A Guide to Preparing for a Hearing at the Human Rights Tribunal of Ontario Draft

A Guide to Preparing for a Hearing at the Human Rights Tribunal of Ontario Draft

HUMAN RIGHTS LEGAL SUPPORT CENTRE

Guidebook 2

Revised: February 2013

APPLICANT’S GUIDE TO PREPARING FOR A HEARING AT THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

This is general information only. It is not legal advice about your situation. This publication is not a substitute for a lawyer’s research, analysis and judgment. The information contained in this guidebook is reliable as of the date of publication. You should be aware that the law and procedures under the Human Rights Code and at the Human Rights Tribunal of Ontario are subject to change without notice.

Introduction

Some Important Terminology to Get You Started

What if I am dealing with a Summary Hearing?

Can I Resolve My Case Before a Hearing?

what are the advantages of resolvingmy application at mediation?

What is the Purpose of a Hearing?

What Will I Have to Do at the Hearing?

Do I Need a Lawyer at My Hearing?

How Can I Get Ready Before My Hearing?

What Will Happen the Day of the Hearing?

When Should I Expect A Decision?

What Else Should I Know?

Where can I get more information?

Introduction

This Human Rights Legal Support Centre (HRLSC) guidebook is intended to help you represent yourself at a hearing before the Ontario Human Rights Tribunal (Tribunal). If you have a human rights claim and have filed an Application at the Tribunal, this guidebookwill help you prepare the presentationof your case. The guidebook includes a general overview of the Tribunal’s hearing process andimportant information about what steps you should take in order to be as preparedas possible for your hearing.

There are two things to note before you begin to read the guidebook. First, the information contained in this guidebook is not a substitute forreading Ontario’sHuman Rights Code(Code) and the Tribunal’s Rules of Procedure. It is very important to review both the Code and the Rules of Procedure before your hearing. You can find theHuman Rights Codeat the government’s e-Laws web site. The Tribunal’sRules of Procedure can be found at Rules of Procedure

Second, this guidebook is about preparing for your hearing and not about preparing your forms for the Tribunal such as the Application or your Reply. For information about how to prepare your Application to the Tribunal and/or your Reply, you can review the Applicant’s Guideon the Tribunal’s web site.

This guidebook is not about the Tribunal process called a Summary Hearing. It is about the process for a “full” hearing– one at which the Tribunal hears witnesses and decides whether or not discrimination occurred in your case. A summary hearing is a shorter preliminary process in which the Tribunal’s goal is to decide whether your application is supported by enough evidence to hold amediation or a full hearing. If you are reading this guidebook because a Respondent has requested a summary hearing, or the Tribunal has scheduled one, refer to the section below titled “What if I am dealing with a Summary Hearing?”.

Some Important Terminology to Get You Started

Any legal proceeding uses words and terms that you may not be familiar with and that can be hard to understand. The human rights application process is no exception. Both the Code and the Tribunal’s Rules use language in a way that may not be familiar to you.However, the Tribunal process is also designed to be accessible and understandable to self-represented applicants.

The following are some terms that you will come across in this guidebook and in your dealings with the Tribunal. As you go through this guidebook, you will see that other common terms are also defined for you.

Ontario’s Human Rights Code: The law in Ontario that protects people from discrimination and harassment at work, in housing, in the receipt and delivery of goods, facilities, services, and contracts, and with regard to membership in unions, trade or vocational associations. You can find the Code at e-laws: Human Rights Code

Human Rights Tribunal of Ontario: If you think that you have experienced discrimination under Ontario’s Code, the Tribunal is the place where you can file an application seeking a remedy. The Tribunal's purpose is to resolve, through either mediation or adjudication, applications about discrimination under the Code.

Tribunal Adjudicator: The Tribunal has part-time Members and full-time Vice Chairs who are appointed by the Ontario Government to conduct mediations and hearings. The Members and Vice Chairs act as adjudicators (i.e. judges) and have the authority to decide if discrimination has occurred and to order a remedy. See section below: What is a Remedy?

Grounds of Discrimination: The Code prohibits discrimination and harassment on any of the following grounds: of race, colour, ancestry, place of origin (where you were born), ethnic background, citizenship, creed (religion), sex, disability, sexual orientation, age, marital or family status, receipt of public assistance (in relation to housing only), or record of offences (in relation to employment only).

Rules of Procedure:The rules issued by the Tribunal setting out how Code applications will proceed. The Introduction to the Rules states that thepurpose of the Rules is to provide an open and accessible process and to allow for fair, just and expeditious proceedings. They talk about matters such as deadlines, how documents must be delivered, and how the Tribunal will deal with various matters that arise during the course of proceedings. It is important to read the Rules and be familiar with them.

Application: The initial document that begins the Tribunal’s process. The Application is where you explain what happened to you, why you believe it is discrimination and what you want the Tribunal to order against the person or organization who was responsible for the discrimination.

