Preparing for a Hearing

This Human Rights Legal Support Centre (HRLSC) guidebook is intended to help you represent yourself at a hearing before the Ontario Human Rights Tribunal (Tribunal). If you have a human rights claim and have filed an Application at the Tribunal, this guidebook will help you prepare the presentation of your case. The guidebook includes a general overview of the Tribunal’s hearing process and important information about what steps you should take in order to be as prepared as possible for your hearing.

There are two things to note before you begin to read the guidebook. First, the information contained in this guidebook is not a substitute for reading Ontario’s Human Rights Code (Code) and the Tribunal’s Rules of Procedure. It is very important to review both the Code and the Rules of Procedure before your hearing. You can find the Human Rights Code at the government’s e-Laws web site. The Tribunal’s Rules of Procedure can be found at Rules of Procedure

Second, this guidebook is about preparing for your hearing and not about preparing your forms for the Tribunal such as the Application or your Reply. For information about how to prepare your Application to the Tribunal and/or your Reply, you can review the Applicant’s Guide on the Tribunal’s website.

This guidebook is not about the Tribunal process called a Summary Hearing. It is about the process for a “full” hearing– one at which the Tribunal hears witnesses and decides whether or not discrimination occurred in your case. A summary hearing is a shorter preliminary process in which the Tribunal’s goal is to decide whether your application is supported by enough evidence to hold a mediation or a full hearing. If you are reading this guidebook because a Respondent has requested a summary hearing, or the Tribunal has scheduled one, refer to the section below titled “What if I am dealing with a Summary Hearing?.”

Any legal proceeding uses words and terms that you may not be familiar with and that can be hard to understand. The human rights application process is no exception. Both the Code and the Tribunal’s Rules use language in a way that may not be familiar to you. However, the Tribunal process is also designed to be accessible and understandable to self-represented applicants.

The following are some terms that you will come across in this guidebook and in your dealings with the Tribunal. As you go through this guidebook, you will see that other common terms are also defined for you.

Ontario’s Human Rights Code: The law in Ontario that protects people from discrimination and harassment at work, in housing, in the receipt and delivery of goods, facilities, services, and contracts, and with regard to membership in unions, trade or vocational associations. You can find the Code at e-laws: Human Rights Code

Human Rights Tribunal of Ontario: If you think that you have experienced discrimination under Ontario’s Code, the Tribunal is the place where you can file an application seeking a remedy. The Tribunal’s purpose is to resolve, through either mediation or adjudication, applications about discrimination under the Code.

Tribunal Adjudicator: The Tribunal has part-time Members and full-time Vice Chairs who are appointed by the Ontario Government to conduct mediations and hearings. The Members and Vice Chairs act as adjudicators (i.e. judges) and have the authority to decide if discrimination has occurred and to order a remedy. See section below: What is a Remedy?

Grounds of Discrimination: The Code prohibits discrimination and harassment on any of the following grounds: of race, colour, ancestry, place of origin (where you were born), gender expressions, gender identity, ethnic origin, citizenship, creed (e.g. religion), sex (including pregnancy), disability, sexual orientation, age, marital or family status, receipt of public assistance (in relation to housing only), or record of offences (in relation to employment only).

Rules of Procedure: The rules issued by the Tribunal setting out how Code applications will proceed. The Introduction to the Rules states that the purpose of the Rules is to provide an open and accessible process and to allow for fair, just and expeditious proceedings. They talk about matters such as deadlines, how documents must be delivered, and how the Tribunal will deal with various matters that arise during the course of proceedings. It is important to read the Rules and be familiar with them.

Application: The initial document that begins the Tribunal’s process. The Application is where you explain what happened to you, why you believe it is discrimination and what you want the Tribunal to order against the person or organization who was responsible for the discrimination.

Applicant: A person who files the Application and who is claiming that his or her rights under the Code have been violated.

Respondent: A party that is responding to the Application. Respondents can be both corporate entities and individuals.

Party: The applicant and the respondent are parties to the application process. In addition, the Tribunal may add a person or organization as a party to your hearing. If the events took place in a unionized workplace, your union will generally be added as a party to your application. The Tribunal has the power to allow individuals or organizations to participate in a hearing if they would be affected by the outcome. The Ontario Human Rights Commission may also apply to the Tribunal to participate in a hearing.

Response: The respondent’s answer to the Application. A Response must be filed within thirty-five (35) days after a copy of the Application has been sent to the respondent by the Tribunal. The Response is filed with the Tribunal and the Tribunal will then mail it to you.

