it refers the complaint to the Tribunal. About six
percent of complaints received by the Commission are referred to the Tribunal
for resolution.
The
Canadian Human Rights Tribunal is the name for both the organization responsible for enforcing the Act and the specific member or members assigned to hear
and rule on each case. Members who sit in judgement during a hearing perform essentially the same
role as a judge in a courtroom.
Up
to 15 Tribunal members — a full-time Chairperson and Vice-Chairperson and 13
full- or part-time members from across Canada — are assigned to hear and
adjudicate all cases that come before the Tribunal. The Chairperson assigns
either one or three members to hear each case.
In
addition to the members, the Tribunal has a secretariat, called the Registry, which offers administrative
support to members and acts as a liaison between the parties and the member or
members hearing the case.
Once
your case, or a complaint against you, has been referred to the Tribunal, the
first decision you need to make is whether to hire a lawyer. Both complainants
and respondents have the right to have a lawyer represent them at the hearing.
For complainants, depending on the circumstances, the Tribunal may order the
respondent to pay for your legal costs if your complaint is substantiated.
In
most instances, the Commission is also a participant in cases referred to the
Tribunal. Although the Commission will assign a lawyer to represent it before
the Tribunal, the Commission's lawyer is not acting on behalf of the complainant,
but in the public interest, in the same way that a Crown attorney prosecutes
criminals on behalf of the people of Canada rather than acting on behalf of
individual victims.
If
you are a complainant, it is important that you confer with the Commission's
lawyer as soon as possible to determine whether you agree with the evidence
that the Commission plans to present at the hearing and with the remedy it is
proposing. If you do not, you have the option of having your own lawyer or
representing yourself.
If
you are a respondent, you will be given an opportunity during the hearing to
respond to the complaint against you. Although you are not obliged to have your
own lawyer, it may be prudent for you to seek independent legal advice about
your case.
Whether
you are a complainant or a respondent, this guide will help you to understand
the chain of events involved in the process and what you'll be expected to do
if you decide to represent yourself. Again, nothing in this document should be
construed to be legal advice.
This
booklet consists of five parts.
·
Part
1 describes the roles of the Canadian Human Rights Commission and the Canadian
Human Rights Tribunal and explains who should use the guide and why.
·
Part
2 explains how a typical case unfolds once it has been referred to the
Tribunal.
·
Part
3 sets out the steps that parties must take once a case has been referred to
the Tribunal.
·
Part
4 explains the terms and concepts that appear in Parts 1, 2 and 3.
·
Part
5 consists of samples of some of the documents you are likely to encounter.
If
you are involved in a case that has been referred to the Tribunal, you may wish
to familiarize yourself with the process that is about to unfold by reading
some or all of this guide. Part 2 gives you a general, overall view of the
process and time lines. Part 3 describes the steps you will follow as the
process unfolds. (If a lawyer will be acting on your behalf, most of the steps
described in Part 3 will be conducted by your lawyer.) Throughout the guide,
specialized terms appear in bold
blue type.
Terms identified in this manner are explained in alphabetical order in Part 4.
Sample documents [document 1 icon] can be found in Part 5.
A word about icons
The icons below are used in the margins to help you navigate through the guide.
[magnifying glass icon] Points to remember
[checkmark icon] Important actions to be taken
[document icon] Sample documents to be found in Part 5. The number inside the icon indicates which document number it is in Part 5.
When
a case is referred to the Tribunal, a Registry Officer is assigned to look after the administrative details of the
case. The first letter you receive from the Tribunal will contain the name and
telephone number of the officer assigned to be your point of contact with the
Tribunal. You should address any questions you have, including requests for
assistance, to that person when you are in doubt about the Tribunal's
procedures.
This part (and the timeline
that follows it) describes the chain of events that unfolds from the moment a
case is referred to the Tribunal until the Tribunal issues its decision.
The entire process can take up to one year.
Within
days of receiving a referral from the Canadian Human Rights Commission, the Tribunal Registry sends an information package
and case-planning questionnaire to each of the parties:
·
the
complainant(s)
·
the
respondent(s)
·
the
Commission
The
questionnaire gathers key pieces of information the Registry needs to schedule hearing dates and other aspects of
the case. The questionnaire asks:
·
whether
you will be represented by a lawyer and, if you will be, the name and address
of your lawyer
·
how
many witnesses (including expert witnesses) you plan to call at the
hearing
·
how
many days you'll take to present your side of the story
·
when,
where and in what language you would like the hearing to take place
·
whether
there are any preliminary matters you would like to
raise
·
whether
it will be possible to submit an agreed
statement of facts (if there are facts in the case that are not in dispute)
·
whether
you require any special services (for example, sign language interpretation or
a sound system)
·
what
remedy you're seeking
(complainant and Commission only)
Within
three weeks of receiving the information package, each party must send a copy
of the completed questionnaire to each of the others as well as to the
Tribunal. If either of the parties wants a matter dealt with before the
hearing, he or she must file a motion with the Tribunal
requesting a ruling. For example, the
respondent may feel that the Tribunal does not have the authority to rule in
this case. A motion can be filed at any time before or during the hearing; it
can ask the Tribunal to consider any matter. The Tribunal will outline a
process for deciding how to deal with that matter.
Within
four weeks of receiving the completed questionnaires, the Registry sends a
letter to all the parties summarizing the contents of the questionnaires and
letting the parties know when and where the hearing will take place. If any
issues need to be resolved before the hearing, the Tribunal provides
instructions about how it plans to resolve them. The Tribunal also establishes
deadlines for the exchange of key information among the parties. If the hearing
date has already been scheduled, the letter will also include an official
notice of the hearing [document icon]. Otherwise, official notice of the
hearing date will be sent to the parties in a separate letter well in advance
of the hearing. (The Tribunal generally tries to schedule hearings within four
months of receiving the referral from the Commission.)
Over
the course of the next month or two, the parties will gather all the documents
they intend to put forward as evidence at the hearing,
including summaries of the testimony that their witnesses will give and the
written reports of expert witnesses. The complainant will also decide what
remedy to ask for. These documents, as well as all other documents that are
relevant to the case but will not be relied on at the hearing, are then copied
and exchanged among the parties in a process called disclosure. The parties also exchange
lists of documents that are relevant to the case but that they don't plan to
disclose because they consider these documents privileged. In preparing for the hearing, the parties will also
develop their arguments. This involves
developing a line of argument to explain why the Tribunal should reach a
particular conclusion in this case and may include reference to earlier
decisions of human rights tribunals or the courts. Finally, it means being
prepared to explain why the arguments put forward by the other side are not
applicable to the facts of your case.
Approximately
one month before the hearing, the Tribunal sends a letter to all parties
telling them how many copies of each document they'll need to bring.
Note:
At any point in the process, the parties may reach a settlement instead of seeking a decision from the Tribunal.
Hearings
are generally conducted in the town or city where the alleged discrimination
took place. The location is often a hotel or conference centre. In larger
cities, it is not uncommon for hearings to be held in a federal courthouse.
On
average, a hearing lasts 10 days. Present at the hearing are the complainant,
the respondent, their respective lawyers, the lawyer for the Canadian Human
Rights Commission (unless, as sometimes happens, the Commission decides not to
participate in the hearing), the various witnesses who will be testifying on
behalf of the parties, the court
reporter,
the Registry Officer responsible for
the case and the member or members of the
Tribunal who will be hearing the case. The media, members of the general public
and interested parties may also attend
the hearing.
