December 15, 2010
Table of Contents
- Agreed Statement of Facts
- Book of Authorities
- Book of Jurisprudence
- Canadian Human Rights Act
- Case Management
- Case Law
- Digital Voice Recording System
- Direct Evidence
- Direct Examination
- Evaluative Mediation
An affidavit is a written, sworn statement that is submitted into evidence at a hearing in place of a witness’ testimony. The other side may cross-examine the person who made the affidavit, or present its own affidavit that describes an opposing version of events. Generally, the person swearing the affidavit should attend the hearing to be available for cross-examination. If the person does not attend and is not subjected to cross-examination, then the Tribunal may not place as much weight on it.
How does one prepare an affidavit?
Normally, you or your lawyer will prepare the affidavit (generally after interviewing the witness) and have it signed by the witness. When signing the affidavit, the witness must swear under oath that the statement contained in it is true. A lawyer, justice of the peace, notary public or other person authorized to receive oaths must witness the signing and also sign the affidavit to affirm the authenticity and veracity of the document.
Agreed Statement of Facts
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 but recommended.
How is an agreed statement of facts put together?
At the first case management conference with the Tribunal, 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 factual assertions they will agree to accept.
Is there a deadline for submitting an agreed statement of facts?
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. If so, the fact may be viewed as having been established.
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 an argument, he or she is attempting to convince the Tribunal that there is, based on his or her interpretation of the facts and law, a particular conclusion that should be reached.
When will I present arguments to the Tribunal?
There are two distinct occasions over the course of the proceedings when you will be invited to present arguments. The first is whenever there is a matter, other than the merits of the complaint that needs to be decided. For example, one party may ask the Tribunal to rule before the hearing begins on a jurisdictional issue (such as whether the Tribunal has the authority to decide the case) or, once the hearing has begun, on a procedural matter (such as whether a particular document should be admitted into evidence). Before the Tribunal makes its ruling on such matters, it always hears from all parties.
The other category of argument is called 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 persuasive 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 supports or favours their version of the facts. Final argument also gives each party an opportunity to explain why, based on the case law, the facts established in evidence do or do not constitute discrimination within the meaning of the Canadian Human Rights Act.
Also see Reply Argument.
Book of Authorities
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 passages 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 passages that support the party’s argument need be included.
Book of Jurisprudence
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 party’s book of authorities. Only the passages that support the party’s 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 all matters within federal jurisdiction such as federal government departments and agencies, federal Crown corporations, chartered banks, airlines, telecommunications and broadcasting organizations, and shipping and inter-provincial 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:
- national or ethnic origin
- sex (includes pay equity, harassment , pregnancy and childbirth)
- sexual orientation
- gender identity or expression
- marital status
- family status
- genetic characteristics
- disability (can be mental/physical, includes disfigurement, past or present, alcohol or drug dependence)
- conviction for which a pardon has been granted
Canadian Human Rights Commission
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, beyond the Commission’s jurisdiction or untimely and are dismissed by the Commission. Others are referred to more appropriate avenues of recourse. But when the Commission believes that further inquiry is warranted and an agreement between the parties cannot be reached through conciliation or mediation, it refers the case to the Tribunal. The Commission then takes on a role similar to that of a Crown attorney. The Commission usually participates in the pre-hearing process before the Tribunal, but not always at the hearing itself. 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 to be the public interest.
To assist the parties in meeting their pre-hearing obligations (such as disclosure of documents and witnesses, and identification of undisputed facts), and to deal with other issues that may arise in preparation for the hearing of the complaint, the parties are required to participate in case management conference calls with aMember of the Tribunal. The Registry Officer assigned to the file attends the conference calls. The case management calls are recorded by Digital Voice Recording system.
Case management conference calls normally result in directions being given by the member requiring the partiesto complete their various pre-hearing obligations by specific dates. This case management process helps the parties focus on completing the pre-hearing phase in a timely manner and sometimes helps reduce the time required for the hearing itself.
After each case management conference call, a summary of the discussion that took place and the directions given by the member are confirmed by the Registry Officer in writing to the parties.
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.
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.
When and how is the decision issued?
The Tribunal strives 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 being sent to you 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.
What are the main parts of a decision?
Does it contain orders? The decision contains the Tribunal’s analysis of the evidence presented during the hearing and the legal issues raised by the parties. If the Tribunal decides that discrimination did occur, its decision will also include an order to the respondent setting out the remedy.
