Case Management Conference Calls
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. This information sheet is reliable as of the date of publication (February 2023). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.
All Human Rights Tribunal of Ontario (HRTO) applications filed at the HRTO on or after March 1, 2018 are processed at the HRTO using a new case processing system.
Case management conferences, although a relatively recent development at the HRTO, are a common feature in many court and tribunal settings. A case management conference is a type of pre-hearing meeting between the HRTO and the parties. You, the respondent(s) and any other parties must attend at the CMCC. Any lawyers or paralegals representing the parties may also appear at the case management conference.
For more information about case management conferences, see the HRTO’s Practice Direction on New Case Processing System and Case Management Conference Calls.
The HRTO, for most of those applications, now schedules a Zoom based electronic pre-hearing Case Management Conference Call (CMCC) via a Notice of Videoconference before any Notice of Hearing is issued.
In other cases, the CMCC may be scheduled approximately thirty (30) days before the first day of your hearing and, in some other cases, the CMCC may be scheduled less than that 30-day period.
It is also possible that the HRTO will schedule more than one CMCC for a case. You will need to check your Notice of Hearing and/or your Notice of CMCC which will provide all the relevant information to allow you to participate, including the date, time and location of the CMCC and/or the hearing.
In many applications at the HRTO, there are various preliminary or procedural issues and these issues get resolved well before the CMCC and hearing dates. Sometimes, however, there are preliminary issues that do not get resolved or cannot really be resolved before the CMCC.
The CMCC is intended to deal with any remaining preliminary or procedural issues between the parties. What issues are remaining at the CMCC will depend to a large extent on the facts of your case.
As noted, your HRTO Notice of Hearing and CMCC will provide the date and time of the CMCC as well as the telephone call-in information.
It is important to come to the CMCC as prepared as you can be. It will be necessary to bring all your relevant documents and materials to be able to fully discuss and present your position. It is helpful if these documents and materials are organized by date.
All the preliminary issues that you have must be raised in writing at least seven (7) calendar days before the date of your CMCC. You do this by writing or sending an e-mail to the HRTO Registrar and copying the other parties. A formal Request for Order During Proceedings (Form 10) is not required and you are not required to follow Rule 19 under the HRTO Rules of Procedure.
Because time is limited at the CMCC, it would also greatly assist the process to have sent copies of any documents or material that you intend to rely on to the respondent and the HRTO ahead of the date of CMCC.
The respondent may also raise their preliminary issues in accordance with the seven (7) day timeline. You are not, however, required to respond in writing to any preliminary issues raised by a respondent or any other party before the CMCC. You may do so if you wish.
Similarly, the respondent is not required to respond in writing to any preliminary issues raised by you before the CMCC but may do so if the responded so wishes.
The CMCC will be chaired by an HRTO adjudicator assigned to your hearing and is normally scheduled for one (1) hour but it may be longer depending on the nature of the case.
The CMCC is not a formal HRTO hearing and no witnesses are required to attend. The HRTO will not hear any evidence, make any findings of fact, and will not make any determination made as to the merits of the HRTO application, (i.e., whether you or the respondent(s) should be successful at the hearing).
The CMCC has several purposes for the parties. One purpose is to explore the possibility for any potential settlement of the HRTO application or parts of the HRTO application. The parties may wish to discuss the potential for mediation / adjudication at, or before, the HRTO hearing.
A second purpose is to help the parties prepare for their hearing by trying to resolve some of the issues raised in the case. The HRTO hearing might be shorter and simpler where some of the issues have been resolved at the CMCC.
The HRTO adjudicator will discuss with the parties any outstanding issues requiring the HRTO’s involvement and may encourage the parties to make admissions and reach agreements on various issues. The HRTO adjudicator may also establish schedules and deadlines for the parties to provide the HRTO with information.
A third purpose to is to help the parties to better organize their positions, evidence, and issues at the hearing. Again, this would help reduce the time and resources required for the hearing itself. The HRTO adjudicator may also provide an assessment of the strengths or weaknesses of each party’s evidence or help about the Human Rights Code provisions or common law might apply to the case.
The HRTO adjudicator may make oral rulings on any of the issues raised at the CMCC, and/or may issue written rulings on these issues without detailed reasons.
The CMCC process may involve any of the following preliminary issues and many of these issues relate to the evidence that the parties may be intending to use at their hearing, including:
- identifying documents and witnesses that will be used at the hearing;
- objections to hearing documents or witnesses;
- requests for a witness to testify by video or phone or at a specific time;
- requests for proper or more specific witness statements; and
- other preliminary or procedural issues that arise out of the witness statements or hearing documents or that relate to the conduct of the hearing.
In addition, the HRTO adjudicator and the parties will likely discuss in detail how the hearing will proceed, including such procedural issues as:
- the order in which witnesses will testify;
- a schedule for witness testimony and/or time limits for questioning witnesses;
- whether opening statements are required;
- clarifying of the issues to be addressed at the hearing;
- marking undisputed documents as exhibits at the beginning of the hearing;
- the adoption of witness statements as all or part of a witness’ evidence in chief;
- whether the parties can agree on any facts;
- determining the hearing type, if required, and estimate the duration;
- deciding the number of hearing days required and schedule the days; and
- directing how the hearing will be organized and any other steps that must occur before the hearing.
There may be other preliminary issues as well. It often depends on the nature of the case. For example, a party may have Code-related accommodation needs or there may be other, new developments in the case that require being raised and addressed at the CMCC.