As
the hearing begins, each party is asked to introduce herself or himself. The
Tribunal then invites the Commission and complainant to make an opening statement, which summarizes
what they intend to prove during the hearing. The respondent may then deliver
an opening statement or choose to do so when presenting his or her case.
Then
the Commission and the complainant present the evidence intended to demonstrate
that discrimination occurred. The evidence generally consists of documents and
testimony from witnesses. (The process of questioning one's own witness to
elicit testimony is called direct
examination.)
In addition to proving that the respondent's actions constituted
discrimination, the Commission and the complainant may also attempt to prove
that the complainant sustained damages as a result of the respondent's actions.
(In some cases, the Commission may attempt to prove an even wider point — that
the respondent's actions were also harmful to society as a whole.) The
respondent is entitled to question the witnesses who testify on behalf of the
Commission and the complainant. This cross-examination may be intended to cast doubt on the version of the facts
put forward by the witnesses. Once the respondent has had a chance to
cross-examine the witnesses, the Commission and the complainant may re-examine their witnesses to further
clarify statements made during cross-examination or to elaborate on new issues
raised during cross-examination. The members of the Tribunal may also ask
questions of the witnesses to more fully understand their evidence.
It
is not uncommon for a witness to spend a few hours giving testimony. If the
Commission is a party to the case, the witnesses called by the complainant will
not duplicate the case put forward by the Commission's witnesses; however, the
complainant can call witnesses to amplify or supplement the case put forward by
the Commission.
The
Tribunal then invites the respondent to respond to the allegations by calling
his or her witnesses. During this portion of the hearing, the respondent may
present evidence that is intended to contradict, or cast doubt on, the case
presented by the Commission and the complainant. Both the Commission and the
complainant are entitled to cross-examine the respondent's witnesses. The
respondent can re-examine his or her witnesses after cross-examination, and the
Commission and the complainant may, if allowed by the Tribunal, be entitled to
reply. The members of the Tribunal may also ask questions of these witnesses.
When
either side wishes the Tribunal to admit into evidence a witness statement
without calling the witness to testify, that testimony may be admitted into
evidence, with the Tribunal's permission, through the use of a sworn document
called an affidavit. This statement
then becomes part of the official public record as if the witness had testified
at the hearing.
On
the other hand, one of the parties may wish to have a document or a witness statement
admitted into evidence, but the other party may disagree. The Tribunal will
then hear arguments about why a particular piece of evidence should or
shouldn't be admitted.
The
Tribunal considers the documents and the statements of all the witnesses and
decides how credible they are and how much weight to give to the evidence
presented by each side in the case.
After
the witnesses have finished being examined, the Commission and the complainant
are each given the opportunity to link all the facts together into a narrative
that summarizes what the respondent did to the complainant and why those
actions should be considered discrimination within the meaning of the Canadian
Human Rights Act. This segment of the proceedings is called the final argument. At this point, the
Commission and the complainant explain why the evidence proves that
discrimination occurred within the meaning of the Act. The respondent attempts
to counter this argument with reasons why the evidence does not support the
conclusion that discrimination occurred or, if the respondent acknowledges that
his or her actions were discriminatory, why the discrimination was justified.
The Commission and the complainant are then given the opportunity to respond to
new points raised by the respondent. This is called reply argument.
When
the Tribunal has heard all the arguments, it adjourns the case and reserves its
decision. That decision will usually be made public within four months of the
close of the hearing.
If
a party is dissatisfied with the decision, he or she may seek judicial review
of the Tribunal's decision by filing a motion in the Federal Court Trial
Division within 30 days of the release of the Tribunal's decision. If the court
disagrees with the Tribunal's ruling, the case is generally referred back to
the original one- or three-member Tribunal, which will reconsider certain
aspects of the inquiry based on the directions of the Court. However, in
certain circumstances, the Federal Court may direct that the entire process
begin anew with the creation of a new Tribunal.
This
timeline gives you an idea of how the case may proceed. The times given here
are estimates only, and often vary from case to case. You'll find more details
about each action [checkmark icon] in Part 3.
Before the Hearing
|
The
Hearing |
After
the Hearing |
|||||||||||||||
|
|
|
[checkmark icon] Gather evidence and prepare arguments |
[checkmark icon] Final preparations for the hearing: build and copy book of authorities, copy documents to be filed as exhibits, determine whether witnesses prefer oaths or solemn affirmations |
|
|
||||||||||||
|
|
a few days |
3 weeks |
4 weeks |
about 30 days |
about 30 days |
about 30 days |
about 10 hearing days |
about 4 Last day of the hearing months |
|
||||||||
|
Tribunal receives case referral from Commission |
Tribunal Registry sends letter and questionnaire to all parties |
[checkmark icon] File and serve the completed questionnaire |
Registry sends letter that summarizes questionnaires, sets hearing dates and location, sets deadlines for disclosure, and details how preliminary matters will be dealt with |
[checkmark icon] Commission/ complainant: meet deadline for disclosure |
[checkmark icon] Respondent: meet deadline for disclosure Tribunal sends letter outlining its procedures on the filing of exhibits and case law |
First day of the hearing |
Last day of the hearing |
Tribunal releases its decision |
|||||||||
As a complainant or a respondent in a case before the Tribunal, you will be given the chance
to present your side of the story. This part details what you'll need to do to
prepare for and participate in your hearing. If you are
represented by counsel, your lawyer will normally do this for you.
As
soon as your case or the complaint against you is referred to the Tribunal,
you'll receive a letter from the Tribunal Registrar advising that the Tribunal
will be conducting an inquiry into the complaint. The letter will ask you to
provide the Registry Officer assigned to the
case with the name and address of your lawyer.
Included
with the letter, you will find:
·
a
questionnaire
·
a
copy of this guide
·
a
copy of the Tribunal's Rules of
Procedure
·
a
copy of the Canadian Human Rights Act
The
letter asks you to complete the questionnaire and to send a copy to the
Tribunal Registry and to the other parties in the case. You will have
about three weeks to complete and submit the questionnaire. If you plan to hire
a lawyer, he or she will likely complete the questionnaire on your behalf.
The
questionnaire asks you to:
·
indicate
whether you will be represented by a lawyer and, if so, to provide your
lawyer's name and address
·
identify
and describe any preliminary
matters,
including questions of law, jurisdiction or procedure, that you wish to have
dealt with at the beginning of the hearing
·
estimate
how many witnesses, including expert witnesses, you plan to call at the
hearing
·
estimate
how many days you'll take to present your side of the story
·
provide
a list of dates during which you will be available to attend the hearing
·
describe
any remedies you will be
seeking (complainant and Commission only)
·
indicate
whether it will be possible to submit an agreed statement of facts (an agreed statement of
facts helps speed up the process by reducing the need for witness testimony or
other documentation otherwise required to substantiate all the facts)
·
indicate
whether you wish the hearing to be conducted in English or French (the Tribunal
will provide simultaneous interpretation — see interpreters — as required)
·
confirm
whether you agree with the Tribunal's suggested venue or propose another one (the questionnaire names a location
for the hearing)
·
advise
the Tribunal whether you or any of your witnesses require special accommodation
(for example, a sign language interpreter or a sound system)
The
Tribunal will use the information collected in the questionnaire to schedule
hearing dates and plan other aspects of the case.
[checkmark
icon] Complete the questionnaire and
send it by fax, by courier or deliver in person to the Tribunal and the other
party or parties.