How is the decision enforced?
The Canadian Human Rights Commission, whether or not it participated at the hearing, may on occasion examine whether the Tribunal’s decision was complied with. If the respondent doesn’t comply with a Tribunal order, proceedings in the Federal Court may be necessary.
What if I don’t agree with the decision?
If you don’t agree with the decision, you have 30 days from the time the decision was first communicated to you by the Tribunal to file an application with the Federal Court to have the decision reviewed.
N.B. Past rulings and decisions issued by the Tribunal are posted on the Tribunal’s Web site (www.chrt-tcdp.gc.ca).
Digital Voice Recording System
A Digital Voice Recording (DVR) system is computer software that is used to record case management conference calls as well as the hearing. An electronic copy of the DVR recording is made available to parties after the hearing is concluded.
Before the hearing, all parties exchange certain kinds of information in a process called disclosure. Disclosure prevents surprises at the hearing by ensuring that each party knows the evidence and arguments that will be put forward by the other parties. 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 (seesigned witness statement and affidavit)
- written reports prepared by expert witnesses
- a statement of particulars, a brief written summary of the topics you plan to address during the hearing, the facts you intend to prove and thearguments 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 disclosure) must also be filed with the Tribunal.
When do I disclose these things?
Deadlines for disclosure are set by the Tribunal and communicated to the parties shortly after mediation has either been declined by one or more of the parties or has failed to resolve the complaint.
The Tribunal encourages the parties to complete their disclosure in the shortest possible time, which can sometimes mean within a month. The deadline for disclosure by the complainant and the Commission is sooner than that required for the respondent. This gives the respondent an opportunity to prepare a response to the material provided in support of the complaint. The complainant and the Commission are then given a short time to reply if they intend to raise additional facts or issues to refute the case disclosed by the respondent.
After the disclosure deadline, any new documents 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.
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, raise legal issues or seek a remedy that you have failed to disclose. The Tribunal will allow disclosure after the stated deadlines only in exceptional circumstances.
During an evaluative mediation the Tribunal Member will evaluate the relative strengths and weaknesses of the positions advanced by the parties and may provide the parties with a non-binding opinion as to the probable outcome of the inquiry.
Although the parties may have already participated in some form of process designed to negotiate a resolution of the complaint before it was referred to the Tribunal, the Tribunal offers to the parties an opportunity to participate in a distinct form of mediation not offered by the Commission. Evaluative mediation before the Tribunal is voluntary and therefore requires the agreement of all parties and the Tribunal.
Frank and open discussions of issues surrounding the complaint are important factors for helping resolve the complaint. All information exchanged during mediation is therefore treated as strictly confidential by the parties and their representatives unless disclosure is otherwise required by law. With the exception of communications between the parties and/or their legal counsel or representatives, no reference can be made to information exchanged, statements made or actions taken during mediation. Oral or written statements made within the scope of the mediation process are made without prejudice; they cannot be received into evidence before the Tribunal pursuant to s. 50(4) of the Canadian Human Rights Act, nor can they be used as evidence in any other judicial or administrative proceeding. Undertakings of confidentiality and agreement to the mediation process are usually signed by the parties at the outset of the mediation.
How long is the mediation process and when and where would it occur?
The mediation process is normally limited to one day. To avoid delay of the hearing of the complaint, mediation usually occurs within an eight-week period from the Tribunal’s initial contact with the parties. The location of the mediation is determined by the Tribunal based on information contained in the complaint form; however, agreement of the parties to a different location may also be considered.
What if the mediation resolves the complaint?
If the negotiation results in the parties signing minutes of settlement, the Tribunal will close its file after thesettlement has been approved by the Canadian Human Rights Commission, in accordance with the Canadian Human Rights Act. If the parties agree to a settlement that will be signed on resolution of certain minor issues or undertakings, the Tribunal process will continue but the dates scheduled for the hearing or case management call may be moved to a later date while the Tribunal awaits receipt of signed Minutes of Settlement.
What if the mediation does not resolve the complaint?
Should mediation not result in a resolution of the complaint, the Registry Officer will contact the parties to arrange for a case management conference call with a Tribunal member within the following two weeks. The parties are required to follow the disclosure schedule provided to them by the Tribunal.
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.
How do I present evidence at the hearing?
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 (e.g., the author, the addressee).
Do I have to translate the documents I will present as evidence?
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.
How many opportunities do I have to present evidence?