It is very important to identify and raise all the preliminary issues that you have at the CMCC and to be prepared to address any issues that the HRTO may raise.
If a preliminary or procedural issue could have been raised by a party at the CMCC but was not, the HRTO adjudicator may not allow that party to raise the issue at a later time or at the hearing.
No. You should always try to identify and raise any preliminary issues before the HRTO as soon as possible. You should not wait until the CMCC is scheduled. You should raise any procedural issues you may have prior to the CMCC by sending a communication or a Form 10 at least two (2) days prior to the date of the CMCC and you should also copy the other parties in your case.
The HRTO Rules of Procedure provide for a way to raise many types of preliminary issues under Rule 19. At any time after an application has been filed with the HRTO, you may complete a Request for an Order During Proceedings (Form 10).
You should make, at the earliest opportunity, a Request for Order during Proceedings (Form 10) to bring your preliminary issues to the attention of the HRTO including requests:
- to add a respondent or another party;
- to defer your HRTO application pending the completion of another legal proceeding;
- to consolidate or have applications heard together;
- to amend your application;
- to re-activate a deferred application;
- for particulars; or
- for production or disclosure of documents.
Your Notice of CMCC should advise that the HRTO’s disclosure rules do not apply to a CMCC.
Your Notice of Hearing, however, provides the date, time and location of your hearing and will also notify you of the dates for the disclosure of your arguably relevant documents (see HRTO Rule 16.1) and disclosure and filing of documents and witness statements to be relied upon (see HRTO Rules 16.2, 16.3, 17.1 and 17.2).
The dates for the disclosure of the parties’ documents and witnesses is linked to the date of the Notice of Hearing and date of the hearing itself.
You must disclose your arguably relevant documents within twenty-one (21) days of receiving the Notice of Hearing and you must disclose your documents and witness statements to be relied upon with forty-five (45) days of the hearing date.
The timing of the CMCC is important. Because it may take place after the parties are required to file their witness statements and hearing documents, the HRTO will consider the potential impact of granting a request to extend the time for filing hearing documents or witness statements on the scheduled CMCC. As a result, any requests to extend the time for disclosure will only be granted in exceptional circumstances.
This means that the HRTO will want to deal with any disclosure issues raised by the parties well in advance of the CMCC. If the disclosure from the opposing party is late or incomplete, a party is expected to make any requests for disclosure as soon as possible and preferably shortly after the deadline for disclosure of the arguably relevant documents.
You should not wait to raise any disclosure issues you have at the CMCC. For example, if you raise an issue of the incomplete disclosure of documents from the respondent at the CMCC and you request further disclosure, the HRTO adjudicator may not grant your request.
The HRTO adjudicator will consider the timing of your request as a factor when deciding whether to order production, in addition to factors like fairness and prejudice.
The process and deadlines for requesting re-scheduling are set out in the HRTO’s Notice of CMCC. You must act quickly – within fourteen (14) days of the date of the Notice of CMCC – to arrange for rescheduling.
A timely request to re-schedule the hearing will result in re-scheduling both the hearing and the CMCC.
Where a timely request is made to re-schedule the CMCC, the HRTO will try to re-schedule the CMCC taking into consideration the availability of the assigned Vice-chair and the parties and the scheduled hearing date.
After the fourteen (14) days expires, the CMCC and/or hearing will be re-scheduled only in exceptional circumstances upon approval by the HRTO Registrar, even if you and the respondent have already agreed to re-schedule.
You should be aware that, generally, retaining a representative who is not available or ready to proceed on the scheduled date is not considered an exceptional circumstance by the HRTO.
You should also review the HRTO’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournment for more important information about re-scheduling dates at the HRTO.
You must contact the other parties and inform the HRTO Registrar. Your request must be submitted in writing. You must provide the HRTO with three (3) to five (5) mutually agreeable dates with the other parties that are within sixty (60) days of the originally scheduled date for the CMCC.
You should be aware, however, that the dates you and the other parties have agreed upon may not be dates that are available for the HRTO.
If the agreed upon dates are unavailable or no information is provided about new dates, the HRTO will re-schedule to the next available date for the HRTO.
Finally, it is important to know that if you need to re-schedule more than once, the re-scheduling of subsequent dates is not subject to the fourteen (14) day practice and will only be granted by the HRTO in exceptional circumstances.
The HRTO conducts all CMCC by teleconference and/or videoconference unless it approves a request for an accommodation based change in the CMCC hearing format. A request for accommodation will be considered by the HRTO when a request for a format change is made.
The HRTO’s Updated Practice Direction on Hearing Formats sets out the relevant procedure to be followed.
In addition, accommodation requests should be made in accordance with the HRTO’s Accommodation Policy.
If you have reached a written and signed settlement of your HRTO application before the CMCC, the CMCC will not be cancelled until there is a signed Confirmation of Settlement (Form 25) filed at the HRTO.
Note that the written and signed settlement itself should not be filed at the HRTO. More information about the Form 25 at the HRTO may be found here: https://tribunalsontario.ca/documents/hrto/Other/SJT025E.pdf
It is very important to attend the CMCC after receiving proper notice from the HRTO. A CMCC is not optional, even if the CMCC is scheduled merely to set hearing dates. If you do not attend your hearing and/or the CMCC, the HRTO may proceed in a party’s absence (if a respondent or intervener) or decide to dismiss your application as abandoned (if an applicant).
This means that you should make every effort to attend your CMCC. It can be very difficult to reinstate your HRTO application where the HRTO has decided to dismiss your application as abandoned.