About
four weeks after the Tribunal receives your completed questionnaire, the
Registry Officer assigned to your case will send you a letter telling you when
and where the hearing will be held and in what language it will be conducted.
An official notice of the hearing [document 1 icon] will follow within
approximately two weeks. (The Tribunal generally tries to schedule hearings
within four months of receiving the referral from the Commission, and official
notice is generally sent to the parties about 90 days before the start of the
hearing.)
If
preliminary matters were raised in any of the questionnaires submitted by the
parties, the Registry Officer's letter will provide instructions on how these
issues are to be resolved. For example, the Tribunal may have scheduled a date
to hear arguments on your motion or a motion filed by the
other party; if so, the letter will include an official notice of this pre-hearing. Or the letter may direct
that the matter be dealt with in writing.
The
Registry Officer's letter will also announce deadlines for the exchange of
certain kinds of information among the parties, a process called disclosure. Specifically, disclosure
involves serving the other parties
with:
·
a
list of all documents in your possession that are relevant to the case, whether
or not you intend to rely on them during the hearing, including documents you don't plan to disclose because you consider
them privileged
o with this list,
include copies of all documents in your possession that are relevant to the
case, whether or not you intend to rely on them during the hearing, excluding the documents you consider
privileged
·
a
list of the witnesses you plan to call and a summary of the testimony they will give (see will-say statement)
·
written
reports prepared by expert witnesses
·
a
brief written summary of the topics you plan to address during the hearing, the
facts you intend to prove and the arguments you plan to present. The
complainant and the Commission must also explain the remedy they're seeking.
All
of the items above (except for actual copies of your documentary evidence) must
also be filed with (delivered
to) the Tribunal, along with a letter confirming that you have met the deadline
for disclosure. There are rules about how a document can be served or filed,
and about the proof you'll need that a document was served. See the glossary
(under serving and filing) for more information.
The
complainant and the Commission are usually required to disclose their evidence, arguments, remedy sought
and expert witness reports at least 60 days before the start of the hearing to
give the respondent an opportunity to prepare a response to the complaint. In
contrast, the respondent usually has until about 30 days before the start of
the hearing to provide most of the required information to the complainant and
the Commission. However, depending on the circumstances of each case, the time
lines for disclosure may change.
[magnifying
glass icon] If you fail to disclose a
document, you may not be allowed to introduce it into evidence at the hearing.
Similarly, you may not be permitted to examine witnesses or raise legal issues
that you have failed to identify in advance. The Tribunal will allow a party to
rely on evidence not disclosed before the hearing only in exceptional
circumstances. You also have an ongoing duty to disclose any new document as
soon as it comes into your possession and any new witness or legal issue as
soon as it comes to your attention.
The
information you provide to the other side outlines the evidence and arguments
you plan to present at the hearing. Before you can forward this information,
you must figure out the best way to tell your side of the story. If you are the
complainant, you must prove what you say the respondent did and show why the
actions constitute discrimination under the Canadian
Human Rights Act. If you are seeking a specific remedy, you need to present
evidence of the damage you suffered as a result of the respondent's actions. If
you are the respondent, you should decide what evidence you can use to
challenge the allegations against you.
Whether
you are the complainant or the respondent, your presentation to the Tribunal
will be made up of evidence and legal submissions or arguments. Evidence
generally consists of documents and witness testimony that attest to the truth
of what you are presenting as the facts of the case. For example, you might use
an income tax return to prove that you had reduced earnings that year or a
personnel file to prove that you were about to be promoted before you lost your
job.
In
preparing your case, you may plan to use witnesses, including expert witnesses.
It is possible that a witness you plan to examine at the hearing does not wish
to appear before the Tribunal. If you feel that your presentation will be less
effective in the absence of the witness, you can compel a witness to attend the
hearing by serving her or him with a subpoena [document 2 icon]. You can request a subpoena from the
Tribunal by contacting the Registry Officer assigned to your case. If the
Tribunal grants your request to subpoena a witness, the Registry will provide
you with a signed subpoena, which you must then arrange to have served on the
witness.
Once
you have gathered and copied every document you intend to file as evidence in
the case, compiled a list of all relevant documents, prepared a list of the
witnesses you plan to call at the hearing and summarized what they will say,
and gathered more detailed reports of the testimony of your expert witnesses,
you must deliver copies of all these documents to the other side. You must also
deliver copies of a brief written summary of the presentation you plan to make
at the hearing. The summary should list the topics you plan to address, briefly
describe the evidence you plan to present and outline the conclusions you plan
to draw from the evidence. File all the above items (except for actual copies
of your documentary evidence) with your Registry Officer as well, along with a
letter confirming that you have met the deadline for disclosure.
[checkmark icon] Disclosure
Checklist
Served on the other parties and filed with the Tribunal Registry by the disclosure deadline:
q document list
q witness list
q will-say statements for every witness
q expert witness reports
q brief written summary of your presentation
q Served on the other parties by the disclosure deadline:
q copies of all relevant documents, including affidavits, except privileged documents
q Filed with the Tribunal Registry by the disclosure deadline:
q letter to Tribunal Registry confirming that you have met the disclosure deadline
If
you are the complainant, proving that you were discriminated against may
require more than simply proving what was done to you. If you are the
respondent, countering the complaint may require more than simply refuting the
facts alleged by the complainant. It is not uncommon for the complainant and
the respondent to agree about the facts but disagree about whether they
actually add up to discrimination within the meaning of the Canadian Human Rights Act. For example,
a respondent may admit that the reason that an individual was not hired was
because of a disability. However, the respondent may also believe that the
individual, because of his or her disability, is not capable of performing the
essential duties of the job. The Tribunal, based on the evidence, will decide
whether there is a justifiable reason for not hiring the individual.
If
you are the complainant, you should explain how your evidence supports the
conclusion that discrimination occurred. You may wish to use past human rights
cases decided by the courts.
If
you are the respondent, you can counter the complainant's argument by:
·
explaining
why the case law relied on by the complainant is not applicable to the facts in
your case
·
citing
case law that dismissed a complaint made in a similar situation
About
four weeks before the hearing, you will receive a letter from the Tribunal
Registry explaining the Tribunal's procedures on the filing of exhibits and case law. The letter
will ask that you prepare a set number of copies of all the documents and
exhibits you plan to file with the Tribunal, as well as the case law that you
plan to rely on during the hearing (see book of authorities).
You
will be expected to prepare a copy of each document for use by the Tribunal
chairperson, two additional Tribunal members (unless the Tribunal is made up of
only one member), the official
record, the court reporter, witnesses and
all other parties to the case.
Since
many of the cases you may be relying on at the hearing will already be familiar
to the Tribunal, you need not copy all these cases in their entirety. Your
Registry Officer will send you an alphabetical index of human rights decisions
most often cited. If a case you plan to refer to is listed in this book of jurisprudence, you need only
copy the pages of the case that you plan to refer to during the hearing.
[check
mark icon] Assemble all your documentary
evidence. Make copies (as instructed by your Registry Officer) to file with the
Tribunal. Select the legal cases that you plan to rely on during your final
argument. Photocopy in their entirety the cases that are not contained in the
Tribunal's book of jurisprudence and the relevant excerpts of those that are.
Assemble all the cases and excerpts in alphabetical order. Prepare an index.
Make the required number of copies. Bind the booklets and insert a tab at the
start of each case. Also, find out what type of oath each of your witnesses
will wish to take when they are sworn in. This information will be requested by
your Registry Officer at the hearing.
Note:
Either party can file a motion at any time before or during the hearing, asking the Tribunal to rule on a particular matter.
