Disclosure

When you make an application at the Human Rights Tribunal of Ontario (the Tribunal or HRTO) 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 hearing.

Full and proper 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.

The deadlines for disclosing your evidence can vary. In some matters, the HRTO will issue a Case Assessment Direction (CAD) setting out timelines that start on the date the CAD was issued. If you do not receive a CAD that sets out your disclosure deadlines, then you must follow the deadlines set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure.

HRTO CAD Deadlines – Some CADs will set out the disclosure requirements as listed below, but it is important that you carefully read your CAD to determine what your actual deadlines are:

1. Within 21 days of the CAD, you must deliver to the other parties a list of and copies of your “arguably relevant” documents. 

2. Within 42 days of the CAD, you must deliver to the other parties and file with the Tribunal:
   1. A list of and copies of all documents you intend to rely on at the hearing;
   2. Your witness list, including expert witnesses;
   3. Your witness statements; and
   4. Your Case Summary.

HRTO Rules Deadlines – Under the Rules, there are two deadlines related to disclosure:

1. 21 days after the date on your Notice of Confirmation of Hearing, you must deliver to the other parties a list of and copies of your “arguably relevant” documents.
2. 45 days before the first day of your hearing, you must deliver to the other parties and file with the Tribunal:
3. A list of and copies of all documents you intend to rely on at the hearing;
4. Your witness list, including expert witnesses; and
5. Your witness statements.

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”.

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.

This is a complicated area of law. 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.

A witness statement, sometimes called a “will say” statement, is a document summarizing the evidence you anticipate your witnesses will provide to the Tribunal during the hearing. 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.

If you received a CAD, there may be additional requirements set out in that document by the Tribunal. Be sure to read the CAD carefully to ensure you know what you need to provide to the Tribunal. For example, a CAD may state:

It is the Tribunal’s intention that each witness’s witness statement or expert report, as the case may be, will be adopted under oath by the witness instead of providing oral evidence-in-chief. The witness will then be cross-examined under oath on their witness statement or expert report by the parties opposite.

This means the Tribunal is requesting highly detailed witness statements that include all of the evidence that witness would provide in their testimony, which would allow the Tribunal to adopt the written statement as their evidence instead of having them testify orally. If you receive such a direction in a CAD, it is important that you take the time to clearly and correctly set out all of the evidence you wish for your witness to provide in your witness statement.

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.

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 provide a copy of the expert’s resume with your witness list and witness statements, 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.

A Case Summary is a document which sets out:

• A brief summary of every point in issue in your matter; and
• A brief summary of every outstanding procedural or jurisdictional issue or request that you are raising in your matter.

A Case Summary is intended to supplement, not replace, a party’s pleadings. It is not intended to be exhaustive as to every detail of the events which took place but must address every procedural and substantive legal or other issue being raised by s party. If an issue, procedural or otherwise, has already been raised with the Tribunal but the Tribunal has not yet issued a ruling on that issue then it must be included in the Case Summary.

Your Case Summary should include:

• A summary of the facts that are set out in your application
• A list of the legal issues (i.e. breaches of your rights under the Code) raised in your application. For example:
  • I was sexually harassed by my supervisor
  • My supervisor reprised against me for filing a harassment complaint by reducing my hours of work
  • My employer did not investigate my harassment complaint
  • The termination of my employment was further reprisal for my harassment complaint
• A list of the procedural or jurisdictional issues that have been raised in your matter but not yet dealt with by the Tribunal, such as:
  • A request to add or remove a party; or
  • A request to dismiss all or part of your application on a preliminary basis.
• A list of the remedies you will be asking the Tribunal for (i.e. your answer to Section 8 of your Form 1 or 1G).

Be sure to review your CAD carefully for any requirements for your Case Summary, such as a limit on the number of pages it can be or any guidance on the particular issues that need to be addressed in it.

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 relevant 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 is relevant that you have not already given to them.

Failing to follow the Tribunal’s disclosure requirements may have negative consequences for your application, including dismissal of your case without a hearing. Human rights applications are serious matters. 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).

You should not assume that steps which you have already taken will be enough to satisfy the Tribunal’s disclosure requirements. 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. Even if you have previously provided documents to the Tribunal, you may have to 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.

The Tribunal may not allow you to use any documents that you have not provided to the Respondent and the Tribunal as directed by the Tribunal or as required by the Rules. 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 statement for them.

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 your undisclosed evidence or witnesses, there could 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 very important to make sure that you disclose all your relevant documents and witnesses to the other side in accordance with the Tribunal’s Rules or other direction. 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.