Policies and Practice Directions

Table of Contents

Policy on Access to The Canadian Human Rights Tribunal (CHRT) Official Record

May 1st, 2020

NOTICE

The Tribunal has developed a Policy on Access to the Canadian Human Rights Tribunal (CHRT) Official Record, which takes effect immediately. The objectives of this policy are to set out the principles governing access to CHRT official records and to ensure the effective management of documents contained in such records. Though the Policy is already in effect, the Tribunal will examine with great interest any comment it may receive, and is open to the future modification of the policy, if necessary. To submit any comment, suggestion or question, please send an e-mail to: CHRTrules-TCDPregles@chrt-tcdp.gc.ca

Practice Direction: Request to participate as an interested person

The Canadian Human Rights Tribunal is committed to the fair, just and efficient resolution of proceedings before it. This Practice Direction provides guidance to participants in Tribunal proceedings. It is not a rule within the meaning of the Tribunal’s Rules of Procedure.

Who are the parties at the Tribunal?

The complainant is the person who made the complaint of discrimination. Sometimes there is more than one complainant. The respondent is the person or organization that must respond to the complaint. Often there is more than one respondent.

The Canadian Human Rights Commission represents the public interest and is always a party. The Canadian Human Rights Commission may decide not to participate in the proceedings.

What is an interested person?

Sometimes, a complaint raises issues which may affect other people or organizations. When that happens, the Tribunal may allow them to participate in the hearing as “interested persons.”

What does the Tribunal consider when deciding a request to participate as an interested person?

The Tribunal takes a flexible approach to requests to participate as an interested person and considers each request on a case-by-case basis. See Letnes v. Royal Canadian Mounted Police, 2021 CHRT 30; Attaran v. Citizenship and Immigration Canada, 2018 CHRT 6, which set out the test the Tribunal applies when deciding a request.

A person or organization may be allowed to participate as an interested person if it is affected by the proceedings and can assist the Tribunal in making its decision. An interested person should offer a different perspective from the parties. This is explained in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 11.

Making a request to participate as an interested person

You must make a motion to participate as an interested person using Rule 27 of the Rules of Procedure. In the motion you must tell the Tribunal:

  • How you or your organization is affected by the issues raised by the complaint.
  • How you can help the Tribunal in making its decision.
  • How your perspective, knowledge or expertise is different from the parties.
  • How you want to participate. For example, do you only want to provide written argument, present evidence or question witnesses?

You must serve the Notice of Motion on all the parties and file it with the Tribunal as required by Rule 26.

If the Tribunal grants your request, it will issue an order. The order will describe how you may participate in the hearing.

Questions? Please contact the Registry Office at registry.office@chrt-tcdp.gc.ca.

Practice Direction: How to summons a witness

The Canadian Human Rights Tribunal is committed to the fair, just and efficient resolution of proceedings before it. This Practice Direction provides guidance to participants in Tribunal proceedings. It is not a rule within the meaning of the Tribunal’s Rules of Procedure.

What is a summons?

A summons is a legal document that orders a person to attend a Tribunal hearing. A summons can also require a witness to bring specified documents or things to the hearing.

Do I need a summons?

Each party is responsible for making sure their witnesses come to the hearing on the date and time they are required to testify. The Tribunal is not responsible for ensuring that witnesses attend the hearing.

If you are concerned a witness may not come to the hearing or the witness needs a summons to be absent from work, school or another responsibility, ask the Tribunal for a summons.

A witness can agree to come to the hearing without being summonsed. However, if a witness who was not summonsed fails to attend, the hearing will proceed.

Do I need witnesses?

The Tribunal Member will discuss what witnesses you may need and explain the procedure for summoning witnesses at a Case Management Conference Call. The Member will help plan when the witness needs to attend the hearing.

When should I request a summons?

Ask for a summons as soon as possible after the hearing is scheduled, but no later than 30 days before the first day of hearing. The Tribunal may accept a late request if there are special circumstances.

How do I request a summons?

A Request for Summons form is available from the Registry Office at registry.office@chrt-tcdp.gc.ca.