The
objective of the hearing is to allow the Tribunal to hear all the relevant
merits of the case so it can decide whether discrimination occurred. If you are
the complainant, the hearing is your chance to explain how you were
discriminated against. If you are the respondent, the hearing is your chance to
refute the allegations.
Unlike
in a criminal case, where the Crown must prove the truth of the facts beyond a
reasonable doubt, the burden of proof in a human rights case is less stringent.
The threshold for substantiating a complaint is that, based on the facts, it is
more likely than not that discrimination occurred. In other words, the
complainant needs to tip the scales of probability by only a small margin. If
the complainant succeeds in establishing a prima facie case, then the respondent must justify his or her actions,
explaining why acts that appear discriminatory on their face were not.
When
you arrive at your hearing, the Registry Officer will ask you to complete a record of appearance [document 3
icon]. This form requests the name of every witness you plan to call over the
course of the hearing and the type of oath that each of your witnesses wishes to take when they are
sworn in. You should come to your hearing with this information. The Registry
Officer will have a bible available. You and your witnesses may also bring your
own holy books.
Several
people may be present at the hearing. They include the complainant, the
respondent, their respective lawyers, the lawyer for the Canadian Human Rights Commission (if the
Commission is a party), the witnesses that will be testifying on behalf of the
parties, the Registry Officer responsible for the case, the court reporter, and
the member or members of the Tribunal who will hear the case. Interested parties, journalists and
members of the public may also be present in the hearing room. The hearing is a
public proceeding, and anything said in the hearing room usually becomes part
of the public record.
Once
all the parties have filled in and returned their record of appearance forms,
the Registry Officer will call the hearing to order, introduce the Chair and
the other members of the Tribunal — a Tribunal always consists of either one or
three members — and ask the parties to introduce themselves. The normal order
for introductions is: the Commission, the complainant, the respondent and any interested
parties. The parties and their lawyers each take turns standing up and
introducing themselves.
During
the hearing, the custom is to address the Chairperson as "Mr./Madam
Chairperson" and the members of the panel as "Member or Mr./Mrs./Ms.
Smith."
The
Tribunal Chair will then invite each party to make an opening statement. When
you are invited to make your opening
statement,
you should briefly summarize the main points that you plan to prove to the
Tribunal during your presentation.
|
Tribunal members |
||
|
Tribunal Officer |
Court Reporter |
Witness |
|
Complainant (and Lawyer) and Commission's Lawyer |
Respondent (and Lawyer) |
|
|
Extra Seating (for interested parties, assistants to lawyers, etc.) |
||
|
Public Seating |
||
When
opening statements are completed, the Tribunal Chair will invite the
Commission, if it is a party to the case, to call its first witness. The
Commission will usually call the complainant as its first witness. If the
Commission is not a party to the case, the complainant will be asked to call
the first witness. (As the complainant, you may wish to take the stand and
state the facts as you understand them.) The complainant and the Commission
call their witnesses before the respondent is invited to call his or her
witnesses. When the Commission or the complainant is finished questioning each
witness (also called direct
examination
of a witness), the respondent is invited to cross-examine that witness.
After
the respondent has cross-examined a witness, the Commission or the complainant
is offered the opportunity to re-examine the witness. The
purpose of this re-examination is to clarify or explain issues that arose
during cross-examination. No new facts or topics may be introduced at this
stage. The Tribunal may also ask questions of the witnesses.
It
is not uncommon for a witness to spend a few hours giving testimony. If the
Commission is a party to the case, the witnesses called by the complainant
should not duplicate the case put forward by the Commission's witnesses.
However, the complainant can call witnesses to amplify or supplement the case
put forward by the Commission.
Once
all of the witnesses appearing on behalf of the Commission and the complainant
have given their evidence, the Tribunal will invite the respondent to call his
or her witnesses. (Respondents may also take the stand and testify on their own
behalf.) During this portion of the hearing, the respondent calls and examines
witnesses with a view to presenting evidence that supports his or her case.
Both the Commission and the complainant are entitled to cross-examine the
respondent's witnesses. After the Commission or the complainant cross-examines
each of the witnesses, the respondent may re-examine them. The members of the
Tribunal may also ask questions of the witnesses.
When
any party wants to present as evidence the statement of a witness who is unable
to appear at the hearing, this statement can be admitted into evidence at the
hearing in the form of an affidavit, an agreed
statement of facts or an unsworn statement. Any of these documents, if accepted
by the Tribunal, becomes part of the official public record as if the witness
had testified at the hearing.
During
the portion of the hearing dedicated to the presentation of evidence, it is
important that you stick to the facts. You'll have an opportunity later in the
hearing to draw conclusions from those facts.
An
exception to this rule arises if there is a matter, other than the merits of
the complaint, that needs to be decided in the course of the hearing. For
example, perhaps one party objects to calling a particular witness or filing a
particular document into evidence. In that case, the Tribunal will invite both
parties to make a submission about why a
particular witness statement or piece of evidence should or shouldn't be
admitted.
After
the witnesses have been examined, cross-examined and re-examined, the
Commission and complainant may be given an opportunity to reply to new evidence
introduced by the respondent that was not covered during the complainant's or
Commission's direct evidence. No new evidence
may be introduced at this time.
When
all of the evidence has been presented, the Commission and the complainant are
each given the opportunity to revisit the principal facts and weave them into a
narrative that summarizes what the respondent did to the complainant and why,
based on the case law, those actions
should be considered discrimination within the meaning of the Canadian Human Rights Act. This segment
of the proceedings is called the final
argument.
The respondent will then be given the opportunity to present his or her final
argument. As the respondent, your argument should demonstrate how the evidence
you presented, together with the case law, does not support a finding of
discrimination or, if it does, why your actions were justified in the
circumstances. This portion of the hearing allows each party to draw together
all the threads of evidence he or she has presented and to link them to the
conclusions he or she would like the Tribunal to reach.
The
Tribunal's job is ultimately to consider all the documents and witness
statements, determine how much weight to give to the evidence presented by each
side in the case and assess the quality of the arguments presented by each
party.
When
the Tribunal has heard all the arguments, it adjourns the case and reserves its
decision. The Tribunal's
decision is usually made public within four months of the close of the hearing.
You will receive a copy of the decision by courier and e-mail (if possible) the
same day it is released.
If
you are dissatisfied with the Tribunal's decision and wish to have that
decision reviewed by a higher court, you must file an application for judicial
review in the Federal Court Trial Division within 30 days of the release of the
Tribunal's decision.
An
affidavit is a written, sworn statement that is submitted into evidence at a hearing in place of a
witness's testimony. Affidavits
usually are used to present facts that are not in dispute — for example, during
presentation of motions — but may contain statements that the other side does
not agree with. Although affidavits may be admitted into evidence they have
been used very rarely in Tribunal hearings. Generally, evidence presented
through testimony is of greater weight.
If
you are planning to submit an affidavit in lieu of witness testimony, you must
inform the other parties and the Tribunal
as soon as possible, and give the other parties a copy of the affidavit as part
of disclosure.
Normally,
you or your lawyer will prepare the affidavit and have it signed by the witness
making the statement. When signing the affidavit, the witness must swear under oath that the statement is true.
A lawyer, justice of the peace, notary public or other person authorized to
hear oaths must witness the signing and also sign the affidavit to affirm the
authenticity and veracity of the document.
No.
