Books relating to human rights on a library shelf

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 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. 
  1. 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 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.

The purpose of a Witness Statement is to provide the adjudicator and other parties with advance notice of the evidence that you anticipate a witness will provide at your hearing. The Witness Statement must set out all the relevant details of the events that your witness will testify about.

You must draft a Witness Statement for each of your witnesses, including yourself. You and your witnesses may not be allowed to testify at the hearing if you do not provide Witness Statements by the deadline set out in your Case Assessment Direction (CAD) or your Notice of Hearing.

It is important to ensure that all of the potential evidence a witness may provide is included in the Witness Statement because the Tribunal may choose to adopt the Witness Statement as that witness’s evidence in chief. This means that the Tribunal may accept the contents of the Witness Statement as their evidence instead of having the witness testify at the hearing.

I. THE BACKGROUND

This section can be used to capture information that is important to the matter, such as the identity of a witness or details about how the applicant identifies under a particular Code ground, that do not fit neatly within the next two sections.

Example:

I am the applicant. I was diagnosed with [diagnosis] on March 6, 1999 by Dr. Singh, who has been my doctor for 29 years and has monitored my condition through monthly visits.

II. THE EVENTS

In this section, you must set out the evidence that you or your witness will provide to the Tribunal through your testimony. The details set out in this section should relate only to events or facts that are within the direct knowledge of that witness.

Example:

  1. I applied for a position with the Respondent on December 15, 2019. Shortly afterwards, the Owner of the Respondent contacted me and conducted an interview over the phone.
  2. The following day, the Owner called to say I was hired and would be scheduled to start on January 5, 2020. He told me I would be paid $17 an hour and would work 40 hours a week. He said there are three shifts in the warehouse and all new employees are expected to work all shifts on a rotating basis.
  3. I started work on January 5. The Owner introduced me to the Warehouse Manager and told me that I would be reporting directly to him. I worked for one month without any issues.
  4. I had been experiencing a flareup of my disability. I saw Dr. Singh after my shift on February 5, 2020 and she recommended that I ask the Respondent to be scheduled for the same shift each week as accommodation of my disability. She wrote me a note to provide to the Respondent to support this request.
  5. On the morning of February 6, 2020, before the start of my shift, I approached the Warehouse Manager and advised him I have a disability for which I need accommodation at work. I provided him with the note that Dr. Singh gave me. The Warehouse Manager frowned and handed the note back to me. He said “We don’t do that kind of stuff here. Either you work the shifts we give you or you get another job”.
  6. I was very upset by these comments, but I did not say anything out of fear of losing my job. I took the medical note back and went to my station in the warehouse to start my shift.
  7. The Owner was not in the warehouse that day, so I was not able to speak with him until the following day, February 7, 2020. I told him about my need for accommodation and tried to give him the note from Dr. Singh.
  8. The Owner said there was nothing he could do to help me as it is essential to the efficiency of the warehouse that all staff work rotating shifts. He also refused to take the note that Dr. Singh had drafted for me. I said nothing further and went to my station to start my shift.
  9. When I arrived for work on February 8, 2020, the Owner asked me to meet with him in his office. We went to his office and he shut the door, which made me nervous. He then said that he was really sorry but they we going to have to let me go. I burst into tears and asked why they were firing me, because I thought I had been doing a good job. He told me I “wasn’t a good fit” for the warehouse. I asked him why he thought this, as I had only received positive feedback about my performance at work. He told me that I clearly was not a dedicated employee because I was refusing to work rotating shifts. This made me very angry and I stormed out of the office and went home.
  10. I was not ready to start looking for a new job until March 1, 2020. I handed out 22 resumes during the month of March and found a new job that started on April 1, 2020, working 35 hours a week and making $18 per hour.

III. THE IMPACT ON THE APPLICANT

Here, you should set out all of the evidence that you or your witness will provide about the impact the alleged incidents in your application had on you. This evidence is important as it is relevant to the amount of general damages you may be awarded if your application is upheld by the Tribunal.

Example:

  1. I was very hurt and upset by the treatment I had received while working with the Respondent. For several weeks, I could not stop crying. I lost my appetite and developed insomnia. I did not want to spend any time with my family or friends.
  2. I saw Dr. Singh 3 times during this period, as I experienced a worsening of my disability. She prescribed medication to assist with the insomnia.