Reply: The applicant’s answer to the Response of the respondent. The Reply is intended to ensure that the applicant has put his or her version of the facts in writing. It should include any facts which differ from what the Respondent has said, unless those facts are already covered in the Application. If a Reply is necessary, it must be filed within fourteen (14) days after a copy of the Response has been sent to the applicant by the Tribunal.

Mediation: Mediation is an opportunity for you and the respondent(s) to meet in person, with a Tribunal Member or Vice Chair, to try to settle the issues in your Application without going to a hearing. A settlement is a voluntary agreement to resolve the matter on specified terms. See the HRLSC Applicant’s Guide to Preparing for Mediation at the Tribunal.

Notice of Mediation: The notice sent out by the Tribunal to the applicant and respondent(s) setting out the date scheduled for the mediation. The Tribunal has specific deadlines for requesting a change of mediation date.

Summary Hearing: The Tribunal can dismiss a case without hearing all of the evidence if it determines that there is “no reasonable prospect of success”. The process used for reaching this conclusion is called a summary hearing. The purpose of the summary hearing is to determine whether the Application is supported by enough evidence to hold a mediation or proceed to a hearing of all the evidence.

Hearing: The legal proceeding where you will present your case in front of the decision maker called an adjudicator (a Member or Vice-Chair of the Tribunal who acts like a “judge” in your case). It is similar to a trial in court, although not as formal. The purpose of the hearing is for the adjudicator to decide whether the Code was violated.

Confirmation of Hearing: The notice sent out by the Tribunal to the applicant and respondent(s) (the parties) setting out dates for the hearing and telling the parties when they have to share their documents and witness information with the other parties. If a party who wants a hearing date to be re-scheduled, the party must contact the Tribunal’s Registrar to request re-scheduling. The party should contact the other parties in advance to try to get agreement on a new hearing date. See the Tribunal’s Practice Direction on Scheduling.

A summary hearing is a preliminary process in which the Tribunal’s goal is to decide whether your application is supported by enough evidence to hold a mediation or a full hearing. A Respondent can ask for a summary hearing to be held in your case or the Tribunal can decide on its own that it will send your application to a summary hearing. If your application is scheduled for a summary hearing, it means that there is a question about whether you would be able to prove, at a full hearing, that your rights under the Code were violated. Your task at your summary hearing will be to demonstrate that you have evidence connecting what happened to you to a ground under the Code (race, disability, age, gender, sexual orientation etc.). The Tribunal may specify other questions for you to address as well, before the summary hearing takes place, in a document called a Case Assessment Direction.

If you receive a Notice of Summary Hearing, you should read the Tribunal’s Practice Direction on Summary Hearing Requests. You may also want to look at the sections of this guidebook that deal with preparing your evidence for a full hearing (including witness statements and documents). The information about how to prove discrimination at a full hearing will help you identify the evidence that you will need. At your summary hearing, you should be prepared to show the Tribunal that you have the necessary evidence (witnesses or documents) to prove, at a full hearing, that there is a connection between what you experienced and the Code ground that you have identified in your application.

Yes. Before a hearing is scheduled, you will have the option to attend mediation if all the parties agree to do so. The applicant and respondents are required to tell the Tribunal, in their Application and Response, whether they agree to attend mediation. The Tribunal may also offer mediation after an Application has been filed with the Tribunal even if it is not requested by the parties.

Mediation is a good way to try to settle your case without going to a hearing. Mediation gives you a chance to meet with a Member or a Vice-Chair of the Tribunal who is an expert in human rights law (acting as the mediator) to discuss your case and try to come to an agreement to resolve the issues in your Application. Remember that mediation is voluntary and you do not have to come to an agreement during the mediation if you are not happy with the proposed resolution.

The mediation process is confidential and parties will be required to sign confidentiality agreements prior to mediation. If you agree to a settlement, the respondent may ask that the terms of the settlement remain confidential, but it is open to you to ask that the settlement package be shared with the public. Some respondents may agree to be open about the deal if it could be good publicity for their business. For example, an employer might see this as an opportunity to get a “good news” story about their company into the media.

For more information about the mediation process, see the HRLSC Applicant’s Guide to Preparing for Mediation at the Tribunal and HRLSC Information Sheet What Do I Need to Know about Mediation?