The Tribunal will determine whether the affidavit will be admitted, and how
much weight to give it when compared with other sworn testimony. If another
party objects to the affidavit being admitted as evidence, the Tribunal will
hear arguments about why the
affidavit should or shouldn't be admitted. Even if no other parties object, the
final decision rests with the Tribunal.
An
agreed statement of facts is a list of facts about the case that all parties agree on. For example, the
parties may agree that the complainant was fired on a particular date, or would
have been earning a certain amount of money if he or she had been promoted.
Documents that are not in dispute (for example, a copy of an employment
application form) may also be submitted with the agreed statement of facts,
which is signed by all parties.
An
agreed statement of facts saves time during the hearing because the parties
don't have to present evidence to support these
facts. However, an agreed statement is not mandatory.
In
the questionnaire, the parties are
asked to indicate whether it will be possible to submit an agreed statement of
facts. To determine whether there are any facts that are not in dispute, you'll
need to summarize the facts as you understand them and contact the other party
or parties to determine which, if any, of these facts they will agree to
accept.
The
agreed statement can be submitted at any time up to and including the start of
the hearing.
Also,
during the hearing, a party may tell
the Tribunal that a certain fact is agreed to by all of the parties. The
Tribunal will simply ask the other parties if they do indeed agree, and if so the
fact will become part of the official record.
Also
called a legal argument or legal submission, an argument is a statement that
attempts to persuade the Tribunal to reach a particular conclusion. When a
party presents
The
other category of argument is called the final argument. This is the last part of the hearing. A hearing is usually
divided into two parts. During the first part, the parties present their evidence to prove a set of facts.
When the Tribunal listens to a presentation of evidence, it assesses whether
the witnesses are credible,
whether the documents are authentic and how much weight to give to any piece of
evidence.
During
the second and last part of the hearing, the parties present their final
arguments. In final argument, the parties
explain why, in their opinion, the evidence that has been presented favours
their position. Final argument gives each party an opportunity to explain why,
based on the case law, the facts they
have presented do or do not constitute discrimination within the meaning of the
Canadian Human Rights Act.
Also
see Reply Argument.
A
book of authorities contains copies of the case law and legislation a party
will use to argue a case before the Tribunal. It is usually submitted when a
party makes its final argument. The sections
that support the party's argument are usually highlighted. A book of
authorities must be bound, indexed and divided with tabs. A case that is in the
Tribunal's book of jurisprudence does not have to
be included in full in a party's book of authorities: only the section that
supports the party's argument need be included.
The
Tribunal's book of jurisprudence contains the cases most often referred to in
hearings before the Tribunal. The Tribunal sends a list of these cases to the
parties before the hearing. A case that is
in the Tribunal's book of jurisprudence does not have to be included in full in
a book of authorities: only the section
that supports the argument need be included.
Canadian
Human Rights Act
The
purpose of the Canadian Human Rights Act
is to protect individuals from discrimination and to promote equality of
opportunity. The Act applies to federal government departments and agencies,
federal Crown corporations, chartered banks, airlines, telecommunications and
broadcasting organizations, and shipping and interprovincial transportation
companies. Complaints may relate to discrimination in employment or in the
provision of goods, services, facilities and accommodation that are customarily
available to the public. The Act also prohibits hate messages transmitted by
telephone, computer or the Internet.
The
Act prohibits discrimination on the following grounds:
·
race
·
national
or ethnic origin
·
colour
·
religion
·
age
·
sex
(includes pay equity, harassment,[1]
pregnancy and childbirth)
·
marital
status
·
family
status
·
sexual
orientation
·
disability
(can be mental/physical, includes disfigurement, past or present, alcohol or
drug dependence)
·
conviction
for which a pardon has been granted
Whereas
the Tribunal's role is similar to that of a court, the Canadian Human Rights
Commission has a role similar to that of the police. Like the police, it
investigates complaints — in this instance, complaints of discrimination on one
of the grounds prohibited by the Canadian Human Rights Act.
Some
complaints turn out to be unfounded and are dismissed by the Commission. But
when the Commission believes that further inquiry is warranted and an agreement
between the parties cannot be reached
through conciliation, it refers the case to the Tribunal. The Commission then
takes on a role similar to that of a Crown attorney. When the Commission
appears before the Tribunal, although it may support the complainant's
position, it is not acting as the complainant's lawyer. It argues the case
before the Tribunal on behalf of what it considers the public interest.
Case
law is a generic term that encompasses all earlier decisions of courts and
administrative tribunals, including the Canadian Human Rights Tribunal.
The
person (or group) alleging that she or he has been discriminated against on one
of the grounds prohibited by the Canadian Human Rights Act.
A
court reporter will record everything that is said at the hearing and produce a
transcript of what was said after each day of the hearing. You can either
purchase a copy from the reporter or review all or part of these transcripts at
the Registry.
Cross-examination See Examination.
Several
months after the hearing, the Tribunal will issue its written decision as to
whether the alleged discrimination on grounds prohibited by the Canadian
Human Rights Act occurred. If the Tribunal decides that discrimination did
occur, it will also decide what the remedy should be.
Decisions
from the Tribunal on anything other than the merits of the complaint (e.g., on preliminary matters) are called rulings.
The
Tribunal aims to issue a decision within four months after a hearing, but more
complex cases may take longer to decide. There is no mandatory deadline for a
decision to be issued.
About
24 hours before the decision will be released to the public, the Registry Officer assigned to your case will
call to tell you that the decision is on its way to your home by courier and
e-mail (if possible). The Registry tries to time the
delivery of the decision so that all parties receive it at about the same time.
The decision is normally made available to the public on the Tribunal's Web
site two to three hours later.
Does
it contain orders? The decision contains the Tribunal's analysis of the
evidence presented during the hearing and the law governing human rights. If
the Tribunal decides that discrimination did occur, its decision will also
include an order to the respondent setting out the remedy.
It
is usually the duty of the Canadian Human Rights Commission to see that the
Tribunal's decision is complied with. If the respondent doesn't comply with a
Tribunal order, proceedings in the Federal Court may be necessary.
If
you don't agree with the decision, you have 30 days from the time the decision
was released by the Tribunal to file an application with the Trial Division of
the Federal Court of Canada to have the decision reviewed.
N.B.
Past rulings and decisions issued by the
Tribunal are posted on its Web site (www.chrt-tcdp.gc.ca).
Direct Evidence See Evidence.
Direct Examination See Examination.
Before
the hearing, all parties exchange certain kinds of information in a process
called disclosure. Disclosure prevents surprises at the hearing by ensuring
that all parties know the evidence and arguments that will be put forward. It
allows for a fairer hearing process and prevents delays caused by a party
needing extra time to review evidence he or she was not expecting to be
presented.
Specifically,
disclosure involves serving the other parties
with:
·
a
list of documents in your possession that are relevant to the case, whether or
not you intend to rely on them during the hearing, and including documents you don't plan to disclose because you consider
them privileged
-
with
this list, include copies of all documents in your possession that are relevant
to the case, whether or not you intend to rely on them during the hearing, excluding the documents you consider
privileged
·
a
list of the witnesses you plan to call and a summary of the testimony they will give (see will-say statement)
·
written
reports prepared by expert
witnesses
·
a
brief written summary of the topics you plan to address during the hearing, the
facts you intend to prove and the arguments you plan to
present. The complainant and the Canadian Human Rights Commission must also explain
what remedy they're seeking.
All
documents above (except for actual copies of your documentary evidence) must
also be filed with the Tribunal
along with a letter confirming that you have met the deadline for disclosure.