Applicant:A person who files the Application and who is claiming that his or her rights under the Code have been violated.

Respondent: A party that is responding to the Application. Respondents can be both corporate entities and individuals.

Party:The applicant and the respondent are parties to the application process. In addition, the Tribunal may add a person or organization as a party to your hearing. If the eventstook place in a unionized workplace, your union will generally be added as a party to your application. The Tribunal has the power to allow individuals or organizations to participate in a hearing if they would be affected by the outcome. The Ontario Human Rights Commission may also apply to the Tribunal to participate in a hearing.

Response: The respondent’s answer to the Application. A Response must be filed within thirty-five (35) days after a copy of the Application has been sent to the respondent by the Tribunal. The Response is filed with the Tribunal and the Tribunal will then mail it to you.

Reply: The applicant’s answer to the Response of the respondent. The Reply is intended to ensure that the applicant has put his or her version of the facts in writing. It should include any facts which differ from what the Respondent has said, unless those facts are already covered in the Application. If a Reply is necessary, it must be filed within fourteen (14) days after a copy of the Response has been sent to the applicant by the Tribunal.

Mediation: Mediation is an opportunity for you and the respondent(s) to meet in person, with a Tribunal Member or Vice Chair, to try to settle the issues in your Applicationwithout going to a hearing. A settlement is a voluntary agreement to resolve the matter on specified terms. See the HRLSC Applicant’s Guide to Preparing for Mediation at the Tribunal available at on the HRLSC web site.

Notice of Mediation: The notice sent out by the Tribunal to the applicant and respondent(s) setting out the date scheduled for the mediation. The Tribunal has specific deadlines for requesting a change of mediation date.

Summary Hearing: The Tribunal can dismiss a case without hearing all of the evidence if it determines that there is “no reasonable prospect of success”. The process used for reaching this conclusion is called a summary hearing. The purpose of the summary hearing is to determine whether the Application is supported by enough evidence to hold a mediation or proceed to a hearing of all the evidence.

Hearing: The legal proceeding where you will present your case in front of the decision maker called an adjudicator (a Member or Vice-Chairof the Tribunal who acts like a “judge” in your case). It is similar to a trial in court, although not as formal. The purpose of the hearing is for the adjudicator to decide whether the Code was violated.

Confirmation of Hearing: The notice sent out by the Tribunal to the applicant and respondent(s) (the parties) setting out dates for the hearing and telling the parties when they have to share their documents and witness information with the other parties. If a party who wants a hearing date to be re-scheduled, the party must contact the Tribunal’s Registrar to request re-scheduling. The party should contact the other parties in advance to try to get agreement on a new hearing date.See the Tribunal’sPractice Direction on Scheduling:.

What if I am dealing with a Summary Hearing?

A summary hearing is a preliminary process in which the Tribunal’s goal is to decide whether your application is supported by enough evidence to hold a mediation or a full hearing. A Respondent can ask for a summary hearing to be held in your case or the Tribunal can decide on its own that it will send your application to a summary hearing. If your application is scheduled for a summary hearing, it means that there is a question about whether you would be able to prove, at a full hearing, that your rights under the Code were violated. Your task at your summary hearing will be to demonstrate that you have evidence connecting what happened to you to a ground under the Code (race, disability, age, gender, sexual orientation etc.). The Tribunal may specify other questions for you to address as well, before the summary hearing takes place, in a document called a Case Assessment Direction.

If you receive a Notice of Summary Hearing, you should read the Tribunal’s Practice Direction on Summary Hearing Requests. You may also want to look at the sections of this guidebook that deal with preparing your evidence for a full hearing (including witness statements and documents). The information about how to prove discrimination at a full hearing will help you identify the evidence that you will need. At your summary hearing, you should be prepared to show the Tribunal that you have the necessary evidence (witnesses or documents) to prove, at a full hearing, that there is a connection between what you experienced and the Code ground that you have identified in your application.

Can IResolve My CaseBefore a Hearing?

Yes. Before a hearing is scheduled, you will have the option to attend mediation if all the parties agree to do so. The applicant and respondents are required to tell the Tribunal, in their Application and Response, whether they agree to attend mediation. The Tribunal may also offer mediation after an Applicationhas been filed with the Tribunaleven if it is not requested by the parties.

Mediation is a good way to try to settle your case without going to a hearing. Mediation gives you a chance to meet with a Member or a Vice-Chairof the Tribunal who is an expert in human rights law (acting as the mediator) to discuss your case and try to come to an agreement to resolve the issues in yourApplication. Remember that mediation is voluntary and you do not have to come to an agreement during the mediation if you are not happy with the proposed resolution.