Mediation offers a number of advantages to parties before the Tribunal, including:

• Mediation takes less time than a hearing: Mediations require less preparation on your part than a hearing. Most mediations are scheduled for half a day, or one (1) day if they are more complicated. A hearing will often require two (2) or more days.
• Mediation leads to a faster result than a hearing: Mediations are scheduled before hearings and results are usually finalized on the day of the mediation. If you reach an agreement at the mediation, you will not have to go to a hearing in the future and you will not have to wait for the Tribunal to make a decision.
• Mediation allows you to negotiate the resolution: Unlike at a hearing, you can negotiate with the respondents at mediation. So if there is one result that you want more than another (for example, you want your old employer to conduct a human rights training in the office more than you want a letter of recommendation) you may be able to bargain for that at the mediation. At a hearing, the result is dictated by the Tribunal adjudicator who hears your case and you do not have control over the outcome.
• Mediation allows you to accept or reject a proposed agreement: Unlike the outcome at a hearing, you have the opportunity to choose to accept or reject the proposed results at mediation. As well, you will be given time to think about whether you want to sign an agreement at mediation.

If the parties on both sides of a case do not agree to participate at mediation, or if no settlement is reached through mediation, the Tribunal will schedule a hearing. Anything raised during the mediation is strictly confidential and cannot be brought up again at a hearing, or outside the mediation, unless permission is given.

A hearing at the Tribunal 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 Tribunal to listen to both sides of the case to decide whether the allegations in the Application prove a violation of the Code, and if so, what remedy the applicant should receive.

What is a remedy?

A remedy is ordered at the end of your hearing if the Tribunal finds that you experienced discrimination. It is the Tribunal’s way to ensure that the Code is enforced and a violation is redressed.

Remedies under the Code may be financial, or non-financial or both.

The Tribunal conducts its hearings according to five (5) core principles. These principles are set out on the Tribunal’s web site and are intended to govern the Tribunal’s Rules and policies, as well as its hearing procedure and its decisions. The principles are:

• Physical and functional accessibility (i.e. providing hearing rooms that are designed to eliminate barriers to people who want to participate effectively and a process that is understandable, fair and relevant to the applicants and respondents, whether they are working with a lawyer or not);
• Fairness (i.e. both sides should feel that they were treated fairly);
• Transparency (i.e. the process and decisions should be easy to understand);
• Timeliness (i.e. the process should be completed quickly); and
• Opportunity to be heard (i.e. an Application will not be dismissed without the Tribunal hearing from the parties).

Your goal at the hearing is to prove that the Code was violated and that you are entitled to a remedy. 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. an emotional impact).

The rest of this guidebook will provide you with some tools that will help you prepare to prove these two things.

Most people who file an Application at the Tribunal do so without the assistance of a lawyer. Even at mediation and hearings, many people represent themselves. While it is helpful to have a lawyer, the policies and procedures of the Tribunal are designed to be understandable to individuals whether they have a lawyer or not.

Read about how the Tribunal decided other cases similar to yours

Looking at past decisions of the Tribunal can be a very helpful way to learn more about what your hearing will be like and what sorts of remedies you can ask for at your hearing. You can read past decisions of the Tribunal that deal with facts and issues similar to those in your Application.

How do you find past decisions of the Tribunal?

• Visit the Tribunal’s website and click on “HRTO Decisions”, which provides several options on how to find past decisions.
• You can obtain paper copies of all the decisions of the Tribunal at the Ontario Workplace Tribunals Library, which is open to the public and located at 505 University Avenue, 7th floor, Toronto. You can also visit their website OWT Library or call them at (416) 314-3700 for more information.

Watch a hearing at the Tribunal

One very good way to understand what a hearing will be like is to attend one. Hearings are open to the public (unless there is special order closing them) which means that you can attend a hearing even though you do not know the parties. This will give you a chance to see the procedures used by the Tribunal, such as the use of opening statements, the presentation of the evidence through witnesses and the use of documents and legal precedents.

You can telephone the Tribunal to find out when and where you can attend a hearing. The Tribunal holds hearings in a number of cities across the province. The contact information for the Tribunal is provided at the end of this guidebook or visit their website HRTO.

The only information that the Tribunal can use to decide your case is the information that is introduced as evidence by the parties during the hearing. The information in your application and other documents is not itself evidence but must be repeated at the hearing. This means that it is very important for you to plan the evidence that you will submit at your hearing.

What is evidence?