The
Tribunal sets the deadlines for disclosure. These dates will be in the letter
you receive from the Registry
Officer assigned
to your case about four weeks after you send the Tribunal your completed questionnaire.
The
deadline for disclosure by the complainant is sooner than that required for the
respondent. Usually, the complainant and the Commission are required to
disclose their evidence at least 60 days before the start of the hearing, and
the respondent has until about
30 days before the hearing to provide the required information. This gives the
respondent an opportunity to prepare a response to the material provided in
support of the complaint.
After
the disclosure deadline, any new evidence, witnesses or changes to any of the
information you've disclosed must be served on the other parties as soon as
possible. The Tribunal will not necessarily permit changes or additions to be
made after the deadline, depending on the effect these would have on the
fairness of the hearing.
[magnifying
glass icon] If you fail to disclose a
document, you may not be able to introduce it into evidence at the hearing.
Similarly, you may not be permitted to examine witnesses or raise legal issues
that you have failed to disclose. The Tribunal will allow disclosure after the
stated deadlines only in exceptional circumstances.
Evidence
consists of the documents and witness testimony you present to support the statements you put forward as
facts. Evidence could be an income tax return (to prove lost earnings), a
doctor's testimony (to prove a medical condition) or a personnel file (to prove
that employment ended on a certain date). All evidence that you present at the
hearing must already have been given to (or summarized for) the other parties
during disclosure.
You
present evidence by asking witnesses questions (this
is called examination) and by putting
forward documents. Typically, the Tribunal will accept documents as evidence
only if they have been identified by a witness (ideally the author).
If
you want to submit as evidence documents written in a language other than
English or French, you must have them translated into either official language,
and attach to each document an affidavit from the
translator attesting to the accuracy of the translation.
Each
party presents all of its evidence in turn. This is called direct evidence.
Once you've finished presenting this evidence and closed your case, you usually
can't put forward any additional evidence. However, if one party is permitted by the Tribunal
to put forward evidence that wasn't disclosed, the other will be given the
opportunity to present evidence in response.
Examination
is simply a party (or his or her lawyer) asking questions of a witness under
oath at the hearing. Examination of a
witness can vary from 10 minutes to hours or even days, but usually takes a few
hours. The Tribunal may also ask questions of the witness during examination.
There
are three different kinds of examination: direct examination, cross-examination
and re-examination.
Direct examination is asking
questions of a witness you called at the
hearing. The purpose of direct examination is to provide the Tribunal with
evidence of the facts that make up your case. Direct examination is also the
time to put forward documents, which must be identified by witnesses before
they will be accepted into evidence by the Tribunal
(with the exception of affidavits). Direct
examination is also called examination-in-chief. (If you don't have a lawyer,
you can testify without having someone ask you questions. In these
circumstances, you simply present your testimony from the witness box.) You are
required to put all the evidence you have before the Tribunal at this stage. It
is improper to hold back known evidence and attempt to introduce it later in
the hearing.
Cross-examination is asking
questions of a witness who was called by an opposing party, after that party
has directly examined that witness. There are two purposes for
cross-examination: to cast doubt on the truth or accuracy of what the witness
has said and to flush out additional information that will support your side of
the story.
Re-examination is asking
additional questions of the witness you called, after the other parties have
cross-examined that witness. Re-examination is usually allowed only to clarify
or explain new issues that came up during cross-examination.
An
exhibit is any document, picture or object (for example, a pair of glasses or a
tool from a workplace) put forward as evidence at the hearing. All exhibits,
with the exception of affidavits, must be
identified by witnesses.
Expert Witnesses See Witnesses.
Filing
a document with the Tribunal means delivering (in person or by courier),
mailing or faxing it to the Registry at the following
address or fax number:
Canadian
Human Rights Tribunal
Suite
900 - 473 Albert Street
Ottawa,
Ontario K1A 1J4
Fax:
(613) 995-3484
Final
argument refers to the statements made by each party at the end of the hearing after all the evidence has been
presented. Final argument gives each party an opportunity to explain why the
facts they have presented constitute discrimination within the meaning of the Canadian
Human Rights Act.
The
final arguments of the Canadian
Human Rights Commission and the complainant also include a
description of the remedy they seek, together
with a recap of the evidence that supports this request. The respondent's final argument summarizes
his or her answer to the complaint. It revisits facts that he or she would like
the Tribunal to remember and explains why those facts do not support the
conclusion that discrimination occurred or that the requested remedy is
appropriate.
The
respondent may have acknowledged in some part that his or her actions appear on
their face to be discriminatory. If so, the respondent's final argument may
include an explanation and justification of why, based on the evidence
presented, these actions do not constitute discrimination within the meaning of
the Act, or why his or her actions were justified.
It
is not unusual for the complainant and the respondent to agree about the facts
of the case yet disagree about the conclusion to be drawn from them. Final
argument gives each party an opportunity to refer to human rights cases in
which another tribunal or a higher court assessed facts similar to those in the
case at hand and reached the conclusion that he or she would like the Tribunal
to reach.
Also
see Argument.
The
hearing gives the parties an opportunity to present their evidence and argument to the Tribunal. The
objective of the hearing is to allow the Tribunal to hear the merits of the
case so it can decide whether discrimination occurred. If you are the complainant, the hearing is your chance
to explain why you believe you were discriminated against. If you are the respondent, the hearing is your chance
to dispute the complaint.
The
length of the hearing depends on the complexity of the case. The average length
of a hearing before the Tribunal is 10 days. Usually, the hearing is held from
9:30 a.m. to 5:00 p.m. with a break in the morning, a break for lunch and a
break in the afternoon.
The
Tribunal usually holds hearings in the town or city where the alleged
discrimination took place. The location is often a public building such as a
hotel or conference centre. In larger cities, it is not uncommon for hearings
to be held in a federal courthouse.
In
the questionnaire, the Tribunal names a place where the hearing will be held
and asks the parties whether they agree with the Tribunal's choice of venue.
The
Commission may cover the expenses of the complainant and those of the witnesses
it is calling. It is best to speak to the lawyer for the Commission about what
expenses it may cover. If the Commission is not participating in the hearing,
the complainant is responsible for his or her own costs, as well as those of
his or her witnesses. Complainants may be able to recover their travel and
lodging costs as part of the remedy, but the decision
to reimburse them rests with the Tribunal on a case by case basis. Respondents
must always cover their own expenses and those of their witnesses.
Present
at the hearing are the complainant, the respondent, their respective lawyers,
the lawyer for the Canadian Human
Rights Commission (if the Commission is a party), the various witnesses who will be testifying on
behalf of the parties, the Registry Officer responsible for the case,
the court reporter, interpreters as
necessary, and the member or members of the
Tribunal who will be hearing the case. Other people who may be present at the
hearing include interested parties, the media and
members of the public.
Sometimes
a person or group who is not a party in the case (in other words, not a complainant, respondent or the Canadian Human Rights Commission) may be affected
by the Tribunal's decision, have a very direct interest in the case or be able
to provide the Tribunal with evidence that would otherwise not be available.
This person or group may be allowed to participate in the hearing as an
interested party.
Examples
of interested parties include:
·
a
group that promotes the rights of people with disabilities, if the complaint is
of discrimination on the basis of a disability
·
a
union, if the complainant is a member and has filed a complaint against his or
her employer
A
group or individual that wishes to become an interested party must file a motion with the Tribunal. The
motion must also be served on the other
parties. The motion must explain why the individual or group wants to
participate in the hearing and to what
extent. Submissions from the current
parties will be requested and reviewed by the Tribunal. The Tribunal will
consider the request in the same manner that it deals with motions, and will
issue a ruling on whether the
party may participate and to what extent.
