Disclosure of Documents
As you get ready for the hearing, you will need to give copies of all your documents to the other side, and the other side will need to give copies of their documents to you. This exchange is called disclosure. Each party has a right to know what the other side’s case is about.
Within 21 days of the Confirmation of Hearing, you must deliver to every other party (if more than one respondent)
- all arguably relevantArguably Relevant: documents that are closely related to the case documents in your possession. These are documents that you plan to use at the hearing or documents that could still be relevant to the case.
- a copy of each document on the list, except for any documents over which privilegePrivilege: a right that a client has to confidentiality, also called privacy, when discussing legal issues with a lawyer is claimed.
If you claim privilege over any document, you must describe what the document is, how you plan to use it and why you want to keep it private.
The documents do not go to the HRTO at this point. They go to the other parties. But, you have to send Statements of Delivery (Form 23) to the HRTO to confirm that disclosure is complete.
Forty-five days before the hearing date, you must deliver to the parties, AND file with the HRTO:
- A list of documents that you plan to rely on at the hearing (you do not need to include arguably relevant documentsArguable Relevant Documents: documents that are closely related to the case); and
- A copy of each document on the list (if it has not already been provided), or confirmation that each document has already been shared.
Include only the documents you plan to use at the hearing to prove or support your position, including the remedy you seek. Often this will be a much smaller number of documents than the party disclosed as arguably relevant to the issues in dispute.
Remember!
Unless the HRTO tells you otherwise, you must still disclose and send your documents by the original deadline, even if you have rescheduled the haring date.
Also, your responsibility to disclose does not end after you have given the other side documents to meet the first deadline. If you find a new document or learn that information has changed after the above deadlines are met, you must deliver the new document or information to the other parties right away.
Failing to share arguably relevant documentsArguably Relevant Documents: documents that are closely related to the case is a serious. Missing a deadline could lead to the document being left out.
Gathering Witnesses
Witnesses are people who can provide evidenceEvidence: a letter, a picture, a document, or anything else that is related to your case that can help prove your side of the story about an issue or fact that is relevantRelevant: any letters, pictures, medical forms, or other pieces of paper that are closely connected to your appeal, and will help you show your side of the story to the dispute between the partiesParty(ies): the parties in an HRTO appeal are the person who first applied to the HRTO with an appeal, and the person who the appeal is against. A witness could be someone who was present when an incident happened, and can talk about what he or she saw or heard. Witnesses can also have special knowledge about an important part of the case. For example, a witness may know about an organization’s policy or may be able to tell the HRTO adjudicator how the policy was developed and how it was applied in the past. Witnesses usually give information rather than opinion about a claim. But, parties sometimes call expert witnesses. Expert witnesses are people who have special experience, education, or skills, who can offer opinions that will help the adjudicator to decide.
- Make a list of the people that you think have information or who can give a relevant opinion that will support your case.
- Write down the questions you want to ask your witness(es). These questions should help the witness to talk about the things that you think are important for your case. Think about what the person knows that can support your claim, and ask questions that will help bring out those details.
- Meet with your witness(es), tell them why you have asked them to speak for you, and practice asking them your list of questions.
** NOTE ** Not later than 45 days before the first scheduled hearing day, you must give your list of witnesses to the HRTO along with a description of what your witnesses will say. Also, if you want to call an expert witness, you must include a copy of the expert witness’s written report, or a full summary of what the witness will say, as well as a resumé that lists the witness’s qualifications and training. Be sure the witness list is filed with the HRTO along with Form 23.
Making Sure Your Witnesses Show Up
It is up to you to make sure that your witnesses show up at the hearing. If you are worried that a witness may not attend the hearing, you can summonSummon: a legal document that is given to a witness, that tells them that they must show up to provide information in a court case or in a tribunal appeal the witness. To do this, contact the HRTO to get a signed Summons to Witness (Form 24). Sometimes a witness needs a summons in order to be able to be absent from work.