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 fact and legal 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 meant to capture all the relevant information about your matter in one document. This will assist the Tribunal adjudicator in managing your file and preparing to adjudicate your matter at your hearing.

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 the parties. 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.

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.

I. THE OVERVIEW:

In this section of a Case Summary, you should try to explain to the Tribunal what your case is about in a few sentences. This is a good opportunity to frame your case for the Tribunal and why you believe the facts set out in your application, if proven, would establish a violation of the Code:

Example:

The Respondent discriminated against me on the basis of disability by refusing to accommodate my request for working a straight shift instead of rotating shifts and by firing me after I made my request for accommodation.  

Shortly after I began working for the Respondent, I disclosed my disability to the Warehouse Manager and made a request for a change to my schedule as accommodation of my disability. The Warehouse Manager refused my request for accommodation.

I repeated my request for accommodation to the Owner of the Respondent the next day. Shortly after this conversation, I was fired. I believe the decision to fire me was related to my request for accommodation.  

II. THE FACTS:

Here, you must set out all of the facts that are in your application and that you intended to raise at the hearing to support your position that your rights under the Code have been breached. Using subheadings to organize your facts will assist the Tribunal in understanding your story:

Example:

START OF EMPLOYMENT

I started working for the Respondent on January 5, 2020 as a Warehouse Assistant. The warehouse was open 24 hours and had three shifts, which all employees were required to be available for: morning (7am-3pm); afternoon (3pm-11pm); and night (11pm-7am). I worked 40 hours a week and was paid $17 per hour.

INCIDENTS OF FEBRUARY 6, 2020 – DISCUSSION WITH WAREHOUSE MANAGER

On the morning of February 6, 2020, before the start of my shift, I approached the Warehouse Manager and advised him I have a disability for which I need accommodation at work. I provided him with a doctor’s note that stated that I cannot work rotating shifts due to my disability and need to be scheduled to work on the same shift every week. The Warehouse Manager refused my request.

INCIDENTS OF FEBRUARY 7, 2020 – DISCUSSION WITH OWNER OF RESPONDENT

On February 6, 2020, at the end of my shift, I went to speak with the owner of the Respondent about my discussion with the Warehouse Manager the previous day. He told me they needed all employees to work every shift and that they could not change that for me.

INCIDENTS OF FEBRUARY 8, 2020 – TERMINATION MEETING

When I arrived for work on February 8, 2020, I was approached by the Owner who asked me to meet with him in his office. During our meeting, he told me my employment was being terminated before the end of my probationary period because I “wasn’t a good fit” for the job. I asked him why he thought this, as I had only received positive feedback about my performance at work. He told me that I clearly was not a dedicated employee because I was refusing to work rotating shifts.

POST-TERMINATION

I was very hurt and upset by the treatment I had received while working with the Respondent, so I was not ready to start looking for a new job until March 1, 2020. During this time, I went to my doctor 3 times and was diagnosed with depression. I was prescribed medication to help me sleep as I had developed insomnia. I also experienced a worsening of my existing disability.

I handed out 22 resumes during the month of March and found a new job that started on April 1, 2020, working 35 hours a week and making $18 per hour.

 

III. THE LEGAL ISSUES IN APPLICATION:

You must include in this section a list of the legal issues (i.e. alleged breaches of your rights under the Code) raised in your application.

Example:

  1. The Respondent failed to accommodate my disability.
  2. The Respondent fired me because I asked for accommodation of my disability.

 

IV. THE PRELIMINARY LEGAL ISSUES (IF ANY):

Here, you should list any procedural or jurisdictional issues that have been raised in your matter but have not yet dealt with by the Tribunal.

Example:

  • I filed a Form 10 with the Tribunal on January 6, 2024 asking to amend my application to include a request for general damages in the amount of $25,000.

 V. THE REMEDIES

In this section, you should list the remedies you will be asking the Tribunal to award you if your application is successful.

Example:

  • General damages of $25,000
  • Lost wages of $4,760 (40 hours/week x $17 per hour = $680/week x 6 weeks = $4,760)
  • Letter of reference from the Respondent
  • Human Rights training for all staff of the Respondent
  • Development of an Anti-Discrimination and Harassment Policy
  • Development of an Accommodation and Accessibility Policy

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.