The Tribunal will accept many sorts of things as evidence in your case. Here are some examples of the different kinds of evidence:

• Oral Testimony: The applicant and the respondent and witnesses can tell the adjudicator about the facts and situations at issue in the application. This is called testifying. As the applicant, you can testify yourself and you can bring other people to testify at your hearing about events directly related to the discrimination. A person who testifies for a party is called a witness. You can ask questions of your own witnesses and you can question the witnesses presented by the other side.
• Documents: In addition to oral testimony, witnesses can also submit written evidence at their hearing, provided that it is disclosed in advance of the hearing, as discussed below. For example, if your application is about discriminatory conduct at work, and you received a letter from your employer discussing that conduct, you can ask the Tribunal adjudicator at your hearing to consider the letter as evidence, provided that when you testify, you can identify the letter as one that you received from the employer.
• Other Documents (e.g., pay stubs, bills, leases, e-mails and contracts) can be submitted as evidence at your hearing. Note: Any documents must be disclosed well in advance of the hearing. This is covered in Rules 16 and 17 of the Tribunal’s Rules of Procedure, discussed further below.
• Other Materials: Sometimes you might want to submit things like photographs or audio recordings as evidence at your hearing. The person who made the photo or recording must provide evidence about when and how it was created.
• Affidavits or Other Statements: In other circumstances, particularly if a witness is not available for the hearing, you might ask the adjudicator to consider a written statement made under oath or solemn affirmation called an affidavit. However, oral testimony from a witness is always considered the most reliable evidence and is given the most consideration or weight by the adjudicator. So if there is someone with important evidence in your case, it is much better to have the person attend the hearing as a witness. You should use written statements as a last resort only.
• Expert Evidence: You can also have an expert witness give evidence at your hearing. For example, a medical specialist might be an expert witness in a case about disability issues. There are special requirements about who can be considered an expert. Expert evidence may be given in an affidavit, or a written report, but the Tribunal will usually require oral testimony from the expert as well.

For information on how and when you must file evidence with the Tribunal or disclose evidence to other parties, please see the section below called Step 3: Disclosing Your Evidence: Relevant Documents and Witnesses.

How do I decide what evidence to disclose?

The Tribunal wants to hear evidence that is relevant to the events at issue. This means evidence that relates to the issues in your Application, the Response and the Reply. You want to provide the Tribunal with evidence that can prove the discrimination and its impact on you.

In order to understand what evidence is relevant, keep in mind that, at your hearing, 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) and/or a loss to your sense of self-worth and dignity (i.e. an emotional impact).

In order to determine what evidence you need at your hearing, you should start by making a list of what happened to you. Remember to think in terms of each event or step in the negative treatment that you experienced.

It is very important that you review your Application, the Response and the Reply, if any. These documents will help identify the events that you need to prove and the issues that you will need to address through evidence at your hearing. For example, if the respondent is claiming that you are not a good employee, you should try to find and disclose evidence to contradict these claims, such as an email from a former supervisor that acknowledges something that you did well at work.

Once you have your list of the facts that you need to prove, you will need to make a second list of the witnesses or documents that you need to prove each fact. Can you testify about each of the events or actions? Are there witnesses other than you? Is there someone who saw the discrimination and who might come to the hearing as a witness?

For example, is there a co-worker, or former co-worker, who saw you being harassed at work because of your race or gender or sexual orientation? Can your witness explain how you were treated differently? Is there a witness who can talk about an event that showed that the negative treatment was because of your race, gender or sexual orientation, and not for some other reason?

Example 1: Identifying Your Relevant Evidence

Hypothetical Case:

Sue filed an application with the Tribunal (Sue v. ABC Company), claiming that her new boss fired her from her job because she was a woman. She has asked the Tribunal to award her money for the wages she lost as well as money to compensate her for injury to her dignity, feelings and self-respect.

Case Outline:

Proving Discrimination:

Fact #1: Sue was fired because she was a woman.

Evidence:

• Sue can claim she was fired on May 25, 2009 through her own oral testimony.
• The company agrees that it fired Sue on May 25, 2009. Sue can show the document dismissing her.
• Sue was often criticized and mocked at work for being a woman. Her employer made comments about her clothing, personal appearance and personal life. Sue can testify about this. She could also ask co-workers who may have heard the comments to be witnesses at the hearing.
• Sue’s co-worker was told that Sue was being fired because the boss didn’t like having women around the office. Sue’s co-worker can give oral testimony.