Each party presents all of its evidence in turn. This is called evidence-in-chief. Once you’ve finished presenting this evidence and closed your case, you generally can’t put forward any additional evidence. However, there are certain exceptions. First, you have the right to cross-examine any witness called by the other side during their case. Furthermore, if one party is permitted by the Tribunal to put forward evidence that wasn’t disclosed, the other will often be given the opportunity to present additional evidence in response. Finally, after the closing of therespondent’s case, the Canadian Human Rights Commission and the complainant may present reply evidence to address any new facts and issues raised by the respondent (that could not have been anticipated).
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 allow your witnesses to provide the Tribunal with evidence of the facts within their knowledge 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 stand.) 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. Also, during direct examination, it is important not to ask leading questions that contain the answer you are trying to elicit from the witness. Rather, use open-ended questions. For example, instead of asking: “Did you enter the room at 9:00 o’clock?,” ask “At what time did you enter the room?”
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. Leading questions are permitted in cross-examination.
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 a witness.
Filing a document with the Tribunal means delivering (in person or by courier), mailing, faxing or e-mailing it to theRegistry at the following address or fax number:
Canadian Human Rights Tribunal
240 Sparks Street, 6th Floor West
Ottawa, Ontario K1A 1J4
Fax: (613) 995-3484
Final argument refers to the statements made by eachparty at the end of the hearing after all the evidence has been presented. Final argument gives each party an opportunity to explain why the evidence presented constitutes, or does not 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 explains why the requested remedy is inappropriate, again taking into account the evidence. A party’s final argument highlights facts that he or she would like the Tribunal to take note of and suggests why, based on the law, those facts do, or do not, support the conclusion that discrimination occurred.
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 and the applicable legal principles, 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 legal conclusion to be drawn from them. Final argument gives each party an opportunity to refer to earlier decisions dealing with allegations of discrimination where 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.
How long will the hearing be?
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.
Where will the hearing be held?
The Tribunal usually holds hearings in the town or city where the alleged discrimination took place. The location is usually in a formal hearing room and/ or conference room.
The Tribunal will inform the parties of the venue.
The hearing isn’t being held where I live. Do I have to pay the costs of travelling and staying in a hotel?
Generally speaking, the complainant is responsible for his or her own costs, as well as the costs of his or her witnesses. In some instances, however, the Commission may choose to cover the expenses of the complainant. It is best to speak to the lawyer for the Commission about what expenses it may cover. The Commission is responsible for the expenses of those witnesses it is calling (witnesses who may be helpful to the complainant’s case).
If the Commission is not participating in the hearing, the complainant is responsible for his or her own costs, as well as the costs of his or her witnesses.
Complainants may be able to recover their travel and lodging costs as part of the remedy, if their complaint is found to be substantiated, 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.
Who will be at the hearing?
Present at the hearing are the complainant, the respondent, their respective lawyers, the lawyer for theCanadian Human Rights Commission (if the Commission is participating), the various witnesses who will be testifying on behalf of the parties, the Registry Officer responsible for the case, the court reporter (if required), 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.
While the Tribunal may accept hearsay evidence, the weight, if any, that it gives to such evidence will be up to the Tribunal. Evidence of what a witness directly saw, heard or experienced is generally given greater weight because it is given under oath, and the witness may be cross-examined on his or her ability to observe the event. An example of hearsay evidence may be: a witness says "John told me Cathy fell and hurt her ankle." Since the witness did not see Cathy fall and hurt her ankle, the statement is hearsay evidence to the fact that Cathy fell and hurt her ankle. A Tribunal will give less weight to this evidence than if Cathy had testified about what happened to her.
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
How does a person or group become an interested party?
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 other 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 rulingon whether the proposed interested 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 as early as possible, or when responding to the Tribunal’s letter. 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 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 (who may be appointed to terms of up to seven years), and up to 13 other 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 member or a panel of 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 the other members are available on the Tribunal’s Web site (www.chrt-tcdp.gc.ca), as are the oath of office and code of conduct.
Minutes of Settlement
For proceedings before the Canadian Human Rights Tribunal, minutes of settlement is the same as settlement agreement (see settlement).
Motions and Rulings
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 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.
What happens after I’ve filed a 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. Rulings on motions filed before the hearing may be issued before the hearing takes place or they may be deferred to the end of the hearing. 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.
What if I don’t agree with the ruling?