The summons will be signed by a HRTO adjudicator but will otherwise be blank. You must complete the Summons to Witness (Form 24) by filling in the following information:
- the name of the witness
- the address of the witness
- the date, time and location of the hearing
- any documents that the witness must bring with him/her
- the date the summons was completed
- the name, address and telephone number, and Law Society of Upper Canada Number (for lawyers and paralegals) of the person issuing the summons
You must make sure that the summons is served on (given to) the witness in person. You can do this yourself or pay a professional to do it for you. Witnesses are allowed to claim expenses and a daily rate for appearing. They are allowed to ask for their attendance money, in cash, at the time they are served with the summons. You may have to pay this fee yourself, but if you are successful in your claim, you may be able to recover these costs.
The Hearing
A hearing at the HRTO gives an opportunity for each party (side) to present its case, including facts and legal arguments, to the HRTO adjudicator. An adjudicator is an impartial (neutral) decision-maker with experience, knowledge and training in human rights law and issues.
At the hearing, the adjudicator will listen to information presented by the applicantApplicant: the person who has applied to the Human Rights Tribunal for a hearing and the respondentRespondent: the person who is on the opposite side of the person who has applied to the Human Rights Tribunal of Ontario and by any witnesses. At the end, the adjudicator will write a decision after reviewing all the information and submissionsSubmission(s): parts of your story that are put in writing, and are presented to the person in the HRTO hearing who is making a decision on the case presented at the hearing.
People who are involved in HRTO proceedings are entitled to accommodationAccommodate: the act of making changes to meet someone’s special needs. An example includes providing a wheelchair ramp in a building to accommodate people in wheelchairs. for special requirements. If you or any of your witnesses need this sort of support, consult the HRTO’s Policy on Accessibility and Accommodation and ask for the support you need.
Ontario Human Rights Tribunal hearings are open to the public. Many people like to see a hearing before their own hearing begins so they know what to expect. To find out what hearings are scheduled, including what topics will be addressed, you can call 416-326-1312 between 10 a.m. and 4 p.m. to learn about what hearings will take place the next day. In Toronto, the Ontario Human Rights Tribunal hearings take place at 655 Bay Street, 14th floor. You can call the same number to find out about the hearings that will take place outside Toronto. There is no guarantee that a hearing will take place even if it is scheduled as many hearings can be settled or adjourned in the hours before it was to begin.
Evidence
Unless all the parties agree about what the facts are, evidenceEvidence: a letter, a picture, a document, or anything else that is related to your case that can help prove your side of the story will have to be presented.
You should come to the hearing ready to show evidence about what discrimination took place, what effect it caused and what remedyRemedy(ies): the way the law helps to enforce a right, or helps to restore someone who has been harmed against the law you would like. If you would like monetary compensationMonetary Compensation: money that you think should be paid to you if you win your appeal under the Ontario Human Rights Code, you must be ready to explain to the HRTO the amount of money you are asking for and how the amount was calculated.
A remedy example could be an order that you be given an opportunity to return to work with the appropriate accommodation. The respondent may be ordered to correct the discriminatory situation, to develop policies or hold training sessions for staff. The adjudicator may also order actions to ensure that, in future, the respondent follows the Human Rights Code.
It is important to note that the purpose of the code is remedialRemedial: intended as a remedy; something is remedial when its purpose is to correct behaviour rather than punish behaviour, not punitivePunitive: intended as a punishment for doing something wrong; something is punitive when its purpose is to punish behaviour. Remedies are not supposed to punish the respondent for his or her bad behaviour. An order will aim to help people cope with the harm suffered because of discrimination and help prevent someone else from going through the same situation.
The HRTO adjudicator must base his or her decision only on the evidence and argument heard at the hearing, so it is essential to include everything important to your case. After the parties have presented all the evidence, they have a chance to review it, and to tell the adjudicator how they think the case should be decided. The tribunal is not there to decide which party has the best story. Its job is to decide if the complainant’s Code rights were violated and, if so, what ought to be done about it.
The Law
In making your case, it will be helpful if your evidence is supported by rulings from other cases. It will also be useful to refer to the parts of the code that you think apply to your case.