The
Tribunal will arrange for any interpreters, including sign language
interpreters, needed at the hearing. You are entitled to use either English or
French at the hearing and should indicate your preference on the questionnaire. The Tribunal will provide
simultaneous interpretation in English, French or sign language provided that
it has at least 45 days' notice.
You
should also tell the Tribunal as soon as possible (in the questionnaire, if
possible) if you will be calling a witness who will testify in a language other than English or
French, or who requires a sign language interpreter, so that the Tribunal can
arrange for an interpreter to be present at the hearing.
The
Tribunal is composed of a full-time Chairperson and Vice-Chairperson, and up to
13 full- or part-time members who are appointed for terms up to five years.
When a case is referred to the Tribunal, the Chairperson assigns either one or
three members to hear the case. All members take an oath of office prior to
being assigned to their first case. They must also adhere to the principles
established by the Code of Conduct for
Members of the Canadian Human Rights Tribunal.
Short
biographies of the Chairperson, Vice-Chairperson and members are available on
the Tribunal's Web site (www.chrt-tcdp.gc.ca), as are the oath of office and
code of conduct.
Before
or during the hearing, you may want the Tribunal to rule on an issue that is
separate from the merits of the complaint. For example, you may want the
Tribunal to rule on whether a party has to disclose a
piece of evidence. You do this by filing a written request
with the Registry and serving a copy of it on all of the
other parties. This request is called a motion. Any party can file a motion at
any time up to the hearing, and can also
make oral motions to the Tribunal at the hearing. However, you should not delay
filing a motion. Any unreasonable delay may cause the Tribunal to dismiss the
motion.
The
Tribunal will issue instructions, usually by letter, as to how it will deal
with the motion, whether by requesting written submissions, proposing a
telephone conference call or holding a hearing. Usually, whoever filed the
motion will put forward his or her arguments first, followed by the other parties. After all parties
have put forward their arguments, the Tribunal will issue a written ruling. If
a motion is made during the hearing, the Tribunal may, depending on the nature
of the motion, issue an oral ruling.
Is
there a deadline for ruling on a motion? The Tribunal has no deadline for
issuing rulings, but rulings on motions filed before the hearing will usually
be issued before the hearing takes place. For motions made at the hearing, the
Tribunal may issue a ruling immediately after the parties have presented their
arguments, or it may wait until the end of the hearing.
Depending
on the nature of the ruling, you may be able to file a motion in the Trial
Division of the Federal Court of Canada asking the court to review the
Tribunal's ruling. (For more information on Federal Court procedure, it is best
to contact the Court or seek independent legal advice.)
An
oath is a solemn appeal to God or a revered person or object such as a holy
book in witness of a promise to speak the truth. Witnesses before the Tribunal may swear an oath or make a solemn
affirmation. A solemn affirmation is the equivalent to an oath for those
witnesses who do not have religious beliefs, or do not wish to refer to them.
At
the beginning of the hearing all parties are asked if they would like
to make opening statements, which are summaries of what they intend to prove
during the hearing. In an opening statement, you will describe the facts you
intend to prove and the evidence you will present
to prove these facts. Opening statements may also briefly refer to the main
legal principles that a party feels are relevant to the case.
The
Canadian Human Rights Commission usually goes
first, followed by the complainant and then the respondent. Any of the parties can
decide not to give an opening statement. Or the complainant and respondent can
decide to give their opening statements later, when it is their turn to present
their cases. Again, the Commission usually presents its case first, followed by
the complainant and then the respondent.
Interested parties generally make
their opening statements and present their cases after the parties whose interests are most
closely aligned with their own. For example, an interested party who generally
supports the complaint would present its case after the Commission and the
complainant, but before the respondent. Interested parties with no demonstrable
allegiance may simply present last; ultimately, when interested parties present
is up to the Tribunal.
Parties
are the main participants in a case. They include the complainant, the respondent and the Canadian Human Rights Commission.
Also
see Interested Parties.
Any
party may ask the
Tribunal to rule on an issue other than the merits of the complaint (see Motions and Rulings). The Tribunal
may decide that the best way to deal with the issue is to allow both sides to
present evidence and arguments to the Tribunal during what
is called a pre-hearing. A pre-hearing follows the same procedure as the hearing, but instead of considering
the merits of the complaint, it leads to a ruling on the motion only.
Preliminary Matters See Questionnaire and Motions and Rulings.
In
a hearing before the
Tribunal, the respondent is always
considered to be "innocent until proven guilty." The burden is on the
complainant (and the Canadian Human Rights Commission, if it is a party
to the case) to present credible evidence showing that discrimination has
occurred. This is called establishing a prima
facie case.
Once
a prima facie case is established,
the burden of proof shifts to the respondent, who must prove either that the
facts presented by the opposing side are wrong, that the respondent has a reasonable
explanation or that the respondent's behaviour was justified.
A
party may be allowed to
withhold information relevant to the case if the information was revealed in
the context of privileged or special relationships, such as conversations
between lawyers and their clients. Unless this privilege is waived,
conversations and/or documents generated from a privileged relationship may not
have to be disclosed. Documents prepared and communications occurring in
anticipation of litigation before the Tribunal may also be privileged.
A
case-planning questionnaire is included, along with this guide, in the first
package sent to you by the Tribunal, shortly after the Canadian Human Rights Commission refers your case
to the Tribunal. The Tribunal will use the information collected in the
questionnaire to schedule hearing dates and plan
other aspects of the case. If you hire a lawyer, he or she will likely complete
the questionnaire on your behalf.
The
questionnaire asks you to:
•
indicate whether you will be
represented by a lawyer and if so, to provide your lawyer's name and address
•
describe any preliminary
matters (see also Motions and
Rulings),
including questions of law, jurisdiction or procedure that you wish to have
dealt with at the beginning of the hearing
•
estimate how many witnesses, including expert witnesses, you plan to call at the
hearing
•
estimate how many days you'll
take to present your side of the story
•
provide a list of dates during which
you will be available to attend the hearing
•
describe the remedy you will be seeking (complainant and Commission only)
•
indicate whether it will be possible
to submit an agreed statement of
facts
•
indicate whether you wish the hearing
to be conducted in English or French (The Tribunal will provide simultaneous
interpretation — see Interpreters — if required,
provided it has 45 days' notice.)
•
indicate whether you or any of your
witnesses require special accommodation (for example, a sign language
interpreter or a sound system)
The
questionnaire also indicates where the hearing is expected to take place and
asks whether you agree with the Tribunal's choice of venue.
The
deadline for submitting the completed questionnaire will be indicated in the
letter included with the questionnaire in the first package sent to you by the
Tribunal. You will usually have about three weeks to complete and submit the
questionnaire. You file a copy of the
questionnaire with the Registry and serve a copy of the questionnaire
on the other parties.
[document
3 icon] All parties must fill out a record of appearance at the
beginning of the hearing. (If you have a lawyer, he or she will fill out this
form on your behalf.) The Registry
Officer
will bring the form to you. On the form, you must state your name and address,
the witnesses you will call and
what kind of oath or affirmation
each witness prefers to take.
Re-examination See Examination.
The
Tribunal Registry offers administrative support to the Tribunal and provides
liaison between the parties and the member, or panel of members,
hearing a case. When the Commission refers a case to the Tribunal, a Registry Officer is assigned to look after
the administrative details of the case.