Depending on the nature of the ruling, you may be able to file an application in the Federal Court asking it 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. Making an intentionally false statement under oath (or solemn affirmation) has serious legal consequences.
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, if it is appearing at the hearing, followed by thecomplainant and then the respondent. Any of the parties can decide not to give an opening statement. Alternatively, the respondent (and the complainant, in cases where the Commission is participating) can decide to give their opening statements later, when it is their turn to present their evidence.
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. Ultimately, the order in which interested parties present their case is up to the Tribunal.
Parties are those participants in a case who have the right to lead evidence and argument before the Tribunal. They include the complainant (the person who filed the complaint), the respondent (the person against whom the complaint was made) and the Canadian Human Rights Commission.
Also see Interested Parties.
Post-Disclosure Evaluative Mediation
The post-disclosure evaluative mediation is similar to the evaluative mediation but is offered by the Tribunal after disclosure of the documents by the parties. It usually takes place two weeks before the scheduled hearing.
Also see Evaluative Mediation.
A party may feel that certain matters need to be resolved before the Tribunal can decide on the validity of the complaint. These matters are therefore often raised on a “preliminary” basis, that is, before the commencement of the hearing. While parties are encouraged to raise matters of concern promptly, the Tribunal reserves the right to deal with them at such time as it deems appropriate.
Also see Motions and Rulings.
Prima Facie Case
In a hearing before the Tribunal, the burden is on thecomplainant (and the Canadian Human Rights Commission, if it is a participant at the hearing) to present evidence covering the allegations in the complaint. If the evidence is believed to be sufficient to justify a decision in his or her favour, in the absence of an answer from the respondent, 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 that either 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 is considered privileged in law. Privileged information includes communications between lawyers and their clients for the purposes of seeking or receiving legal advice. Unless the privilege is waived, conversations and/or documents of this nature generally do not have to be disclosed. Documents prepared and communications occurring in anticipation of litigation before the Tribunal may also be privileged. Finally, written or oral communications occurring within the context ofsettlement discussions (including the Tribunal’s mediation process) are regarded as privileged and not subject todisclosure (nor can they be presented as evidence).
Upon the referral of a complex case to the Tribunal, the Chairperson may assign a member to act as a Process Mediator. Process Mediation is used in complex cases : i.e. cases that involve large numbers of parties, challenges to legislation, or the compilation of a potentially large evidentiary record. It helps parties to move towards a fair and efficient hearing. It also helps parties to prevent and resolve procedural disputes that often arise during the pre-hearing stage. The Process Mediator will utilize informal means of dispute resolution with a view to obtaining agreement among the parties on such items as:
- the facts and issues in dispute and those not in dispute;
- the drafting of an Agreed Statement of Facts;
- the presentation of evidence at the hearing with a view to efficiency and fairness;
- as well as:
- the scope of documentary disclosure;
- the determination of claims of privilege;
- the identification and naming of parties;
- the identification of witnesses, including expert witness and the disclosure of their anticipated testimony, credentials, and area of expertise;
- the presentation of objections;
- any special arrangements pertaining to the hearing, including venue, language of proceedings, and language interpretation.
Process mediation is confidential and can only be conducted with the consent of all parties.
Because the Process Mediator may often gain access to privileged information from one or more of the parties, the Process Mediator will not be assigned to adjudicate the case without the unanimous consent of the parties.
NOTE: Process Mediation is similar to Evaluative Mediation and Post Disclosure Evaluative Mediation in that it is confidential, voluntary, and does not result in a formal decision by the Tribunal. However Process mediation differs from Evaluative Mediation and Post Disclosure Evaluative Mediation because it is not focused on settling the entire complaint; instead it aims to resolve the procedural disputes that often delay the holding of a hearing and to move the parties to agreement resulting in an efficient and fair hearing.
It is possible in some cases for parties to participate in Process Mediation, as well as in Evaluative Mediation and Post-Disclosure Evaluative Mediation.
Record of Appearance
All parties must fill out a Record of appearance prior to the commencement 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. The record of appearance is then returned to the Registry Officer.
The Tribunal Registry offers administrative support to the Tribunal and provides liaison between the parties and themember, 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, e-mail address 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 employment policies, or a monetary award to compensate for lost income, hurt feelings, reckless acts 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. Sections 54 and 54.1 impose certain limitations on the Tribunal’s remedial powers. When it participates, the Commission usually also seeks a remedy, which sometimes may be different from the complainant’s.
