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.
- When do I need to disclose my evidence?
- What is an “arguably relevant” document?
- When do I need to disclose my list of arguably relevant documents?
- Is there any evidence that I do not have to disclose?
- What is a privileged document?
- What about documents that I intend to use at my hearing? Do I need to identify these documents to the other parties?
- When do I need to disclose my list of witnesses that I intend to ask to give evidence at the hearing?
- What if I have an expert witness I want to bring to the hearing?
- What if the Tribunal orders a new deadline for disclosure?
- What if a party does not disclose documents or information that I think are relevant?
- What could happen if I do not disclose my documents and witness statements?
- What happens at the hearing if I want to rely on documents or call witnesses that I have not disclosed?
When you make an application at the Human Rights Tribunal of Ontario (the Tribunal) the individual or corporation responding to your application (the Respondent) has a right to know what your case is about. As an Applicant, you must give information to the Respondent about the evidence that you will be relying on to prove your application. The Respondent is under the same obligation to provide you with information about the evidence that will be used to defend against your application.
This is called “Disclosure”. You have to tell the Respondent (and any other party) about your case and give them documents that relate to your application. You need to tell them about the evidence that you want to use at your hearing, including the identification of your witnesses and documents. You are entitled to the same detailed information from the Respondent.
The mutual disclosure of evidence - the information that you have to give to the Respondent, and the information they must show you - will help you make an informed choice about how you want to handle your human rights application. Thinking about the types of documents and witnesses that will be necessary to prove your case will help you prepare for your mediation or hearing.
Disclosure also means the hearing will run more efficiently and fairly, so that no one will be taken by surprise by unexpected positions, documents or witnesses.
Under the rules of the Tribunal, you will have to submit documents and a list of witnesses to the Tribunal and the Respondent (and any other parties) before the hearing takes place. If you do not meet the deadlines, there is a chance you will not be allowed to use your documents at the hearing or your witnesses might not be allowed to testify.
There are three (3) different deadlines related to disclosure:
- The list of “arguably relevant” documents (21 days after the Tribunal sends the Notice of Confirmation of Hearing)
- The list of the documents that you intend to actually use at the hearing (45 days before the first day of your hearing)
- The list of your witnesses who will give evidence at the hearing (45 days before the first day of your hearing)
An “arguably relevant” document is any document that might relate to your Application, even if you are not sure you will use it at the hearing, and even if it is a document you do not want to give to the Respondent. For instance, there might be a letter that your supervisor wrote to you about your performance that you don’t think relates to your discrimination case, but your employer may decide it is “arguably relevant”.
You will receive a “Notice of Confirmation of Hearing” from the Tribunal. You must provide your arguably relevant documents no later than 21 days after the date of that notice. You need to provide a list of the documents and a copy of each one to the Respondent(s) and any other parties.
There may be. Some evidence is considered to be privileged and you do not need to share this type of evidence with the other parties. However, you must still list every document that you believe is privileged in your list of documents and explain why you think it should not be shared with the other parties.
There are different kinds of privileged evidence. In general, any document that was created by or for a lawyer may be something that is privileged. Evidence that is considered to be privileged and does not need to be disclosed includes:
- Documents created about your case by your lawyer (called “lawyer/client privilege”)
- Documents created by your lawyer to prepare for litigation (called “litigation privilege”)
- Documents created to try to negotiate a settlement of your case (called “settlement privilege”)
For more information about what these types of privilege are and whether they may apply in the circumstances of your application, see our guidebook called An Applicant’s Guide to Preparing for a Hearing at the Tribunal.
What about documents that I intend to use at my hearing? Do I need to identify these documents to the other parties?
Yes. 45 days before the first date of your hearing you need to deliver to the Tribunal and the Respondent(s) and every party, a list and a copy of all the documents you want to use at your hearing. This means that you need to provide them with copies of every document that you will be using at the hearing.
If you have already delivered a copy of the documents to the other parties 21 days after you received Notice of Confirmation of Hearing you still need to give the document to the Tribunal.
When do I need to disclose my list of witnesses that I intend to ask to give evidence at the hearing?
