Human Rights Legal Support Centre

Requiring a Witness to Attend a Hearing

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.

  1. Why would I need a summons?
  2. How do I get a summons?
  3. What effect does a summons have?
  4. When should I deliver a summons to my witness?
  5. Are there special rules about delivering a summons to a witness?
  6. Do I have to pay the witness to attend the hearing?
  7. Do I need to prove the summons was properly delivered with the attendance money?
  8. What if I deliver the summons improperly?
  9. What if I do not deliver a summons to a witness?
  10. Appendix A

Introduction

Making sure that your witnesses attend your hearing at the Human Rights Tribunal of Ontario (Tribunal) is very important. Many of your witnesses will attend the hearing voluntarily if asked. For more information about preparing your witnesses see our Applicant’s guide to preparing for a hearing at the Tribunal.

If you think that a witness might not come to the hearing, you will need to take steps to ensure he or she does attend. You will need to summons the witness to the hearing (see Rule 3.1 of the Tribunal’s Rules of Procedure on their web site at Rules of Procedure).

A Summons to Witness (“summons” - also sometimes called a subpoena) is a legal document that orders a person to attend a Tribunal proceeding, sometimes requiring the person to bring specific documents to the hearing.


Why would I need a summons?

If you have any concern that one of your witnesses will not appear at your hearing, you should arrange for them to receive a Summons to Witness. A person who receives a summons is required by law to appear at the hearing.

If a summonsed witness does not attend the hearing, the Tribunal can ask the Ontario Superior Court of Justice to issue a warrant directing a police officer to apprehend the person and bring them before the Tribunal.


How do I get a summons?

Unlike most Tribunal forms, you cannot get a summons from the Tribunal website. You must contact the Tribunal by phone or in person to get a summons. It will have the Tribunal seal and be signed by a Tribunal Vice-Chair.

You must complete the summons by filling in the person's name and the date and time of the hearing before delivering it to the person you want to appear at your hearing. If documents are being summonsed as well, you should attach a list of what documents you want them to bring, with as much description as possible. For example: “The letter from Mr. Smith dated November 7, 2009 in which he said he would hesitate to employ me on a permanent basis because I had been on sick leave.”


What effect does a summons have?

A summons forces a person to appear as a witness at a hearing on a specific date. It can also order the person named to bring particular documents or things with them to the hearing.


When should I deliver a summons to my witness?

You need to deliver the summons to your witness a reasonable time before the hearing to allow the person to arrange to attend the hearing.

What is a reasonable time will depend on the circumstances. Ideally, you should request your summons several weeks before the hearing begins, so there is time for you to prepare the summons and for you to arrange to deliver it to your witness before the hearing.


Are there special rules about delivering a summons to a witness?

Yes. You are required to arrange for the summons to witness to be delivered personally to the witness This is called the “service” of the summons to witness. This means leaving the summons to witness with the person you want to appear as a witness. A summons is not properly served if it is sent by any other method of service other than personal service.

You can give the summons to the witness yourself or you can have someone else do it for you. It is possible to find a “process server” who you could pay to serve the summons to your witness. The process server will charge a fee for this service.


Do I have to pay the witness to attend the hearing?

Yes. A summons is valid only if it is delivered in person to a witness with a small amount of money called “attendance money.” The Tribunal prefers that the witness be offered the money in cash.

The Tribunal uses the same summons rates as set out in the Ontario Court Rules of Civil Procedure (see Appendix A at the end of this Information Sheet). In general, you may be required to pay the following as “attendance money”:

  • Attendance allowance ($50.00 per witness)
  • Travel allowance (the amount of which depends on the distance the witness has to travel to attend the hearing)
  • If necessary, an allowance for overnight accommodation ($75.00 per witness per night)

Do I need to prove the summons was properly delivered with the attendance money?

If your witness does not appear at the hearing, yes, you will need to prove the summons was delivered in person or at the correct residential address and that the attendance money was paid. Make sure the person who delivers or serves the summons can prove that they did so by taking note of:

  • The place, date and time of delivery
  • How the summons was delivered (by leaving it with the person or at their residence)
  • The amount of attendance money paid
  • If they left it with a person, how they knew it was the right person (for example, they know them or they asked to see their driver’s licence)

What if I deliver the summons improperly?

The summons may be invalid if a summons is not delivered directly to the witness or left at their residential address, or if the required attendance money is not paid. This means that the Tribunal may decide to go ahead with the hearing even without the witness participating. Although you can ask the Tribunal to adjourn the hearing so that you can properly deliver a summons to your witness, but there is no guarantee that the Tribunal will do so.


What if I do not deliver a summons to a witness?

If you do not serve a summons and your witness fails to appear, you will be expected to continue with the hearing without the evidence of your witness.

Appendix A

Courts of Justice Act
R.R.O. 1990, REGULATION 194
RULES OF CIVIL PROCEDURE

EXCERPT FROM TARIFF A
LAWYERS’ FEES AND DISBURSEMENTS ALLOWABLE UNDER
RULES 57.01 AND 58.05

Note: This excerpt was last updated on December 3, 2009. The Human Rights Legal Support Centre does not warranty the currency of this document.

To confirm currency, see Tariff A of the Rules of Civil Procedure go to the e-laws web site to Rules of Civil Procedure. Note: Tariff A is not in the index, you will have to scroll down to near the end of the document.

Part II - Disbursements

Attendance money actually paid to a witness who is entitled to attendance money, to be calculated as follows:

  1. Attendance allowance for each day of necessary attendance………$50
  2. Travel allowance, where the hearing or examination is held,
    • in a city or town in which the witness resides, $3.00 for each day of necessary attendance;
    • within 300 kilometres of where the witness resides, 24¢ a kilometre each way between his or her residence and the place of hearing or examination;
    • more than 300 kilometres from where the witness resides, the minimum return air fare plus 24¢ a kilometre each way from his or her residence to the airport and from the airport to the place of hearing or examination.
  3. Overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay…………………. $75