Hearing Participants
The participants in a hearing include:
- you and your representative, if you have one
- the respondent(s)and any person or organization against whom you have made a complaint
- any interveners that the HRTO has said can participate in the hearing
- witnesses, spectators (people who have come to watch the hearing, including in some cases the media), interpreters (for persons who require language interpretation or sign language interpretation) or support persons may also be present
NOTE ** Unless the HRTO decides otherwise, hearings are open to the public.
The Hearing Process
Before the hearing starts, the adjudicator will ask any witnesses to leave the room until it is their turn to testify. This is done so that witnesses won’t change their story after they have heard other witnesses.
The adjudicator will then ask whether any one has any questions. This is your chance to ask about anything you don’t understand, or to ask for more time to get ready. You will need a very good reason to ask for an extension. (See HRTO practice directions)
You go first. Start with your opening statement. It is important to tell the panel why you are there, what remedyRemedy(ies): the way the law helps to enforce a right, or helps to restore someone who has been harmed against the law you seek and how you plan to prove that your protected rights were violated by the respondent(s). If you have witnesses, ask them what they know. Your questions should bring out facts and information that support your case. The other side will have a chance to ask your witnesses questions. Then, if new information comes out, you will get a chance to ask more questions.
The other side is next.They will ask their witnesses questions. Listen for anything a witness says that you think is not correct. You will have a chance to ask the other side’s witnesses some questions. Be polite, but it is OK to doubt their opinion or ask them about other facts that support your story.
Witnesses:
| Option A Making your case without other witnesses |
Option B Making your case with other witnesses |
| If you are your only witness, you can just tell your story. Try to give details supporting all the points you made on your application form. | If you have other witnesses, you should ask them questions about the information they have, facts they know and/or opinions they can give that support your case. |
| If you do not have a representative, simply tell your story in a clear and true way. | DO NOT put words into the witness’s mouth or make long statements and then ask the witness if he or she agrees. |
| Share any exhibitsExhibit(s): types of evidence that can help you to tell your story. Exhibits can include pictures, letters, documents, or anything else that is closely related to your case. you have when they come up in your story. | Commenting on the answers given by a witness is not allowed. You must save your thoughts about what they are saying until your closing statement. |
Once you are done, the other side (respondent) will have a chance to ask you and each of your witnesses questions. Answer honestly and directly. If you do not understand the question or do not know the answer, just say so.
Sometimes new issues or information comes up when the other side is questioning you or your witnesses. If this happens, you can ask more questions about those new points. Remember: when questioning a witness for the second time, you must ask only about the new information; you cannot ask the same questions as you did before.
Final Arguments
Once all the witnesses have had their turn and the exhibitsExhibit(s): types of evidence that can help you to tell your story. Exhibits can include pictures, letters, documents, or anything else that is closely related to your case. have been shared, the adjudicator will ask each side to talk about why, after hearing the information that came out at the hearing, they should make a decision in their favour. This is not the time to testify all over again; just go over the evidence and summarize your points.
- Prepare an outline of what you want to say.
- Go over the best evidence that supports your side of the story.
- List the reasons why the other side’s case is weak.
- Tell the adjudicator the areaArea(s): The areas covered by the Code are: • Employment • Housing • Contracts • Services, goods and facilities • Unions or occupational/professional associations and groundsGrounds: the protected reasons against discrimination in Ontario. The grounds are set out in the Ontario Human Rights Code. of discrimination.
- Review the evidenceEvidence: a letter, a picture, a document, or anything else that is related to your case that can help prove your side of the story that shows that this discrimination happened.
- Tell the adjudicator how the discrimination affected you emotionally, financially and otherwise
- Review the evidence that shows details about these effects
- Take a few moments to challenge any of the respondents’ points that might have impressed the adjudicator.
- Try to make a link between the discrimination you faced, the harm you suffered and the response you would like to see.
- Finish by telling the adjudicator what you would like him or her to remember as they make their decision.