No later than 45 days before the first date of your hearing, you must send a list of witnesses to the Respondent and any other party. You must also provide a brief statement summarizing the evidence of each witness. This brief statement of evidence is sometimes called a “will say” statement.
If you are planning to use an expert witness (someone with specialized knowledge, such as a doctor), you must, 45 days before the hearing, give the Respondent(s) and any other party, and the Tribunal, a copy of the expert’s resume as well as a copy of any written report that the expert has prepared for your hearing.
If your expert is not preparing a written report for the hearing, you must instead give the other parties and the Tribunal a full summary of the evidence that you expect the expert will give at the hearing.
Occasionally the Tribunal may provide different deadlines about evidence or witness lists. If this is the case, you will be given direct instructions about this by the Tribunal. You can get a deadline changed only if you have a very good reason for needing the change. You can make this request to the Tribunal through a Form 10 - Request for an Order During Proceedings found on the Tribunal’s web site.
If you believe the Respondent has documents that are “arguably relevant” to your application but they did not give them to you, you can ask the Tribunal to order the respondent to disclose the documents to you.
You can also ask for information that the Respondent has in its possession that may not be in the form of a document – for example, a photograph or a tape recording. You will need to demonstrate to the Tribunal why the document, information or thing that you seek is important to your case.
If you want the Tribunal to order the Respondent to disclose a document to you, you will have to make a request to the Tribunal. Use Tribunal Form 10 - Request for an Order During Proceedings. See Rule 19 of the Tribunal’s Rules of Procedure.
The Respondent or any other party can also ask the Tribunal to order you to disclose a document or other information that you have not already given to them.
You should be aware that failing to follow the Tribunal’s Rule 16 (exchange of documents) and Rule 17 (witness statements) may have negative consequences for your application, including dismissal of your case without a hearing. Human rights applications are serious matters. The Rules exist and must be followed because the Tribunal has an obligation to ensure that both sides are dealt with fairly. The failure to comply with a Tribunal rule or direction could result in the Tribunal dismissing your application and cancelling your hearing date(s).
Do not assume that steps which you have already taken will be enough to satisfy the requirements of Rules 16 and 17. With respect to documents, it is essential that the Tribunal be given, in advance, all of the documents that you are going to use at the hearing. Rule 16.2 requires that you provide the documents to the Tribunal. Even if you have previously provided documents to the Tribunal, you must do so again, or at least advise the Tribunal that you intend to rely on all of the documents you have already provided.
With respect to witness statements, they should provide details as to what each witness is going to tell the Tribunal. This includes not just people who are going to testify on your behalf, but YOU as well. You are a witness and you must file a witness statement for yourself. If your application is detailed and clear, your witness statement may simply say that your evidence will be what you stated in the application.
You must take these steps in order for the Tribunal to continue with your case. If you cannot do so for some reason, you should contact the Tribunal and advise them of the reasons that you are unable to do so. Neglecting to fulfill the disclosure requirements and failing to contact the Tribunal may be interpreted as abandoning your application. The Tribunal may also refuse to allow you to introduce evidence at your hearing that has not been disclosed to the other side.
What happens at the hearing if I want to rely on documents or call witnesses that I have not disclosed?
The Tribunal may not allow you to use any documents that you have not provided to the Respondent and the Tribunal in line with the rules described above. The Tribunal can also refuse to allow your witnesses to testify at your hearing if you did not provide the Respondent and the Tribunal with a witness list and brief “will say” statements.
The Tribunal may give you permission if there are unusual or special circumstances that made it very difficult for you to comply with the disclosure rules. It will be very difficult to get this permission unless you have a very good reason for not complying.
If the Tribunal does allow you to rely on undisclosed evidence or witnesses, this probably means there will be an adjournment (setting another date in the future) of your hearing. This is to give the Respondent a chance to look at the new documents or witness statements.
That is why it is really important to make sure that you disclose all your relevant documents and witnesses to the other side in accordance with the Tribunal’s rules. This will help to make sure that your evidence and witnesses are included in the hearing and become part of the basis on which your application is decided by the Tribunal.