The mediation process is confidential and parties will be required to sign confidentiality agreements prior to mediation. If you agree to a settlement, the respondent may ask that the terms of the settlement remain confidential, but it is open to you to ask that the settlement package be shared with the public. Some respondents may agree to be open about the deal if it could be good publicity for their business. For example, an employer might see this as an opportunity to get a “good news” story about their company into the media.

For more information about the mediation process, see the HRLSC Applicant’s Guide to Preparing for Mediationat the Tribunal and HRLSC Information Sheet What Do I Need to Know about Mediation? available on our web site at HRLSC information sheets.

what are the advantages of resolving my application at mediation?

Mediation offers a number of advantages to parties before the Tribunal, including:

  • Mediation takes less time than a hearing: Mediations require less preparation on your part than a hearing. Most mediations are scheduled for half a day, or one (1) day if they are more complicated.A hearing will often require two (2) or more days.
  • Mediation leads to a faster result than a hearing: Mediations are scheduled before hearings and results are usually finalized on the day of the mediation. If you reach an agreement at the mediation, you will not have to go to a hearing in the future and you will not have to wait for the Tribunal to make a decision.
  • Mediation allows you to negotiate the resolution: Unlike at a hearing, you can negotiate with the respondentsat mediation.So if there is one result that you want more than another(for example,you want your old employer to conduct a human rights training in the office more than you want a letter of recommendation) you may be able to bargain for that at the mediation. At a hearing, the result is dictated by the Tribunal adjudicator who hearsyour caseand you do not have control over the outcome.
  • Mediation allows you to accept or reject a proposed agreement: Unlike the outcomeat a hearing, you have the opportunity to choose to accept or reject the proposed results atmediation. As well, you will be given time to think about whether you want to sign an agreement at mediation.

If the parties on both sides of a case do not agree to participate at mediation, or if no settlement is reached through mediation, the Tribunal will schedule a hearing. Anything raised during the mediation is strictly confidential and cannot be brought up againat a hearing, or outside the mediation, unless permission is given.

What is the Purpose of a Hearing?

A hearing at the Tribunal is a chance for you to prove the claims that you made in your Applicationand to ask for a remedy. A hearing also gives the other parties an opportunity to defend against claimsyou have made against them. The hearing allows the Tribunal to listen to both sides of the case to decide whether theallegations in the Applicationprove a violation of the Code, and if so, what remedy the applicant should receive.

The Tribunalconducts its hearings according to five (5) core principles. These principles are set out on the Tribunal’s web site and are intended togovern the Tribunal’s Rules and policies, as well as its hearing procedure and its decisions. The principles are:

  • Physical and functional accessibility (i.e.providing hearing rooms that are designed to eliminate barriers to people who want to participate effectively and a process that is understandable, fair and relevant to the applicants and respondents, whether they are working with a lawyer or not);
  • Fairness (i.e. both sides should feel that they were treated fairly);
  • Transparency (i.e. the process and decisions should be easy to understand);
  • Timeliness (i.e. the process should be completed quickly); and
  • Opportunity to be heard (i.e. an Application will not be dismissed without the Tribunal hearing from the parties).

What Will I Have to Do at the Hearing?

Your goal at the hearing is to prove that the Code was violated and that you are entitled to a remedy. Your goal at the hearing is to prove that your rights under the Code were infringed and that you are entitled to compensation or some other order or remedy to address the infringement. This means that you will need to prove that:

  • the respondent(s) treated you differently or in a way that had a negative impact on you because of, or on the basis of, a Code ground of discrimination (e.g. race, disability, age, sex/gender, sexual orientation); and
  • as a result, you suffered a disadvantage or a loss, including a financial loss (e.g. loss of paid work) or a loss to your sense of self-worth and dignity (i.e. an emotional impact).

The rest of this guidebook will provide you with some tools that will help you prepare to prove these two things.

Do I Need a Lawyer at My Hearing?

Most people who file anApplication at the Tribunal do so without the assistance of a lawyer. Even at mediation and hearings, many people represent themselves.While it is helpful to have a lawyer, the policies and procedures of the Tribunal are designed to be understandable to individuals whether they have a lawyer or not.

How Can I Get Ready Before My Hearing?

Getting ready for your hearing involves a fair amount of work. If possible, you should get started as soon as you can. There is a lot you can do to increase your knowledge of the hearing process and human rights legal principles. The more knowledge you have, the better you will be at presenting your case at the Tribunal.

What follows below are the five (5) basic steps to getting ready for your hearing. NOTE: These steps are in no particular order so that you do not need to follow each step in the order that it is set out here. Frequently, you will need to be doing more than one step at a time depending on what stage you are at in the application process.

The steps are:

Step 1: Learning about the Law and Hearing Process;

Step 2: Preparing Your Evidence;

Step 3: Disclosing Your Evidence: Relevant Documents and Witnesses;

Step 4: Preparing Your Witnesses to Speak at the Hearing; and

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