A Guide to Virtual Hearings at the Human Rights Tribunal of Ontario

This self-help guide is intended to assist self-represented applicants in effectively participating in a virtual hearing in light of Tribunals Ontario’s Updated Practice Direction on Hearing Formats and its implementation of a Digital First services for Ontarians.

References:

• Updated Practice Direction on Hearing Formats (tribunalsontario.ca)
• TO | September 17, 2020 Tribunals Ontario Implementing Digital-First Services for Ontarians | Tribunals Ontario

Please note:

The Tribunal is holding both merits hearings and preliminary hearings virtually.

Please note that the information contained in this self-help guide is not a substitute for reading Ontario’s legislation such as the Human Rights Code (Code), the Tribunal’s Rules of Procedure and the Tribunal’s Practice Directions.  It is very important to review all of the above before your hearing.

References:

• Legislation
• Human Rights Code
• Rules of Procedure
• Practice Directions

The HRTO will schedule your hearing by default as a video conference hearing, usually on Zoom (virtual hearing).

You will need to assess whether you and your witnesses will be able to participate in a virtual hearing based on your particular circumstances considering the following factors:

• Code related needs – If you or a witness of yours has a Code related barrier to using video (e.g. a visual or hearing impairment or a brain injury limiting the use of screens) then you must make a request for the hearing format that will accommodate you and/or your witness.
• Access to computer – All participants will need a computer with a microphone and camera.
• Internet access & quality of internet – All participants need access to reliable internet with adequate bandwidth. The details are explained in a section called, “Technology Requirements” that can be found in Tribunals Ontario’s Guide to Video Conferencing.
• Ability to use a computer – The Tribunals Ontario’s website provides links to tutorials for joining and using zoom, but you will still need to have basic computer literacy.
• Ability to access private space for the duration of a hearing – if you are not able to have privacy throughout the hearing, which can run for a full day, then you will need to advise the HRTO and seek accommodation on this issue.
• Access to a smart phone as an alternative – Tribunals Ontario’s Guide to Video Conferencing discourages the use of smartphones for hearings and requires the HRTO adjudicator to agree to using a smart phone for the hearing.

References:

Guide to Video Conferencing Proceedings and Zoom

Guide to Video Conferencing Proceedings

Preparing for a Video Conference Proceeding

Tips for Connecting to your Zoom Proceeding

If you or your witness require any changes to the format of the hearing for Code related or technology access reasons, you must ask for accommodation using Tribunals Ontario’s accommodation form.

Tribunals Ontario provides information on how to request accommodation on it’s website.

Depending on your situation, you will need to consider what type of accommodation to request, such as an in-person hearing or access to a computer and internet. You should explain the details of the barriers that you have and the accommodations that you require.

For example, you may live in a remote rural community with limited access to internet and require access to a computer with internet or an in-person hearing.

Or you may require Communication Access Realtime Translation (CART) or real-time captioning due to a hearing disability.

References:

TO: Request an Accommodation | Tribunals Ontario

TO: Request a Change to my Hearing Format | Tribunals Ontario

TO: Accommodation Form

Your book of documents should have an index, tabs for each document, and consecutive page numbering within the document. Here is a sample of what this would look like:

If appropriate, a separate collection of documents can be used for the examination or cross-examination of witnesses.

You are expected to provide an electronic copy of any document you wish to have entered as evidence to all other parties and the HRTO.

References:

Adobe Acrobat Pro  – Indexing 

Adobe Acrobat Pro – Tabs 

Adobe Acrobat Pro – Page Numbers 

Documentary Evidence

The HRTO may require you to submit your documents in a particular format that is set out in Tribunals Ontario’s “Best practices for parties to submit documents”.

These formatting requirements involve having specific programs or applications such as Microsoft Word, Adobe Acrobat Pro or equivalent programs or applications that allow you to create and edit a searchable and bookmarked document as your “book of documents”. This is different from Adobe Acrobat Reader, which you can download for free but does not allow you to edit the PDF document.

If you do not have access to the necessary programs and/or applications, you may do the following:

a. Write to the HRTO Registrar and copy the Respondent advising that you cannot comply with preferred document format and ask for direction;

b. Complete an accommodation request form requesting to file disclosure in an alternate format and provide reasons for this request; or

c. Contact the Respondent to determine whether you can file your documents jointly with them if this is applicable to your circumstances and case

It is your responsibility to submit documentary evidence within the timelines provided by the HRTO.

If you will be unable to meet these timelines then you may request an extension of time by emailing the Registrar and copying the Respondent(s) explaining your reason(s) for the extension request and how many additional days you require.

References:

Tribunals Ontario – Guide to Videoconferencing Proceedings and Zoom

If you intend to rely on video or audio recordings you should to contact the HRTO and ask what their requirements are and what their preferred method of disclosing video and audio recordings is for purposes of disclosure.

Presently, the HRTO is providing guidance on how to disclose audio and video recordings within your Notice of Hearing.  Ensure that you read your Notice of Hearing carefully, if it does not include any information on how to submit audio and video recordings, contact the HRTO immediately.

You must send a witness list to the HRTO and all the other parties.  A witness list should include all the witnesses who will testify for you at the hearing.  You must also provide a brief statement summarizing each witness’s expected evidence.  This is sometimes called a “will-say” statement.