Registry
Officers are the point of contact between parties to a case and the Tribunal. A Registry Officer is assigned
to each case that comes before the Tribunal; the name and phone number of this
Registry Officer is in the first package sent to the parties. He or she is the
person to whom you should address any questions, including requests for
assistance when you are in doubt about the Tribunal's procedures. Registry
Officers do not, however, give legal advice.
The
remedy is what the complainant asks the Tribunal
to order the respondent to do. For
example, if the complainant was denied employment as a result of discrimination
by the respondent, the complainant may ask the Tribunal to order the respondent
to hire him or her. The remedy could also entail a change in policies, or a
monetary award to compensate for lost income or expenses incurred as a result
of the discrimination. Section 53 of the Canadian Human Rights Act lists the
remedies that complainants are allowed to ask for. The Commission usually also
seeks a remedy, sometimes a different one from the complainant.
The
party who presents his
or her argument first will
generally be permitted to respond to anything new raised by any of the other
parties during their arguments.
The
person or group against whom the complaint of discrimination was made.
The
Tribunal has set out rules that govern its proceedings. These rules are
provided to the parties in the initial
package sent to them by the Tribunal.
Rulings See Motions and Rulings.
Serving
a document simply means delivering it to someone. Every time you send a
document to someone, you need to send copies to all of the other parties as
well and file the document with
the Registry.
In
a case before the Tribunal, documents may be served in one of the following
ways:
·
by
fax if the document is 20 pages or less;
·
by
ordinary or registered mail, or by courier;
·
in
person; or
·
by
bailiff or process server. (This is usually done only when someone refuses to
be served in one of the other ways.)
In
the event that a dispute arises as to whether a party received service of a document, you will need to have proof
that the document was served. This proof could be:
·
a
letter from the person who served the document confirming that the document was
delivered
·
your
sworn testimony before the Tribunal
·
an
affidavit of service (in
Quebec, a certificate of service)
·
a
solicitor's certificate
·
a
fax printout
·
a
registered mail receipt
·
an
admission or acknowledgment from the party who was served the document
At
any point in the process, the parties to a case may
decide to settle the dispute among themselves instead of seeking a decision
from the Tribunal.
The
Canadian Human Rights Act requires that if all the
parties agree on a settlement before a hearing begins, the agreement must be
referred to the Canadian Human
Rights Commission for approval. The settlement may be made a Court Order for
the purposes of enforcement (see Decision).
Entering
into settlement discussions is not sufficient to halt the process. The Tribunal
will usually only adjourn a scheduled hearing once all of the parties have signed
the settlement agreement. If either the complainant or Commission settles with the respondent, the remaining
party may wish to continue the case against the respondent.
Submission See Argument.
A
subpoena is a legal document that orders a person to appear at the hearing as a witness. It also requires that
person to bring to the hearing any documents or items that he or she owns or
has control over that relate to the complaint.
You
don't need a subpoena for all of your witnesses. You only need a subpoena if
someone is not willing to be a witness at your hearing, or if a witness needs a
legal document to justify his or her absence from work.
You
get a subpoena from the Registry by filing a written request. This
request must include the name of the person you want to call as a witness and
the reasons why you want to call this person as a witness.
The
Tribunal will not automatically give you a subpoena, but will consider your
request and determine whether a subpoena is warranted. If the Tribunal decides
that a subpoena is warranted, it will send you a signed subpoena. You are
responsible for filling it out and serving it on the person you want to call as a witness. Please note
that anyone you serve with a subpoena should have been listed on your witness
list.
[magnifying
glass icon] When serving the subpoena,
you may have to pay the witness certain fees to allow him or her to attend at
the hearing (such as the costs of travelling and staying in a hotel). Witnesses
appearing before the Tribunal are entitled to the same fees and allowances as
witnesses summoned before the Federal Court. You can speak to the Registry
Officer about your obligations for the payment of witness fees.
Statements
made by a witness under oath during a hearing.
The
location where the hearing takes place. The
venue is tentatively chosen by the Tribunal Registrar based on information
contained in the complaint form. The parties are informed of the proposed venue in the case-planning questionnaire and asked whether they
agree. If there is a dispute among the parties, the Tribunal rules on the issue
after hearing the arguments of the parties.
A
will-say statement is exactly what it sounds like: a brief written summary of
what a witness will say at the hearing. You (or your lawyer, if you
have one) will write the will-say statements based on interviews with the
witnesses. Will-say statements are exchanged between the parties as part of disclosure. A will-say statement is
typically no more than a page long and identifies the people, events and
principal documents that will be introduced through the witness's testimony. Witnesses are not required
to strictly adhere to the content outlined in the will-say statement, but it is
expected that they will adhere to the spirit.
For
expert witnesses (see witnesses), it is not enough to merely
provide a will-say statement. Instead, for each expert witness, you must also
provide an expert witness report, detailing what the expert witness will say.
In addition to substantiating the credentials of the expert witness, the report
must lay out the assumptions that are being relied upon as fact and offer a
detailed rationale for the opinion or conclusion put forward. An expert witness
report is a quasi-scholarly work that is apt to cite scientific or other
literature in its reasoning. The Tribunal expects expert witness testimony to
closely mirror the content of the written report.
A
large part of the evidence you will need to
support your case will be the testimony of witnesses —
people who can attest to the truth of the statements you are putting forward as
facts.
You
also need witnesses to identify the documents you plan to present as evidence
at the hearing. The Tribunal
will not generally accept a document as evidence unless a witness has
identified it first (affidavits are an
exception).
All
witnesses must take an oath or make a solemn
affirmation at the hearing.
A
witness who gives evidence in his or her area of expertise is considered an
expert witness. For example, an expert witness could be a doctor who testifies
about a medical condition or an accountant who gives evidence as to lost
revenue. An expert witness does not need to have personal knowledge of the
facts of the case before the Tribunal. Expert witnesses give opinions on facts
that have already been directly proven.
In
addition to a will-say statement, for each expert
witness, you must serve on the other
parties and file with the Registry a longer report that:
·
sets
out the expert's name, address and credentials
·
sets
out the substance of the expert's proposed testimony
·
is
signed by the expert
This
document, called an expert witness report, offers a detailed rationale for the
opinion or conclusion that the witness is being called upon to provide. It lays
out the assumptions that are being relied upon as fact and includes a detailed
rationale for the conclusions reached. An expert witness report is a
quasi-scholarly work that is apt to cite scientific papers or other scholarly
literature in its reasoning.
Before
an expert is permitted to testify at a hearing, the Tribunal must decide
whether the witness is indeed an expert in a given field. The expert's evidence
must also appear to be helpful to the Tribunal in the determination of the
issues. Once the expert has been approved by the Tribunal, he or she is said to
be "qualified" to testify as an expert in the given field.
You
can ask the Registry to give you a subpoena, which will order that
person to attend the hearing.
When
you call a witness, you have to pay him or her a certain amount of money to
cover the costs of coming to the hearing (such as the costs of travelling and
staying in a hotel). Witnesses who appear before the Tribunal are entitled to
the same fees and allowances as witnesses summoned before the Federal Court.
Don't
forget to ask about these costs and to pay them before the witness testifies.
If you don't, the witness does not have to appear at the hearing. If you are a complainant and the Canadian Human Rights Commission is a party to the case, the Commission
may cover these expenses. Complainants may also ask the Tribunal to include
these expenses as part of the remedy, but it is up to
the Tribunal whether to award them or not.