If you want the witness to bring documents or physical things to the hearing, you must provide a list of everything you want on the Request for Summons form.

The Tribunal does not grant every request for a summons. If there is a question about whether the witness has evidence relevant to the hearing or the summons is being sought for an improper purpose, the request may be dealt with at a Case Management Conference Call.

How do I serve the summons?

Serve the summons on the witness by:

  • serving it in person.
  • hiring someone to serve it (sometimes called a process server).
  • having another adult serve it in person.

Be prepared to prove the summons was served correctly. If you cannot prove this and the witness does not appear, the hearing may proceed without hearing the witness’s evidence.

The summons must be served as soon as possible. Ideally, the summons should be served no later than 30 days before the hearing begins or on the day the witness is required to come to the hearing to testify.

Do I have to pay the witness?

To be an enforceable summons the witness must be paid the correct attendance fee and allowances. This includes a basic travel allowance when attending an in-person hearing or when required to travel to participate in an electronic hearing. It may also include an allowance for overnight stays and meals. The payments are the same as payments to witnesses appearing before the Federal Court and are found here: Federal Courts Rules, Tariff A, section 3.

How do I prove I served the summons?

Make a record of when, where and how the summons was served. If you did not serve it yourself, the person who did serve it must confirm when, where and how they served it and explain how they know it was given to the witness (for example, the process server asked for identification). Make a record of how you calculated and paid the required attendance fee and allowances.

What if the witness does not come to the hearing?

The summons is an order of the Tribunal. If the witness does not come to the hearing after being properly served, they may be subject to punishment by the Federal Court.

How do I request alternative arrangements for a witness?

Tell the Registry Officer as soon as possible if a witness requires any alternative arrangements or accommodation based on a Canadian Human Rights Act protected ground to testify. Include this information on the Request for Summons form where possible.

Questions? Contact the Registry Office at registry.office@chrt-tcdp.gc.ca.

Practice Direction: Requesting an adjournment or a stay

The Canadian Human Rights Tribunal is committed to the fair, just and efficient resolution of proceedings before it. This Practice Direction provides guidance to participants in Tribunal proceedings. It is not a rule within the meaning of the Tribunal’s Rules of Procedure.

What are adjournments and stays of proceedings?

An adjournment pauses or stops a hearing temporarily. A stay of proceedings, sometimes called an abeyance, stops the hearing for a set time or indefinitely.

What does the Tribunal consider when deciding a request to adjourn or to stay a hearing?

The Tribunal must conduct proceedings quickly and informally, while still being fair. In deciding whether to adjourn or stay a hearing, the Tribunal considers the fairness to the parties as well as how the request will affect its obligation to decide matters in a timely way. Although the parties’ consent is a factor in its decision, the Tribunal decides whether to adjourn or stay and, if so, on what terms.

In deciding the request, the Tribunal will also consider:

  • When the request was made. Last-minute requests are a significant impediment to timely and efficient hearings and use of adjudicative resources.
  • The reasons for and the length of the requested adjournment.
  • Whether there are related ongoing proceedings in another tribunal or in a court.
  • Whether the case has been adjourned before and whether it was adjourned for the same reason.
  • Whether there are any exceptional circumstances supporting the request. For example, there is a death in a party’s immediate family, a key witness is too ill to attend, severe weather prevents travel or access to internet.
  • Whether there is a risk that evidence may be lost or that witnesses may no longer be available to testify if the request is granted.
  • The fairness of granting or refusing the request on all parties.

A stay will only be granted in exceptional cases. The following Tribunal decisions are examples of how the Tribunal has decided requests for stays.

  • Choudhary v. Greg Scott and Kinistin Saulteaux Nation, 2022 CHRT 28
  • Bailie et al. v. Air Canada and Air Canada Pilots Association, 2012 CHRT 6 at para 22
  • Hughes v. Transport Canada, 2020 CHRT 21 at para 20
  • Canadian Association of Elizabeth Fry Societies and Acoby v. Correctional Service of Canada, 2019 CHRT 30 at para 14

How do I request an adjournment or stay?