If you are planning to use an expert witness, you must submit a copy of their resume as well as a copy of any written report the expert has provided to you, or a full summary of the evidence that the expert will give at the HRTO.

An expert witness is someone with specialized knowledge in a particular area that gives evidence for one party at the hearing. For example, if your case is about a disability that requires accommodation, you could ask a doctor who specializes in that disability to testify about how to accommodate your disability.

Unless you are given special permission by the HRTO, you will normally not be allowed to use a witness at your hearing if you do not include them on your list and provide a brief summary of their evidence.  See: Tullett v. The Salvation Army National Recycling Operations, 2016 HRTO 1153, MacPherson v. William Lyon Mackenzie Housing Co-Operative, 2008 HRTO 247, and Peprah v. Royal Ottawa Health Care Group, 2015 HRTO 1106

The respondent is under the same obligation to provide you with a witness list and will-say statements for each witness.  You should object if the respondent tries to use a witness who was not on their list and for whom you have not received a summary of their intended evidence.

The respondent’s documents and will-say statements will be helpful to you as you further prepare your case. You can use the documents provided by the other parties if you think they will help you prove your facts.  You can use the will-say statements to prepare questions for the respondent’s witnesses.

If you require witnesses to attend a hearing, refer to our How-to Guide on Requiring a Witness to Attend a Hearing.

Often, at hearings, parties refer to cases or decisions from the HRTO or the Courts in order to persuade the HRTO to accept particular arguments related to a legal issue in the hearing, such as questions of liability or the appropriate remedy.

If you want to refer to case law in your hearing, you will need to create a
“Book of Legal Authorities”.

The book of legal authorities should have an index, tabs for each case or decision, and consecutive page numbering within the document. Here is a sample of what this would look like:

Whenever possible, hyperlinks for authorities referenced should be used or a copy of the decision should be provided.  Decisions can be found and referenced from Canlii, LexisNexis Quicklaw, Westlaw, or websites of Canadian Courts (see references below).

References:

Adobe Acrobat Pro  – Indexing 

Adobe Acrobat Pro – Tabs 

Adobe Acrobat Pro – Page Numbers 

Canadian Legal Information Institute | CanLII

Lexis Advance Quicklaw – legal research software (lexisnexis.ca)

Westlaw Canada | Better Results Faster

Decisions link to CanLII | Ontario Court of Justice (ontariocourts.ca)

Decisions of the Court | Superior Court of Justice (ontariocourts.ca)

Decisions of the Court – Court of Appeal for Ontario (ontariocourts.ca)

Decisions and Resources – SCC Cases (lexum.com)

A hearing at the HRTO is a chance for you to prove the claims that you made in your application and to ask for a remedy. A hearing also gives the other parties an opportunity to defend against claims you have made against them.

The hearing allows the HRTO to listen to both sides of the case to decide whether the allegations in the application prove a violation of your Code rights, and if so, what remedy the applicant should receive.

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. the emotional impact).

Tips to help you at your virtual hearing:

1. Preparing before the day of hearing:

• If you have not used Zoom before, review the Tribunals Ontario links for tutorials on participating in Zoom meetings.
• If possible, test your Zoom audio and video by participating in a short meeting with a friend or family member
• Make sure you have the link for the hearing and have arranged private space with internet.

2. Participating on the day of hearing:

• Join the hearing at least 10 minutes in advance and check your video and audio are working.
• If you have any issues getting into the Zoom hearing, contact the HRTO by EMAIL and by phone – put your HRTO file number in your email and explain the issue to ensure there is a record that you tried to join the hearing and could not.
• Here are the instructions to follow if you are experiencing any issues joining the Zoom hearing:
  • In the SUBJECT line of the email: URGENT! HRTO File No. – having trouble joining the Zoom hearing
  • In the body of the email: provide a BRIEF description of the issue/s you’re encountering
  • After the email: follow up with a phone call to the HRTO and mention that you have emailed them about the issue/s.
• If you are disconnected from the videoconference and cannot immediately reconnect, you must contact the HRTO. If you cannot rejoin, the proceeding will be temporarily adjourned. The HRTO will convene a conference call to determine the next steps. In some cases, the adjudicator may adjourn the proceeding if they determine it cannot proceed fairly.

3. Using your documents in the hearing:

• You should use the PDF tab number, page number, and document name when referencing any submission/document.
• During a proceeding, screen sharing of documents can be done at the discretion of the adjudicator. The functionality is available via the Share feature as outlined in the  Zoom User Guide.

4. Witnesses at your hearing:

To protect the integrity of the HRTO proceeding, the rules for witnesses include:

• Witnesses are not permitted to testify with others present, without the prior approval of the HRTO;
• Witnesses should have all documents before them that are required when giving their testimony;
• Witnesses cannot be assisted by others during their testimony; and
• Witnesses must inform the HRTO if anyone else is present in their location during their testimony. The HRTO may direct the witnesses to be alone when giving testimony.

References:

<ahref=”https://tribunalsontario.ca/en/videoconferencing/”>TO: Videoconferencing | Tribunals Ontario

The following are additional helpful resources, guides, and best practices for remote and virtual hearings that may assist you in preparing for and participating in your virtual hearing.