The party who presents his or her argument first will generally be permitted to respond to anything new (and unforeseeable) raised by any of the other parties during their arguments.
The person or group against whom the complaint of discrimination was made.
Rules of Procedure
The Tribunal has set out rules that govern its proceedings. They can be viewed online at www.chrt-tcdp.gc.ca/procedures/rules-of-procedure-en.html
See Motions and Rulings.
Serve, Serving (Service)
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 of the Tribunal. Note, however, that the actual production of disclosure documents is not to be filed 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 electronic mail;
- 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, or appears to be avoiding service.)
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, in which you state that you served the document
- 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 with 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 registered with the Federal Court for the purposes of enforcement (see Decision).
Entering into settlement discussions is not sufficient to halt the Tribunal process. The Tribunal will usually only adjourn a scheduled hearing once all of the parties have signed the settlement agreement. If the Commission settles with the respondent, the complainant may still continue the case against the respondent.
Signed Witness Statement
A signed witness statement is a statement that contains what the witness will be testifying to at the hearing. It should contain direct observations of what a witness saw, heard, or experienced. It should not contain hearsay evidence (see definition). Unless the witness is being proposed as an expert witness, it may not contain opinions. (Opinion evidence refers to evidence of what the witness thinks, believes, or infers in regard to facts, as distinguished from personal knowledge of the facts themselves. The general rule is that a witness is supposed to testify as to what he or she observed and not to make any inference or judgment of what was observed. Expert evidence is an exception to this rule.)
A signed witness statement is submitted into evidence at a hearing in conjunction with a witness' testimony in chief. The other side may cross-examine the witness who made the statement at the hearing on the statement. You must give the other parties a copy of the signed witness statement as part of your disclosure.
What is the difference between a signed witness statement and an expert witness report?
For expert witnesses (see witnesses), it is not enough to merely provide a signed witness statement. Instead, for each expert witness, you must also provide an expert witness report, detailing what the expert witness will say. 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 may cite scientific or other literature in its reasoning. The Tribunal expects expert witness testimony to closely mirror the content of the written report.
In addition, you must provide the credentials of the expert witness and the area of expertise of the proposed expert.
Statement of Particulars
A statement of particulars is a description of the material facts that the party seeks to prove in support of his or her case, the party’s position on the legal issues being raised and the relief being sought (In the case of the respondent, the relief sought is generally the dismissal of the complaint). The statement of particulars should also include a list of relevant documents in the party’s possession and summaries of the anticipated testimony of the party’s witnesses.
Is there a deadline for submitting a statement of particulars?
Dates for the filing of particulars, if required, are established and fixed by the Tribunal in a confirmation letter sent the parties at shortly after the complaint is referred to the Tribunal or after mediation has either been declined by the parties or did not resolve the complaint.
A subpoena is a legal document that orders a person to appear at the hearing as a witness. A subpoena duces tecum 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.
How do I get a subpoena, and what do I do with it?
You obtain a subpoena from the Registry of the Tribunal byfiling 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.
When serving the subpoena, you are obliged to pay the witness certain fees to allow him or her to attend at the hearing (such as the costs of traveling 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. The covering letter sent to you with the subpoena explains your obligations regarding the payment of witness fees, or you may speak to the Registry Officer prior to serving the subpoena.
Statements made by a witness under oath (or solemn affirmation) during a hearing.
The location where the hearing takes place. The venue is determined based on information contained in the complaint form and is decided by the Tribunal. If there parties are in disagreement, the Tribunal rules on the issue after hearing the arguments of the parties.
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.
What is an expert witness?
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.
For each expert witness, you must serve on the other parties and file with the Registry a detailed 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, 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 the relevant field. The expert’s evidence must also appear to be necessary for 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 about the issues identified.
What if someone refuses to be a witness?
You can ask the Registry to give you a subpoena, which will order that person to attend the hearing. Note, however, that you generally cannot use a subpoena to force a person to provide expert opinion evidence.
Who covers the costs of witnesses?
When you call a witness by way of a subpoena, 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 traveling 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 acomplainant and the Canadian Human Rights Commission is participating in the case, the Commission may choose to cover these expenses for certain witnesses. It is important to inquire about this with the Commission’s counsel beforehand.
Note also that the party calling an expert witness is responsible for all costs relating to the production of the expert’s report and time spent in giving testimony.
 Harassment applies to all prohibited grounds, not just sex.