As soon as possible after realizing you need an adjournment or a stay, you must consult all the other parties and ask whether they agree to your request.

Make your request by Notice of Motion, serve it on all parties and file it with the Tribunal as required by the Tribunal’s Rules of Procedure. This is Rule 26 in the CHRT Rules of Procedure and Rule 15 in the Rules Respecting Pay Equity. The motion must explain:

  • what you want the Tribunal to do—adjourn or stay the hearing
  • why you want the adjournment or stay
  • how long you want the hearing adjourned or stayed
  • whether the other parties agree to your request

The other parties can respond to the request. The Tribunal may:

  • decide the request based on the written notice and any response, or
  • hold a hearing to listen to your arguments and then decide the request.

In urgent situations, for example a sudden illness or a death in the family, email the Tribunal as soon as possible explaining why you need the adjournment and for how long. Copy the other parties on your email where possible.

I am trying to resolve the complaint with the other parties. Can I ask for an adjournment?

If you are trying to settle the complaint with the other parties, the Tribunal may grant an adjournment if it believes it would facilitate an agreement. It would do so only in exceptional cases and for a limited time.

Make a written request from all parties setting out:

  • what steps you intend to take to settle the complaint and a schedule with dates for each step
  • how long you want to adjourn
  • report back dates—you must agree to keep the Tribunal informed about your progress

The Tribunal may want to speak to you and the other parties during the adjournment. If the Tribunal thinks that not enough progress is being made, it can make further directions or cancel the adjournment. That does not prevent you from continuing to try to settle.

Questions? Contact the Registry Office at registry.office@chrt-tcdp.gc.ca.

Practice Direction: Requests to withdraw a complaint

The Canadian Human Rights Tribunal is committed to the fair, just and efficient resolution of proceedings before it. This Practice Direction provides guidance to participants in Tribunal proceedings. It is not a rule within the meaning of the Tribunal’s Rules of Procedure.

What does withdrawing a complaint mean?

Withdrawing a complaint means that the inquiry before the Tribunal ends and is discontinued.

Who can withdraw a complaint?

Only the complainant (the person who filed a complaint at the Canadian Human Rights Commission) can withdraw their complaint. A complainant’s legal counsel/authorized representative may make the request to withdraw on behalf of the complainant.

When can I withdraw my complaint?

A complaint can be withdrawn any time before the Tribunal issues its final decision. This includes withdrawing the complaint during mediation.

How do I withdraw my complaint?

Contact the Tribunal at registry.office@chrt-tcdp.gc.ca and ask to be sent a Request to Withdraw form. Return the completed form to the Tribunal. Remember to include the Tribunal’s file number(s) and the complete title of the complaint [complainant name(s) v. respondent name(s)] on the form. You must also send the completed form to the other parties to the complaint or their legal representative. If the Canadian Human Rights Commission participated in the Tribunal inquiry, you must also send Canadian Human Rights Commission counsel a copy.

What happens next?

The Tribunal will let you know that it received your request. If you are the only complainant and you have withdrawn your complaint against all the respondents, the Tribunal will close its file and the inquiry into your complaint is discontinued. The Tribunal will write to you and the other parties confirming the withdrawal and discontinuing of the inquiry.

The public may ask to access the Tribunal’s record of a withdrawn complaint. See the Tribunal’s Policy on Access to the Official Record for more information about this process.

What if there are other complainants?

If there are other complainants, the Tribunal’s inquiry into their complaints continue. As you are no longer a complainant, you do not have the right to participate in the inquiry. Any party may ask you to be a witness for them.

What if I only withdraw against some, but not all, respondents?

If you withdraw your complaint against some, but not all, respondents, the inquiry into your complaint against those respondents ends and the inquiry into the remaining respondents proceeds.

Can I change my mind about withdrawing a complaint?

No. Once a complaint is withdrawn, the Tribunal’s inquiry into it is discontinued and the Tribunal’s file is permanently closed.

Questions? Contact the Registry Office at registry.office@chrt-tcdp.gc.ca.