Proving Losses from Discrimination:

Fact #2: Because of the discrimination, Sue lost $4,000 in wages while she was out of work even though she looked for a new job continuously.

Evidence:

• Sue’s pay stubs show how much she made at the job. She can use these pay stubs as documentary evidence.
• Sue has photocopies of all the applications she submitted and a list of all the places that gave her interviews when she was looking for a new job. She can show these documents as evidence that she tried to find a new job.
• Sue has her contract showing that she was hired at a new job 6 weeks after she was fired from the old one. She can use this contract to show the number of weeks she was unemployed as a result of the discrimination.

Fact #3: Sue suffered injury to her dignity, feelings and self-respect.

Evidence:

• Sue can explain that she was very upset by the discrimination and being fired because she was a woman. She can say this in oral testimony.
• Sue can explain that she became depressed by the events that transpired and that she went to see her doctor. She can submit copies of the doctor’s notes of her visits or a letter from the doctor discussing how upset she was after the discrimination. If Sue’s distress turned into a lengthy period of depression, treated by a doctor, Sue can bring her doctor to the hearing as an expert witness to describe her depression.
• Sue’s husband also saw how upset she was. Sue’s husband can come and give oral testimony.

What if a witness refuses to come and give testimony?

If you want a person to testify at your hearing and the person is not willing to come or may not come, you can give them a summons requiring them to attend the hearing. Sometimes a witness will prefer to be summonsed by the Tribunal, because it will make it easier for them to attend the hearing on a work day.

What is a summons?

A summons is a legal document requiring a person to attend at a hearing. Delivery of a summons to a witness is the responsibility of the party who wants the person to be there. Once a summons has been delivered, the witness is legally obliged to attend the hearing.

You can obtain a Summons of Witness (Form 24) at the Tribunal’s website at: HRTO forms – Summons to Witness.

You will need to add the following information to the Tribunal summons before giving it to your witness:

• name and address of the witness;
• date, time and place of the hearing;
• list of any documents that the witness must bring to the hearing;
• date of the summons; and
• your name, address and telephone number.

A Summons must be given to the witness in person, together with fifty dollars ($50) for each day of their testimony and a travel allowance as follows:

• $3.00/day if the hearing is in the city or town in which the witness lives;
• $0.24/km for the distance between the witness’ residence and the hearing location if the distance is less than 300 km; and
• the minimum return air fare plus $0.24 each way from the witness’ home to the airport if the distance is more than 300 km.

The witness is entitled to get their attendance money, in cash, at the time they are served with the Summons.

A witness who is summoned but does not attend at the hearing, or produce the documents or things specified in the Summons, without lawful excuse, may be subject to contempt proceedings in the Superior Court of Justice.

For more information on the how to obtain and deliver a summons, you can read the Tribunal’s Guide to Preparing for a Hearing Before the HRTO.

What if a witness wants to testify by telephone?

It is sometimes possible to have your witness give evidence by telephone. For example, if you want your doctor to give evidence about your depression resulting from the discrimination, your doctor may prefer to give evidence over the phone. The Tribunal can allow this but you should request an order from the Tribunal well ahead of the hearing, in order for this to be permitted. You can do this by filing a Form 10 called a “Request for Order during Proceedings” – see the Tribunal’s Rules of Procedure.

When do I have to disclose my evidence?

You must share information with the Tribunal and the parties well before the hearing about the evidence that you will be relying on at the hearing. This is called “disclosure”. The respondent is under the same obligation to give you information including documents in its possession and the names and intended evidence of its witnesses.
The purpose of this exchange of information is to allow the parties and the Tribunal to prepare for the hearing. The goal is to prevent surprises at the hearing. A party will usually be prevented from relying at the hearing on a document or witnesses that have not been disclosed to the other party and the Tribunal in accordance with the Tribunal’s Rules.

As the applicant, you need to be aware of the Tribunal’s Rules requiring disclosure of each of the following:

• documents in your possession that could be relevant to your case, whether or not you will use those documents at your hearing (your “arguably relevant” documents);
• documents that you will use as part of your evidence to prove your case at your hearing; and
• your list of your own witnesses for the hearing and a brief summary of what they will say at the hearing.

HRTO Rules Deadlines – Under the Tribunal’s Rules of Procedure, 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:
   • a list of and copies of all documents you intend to rely on at the hearing;
   • your witness list, including and expert witnesses; and
   • your witness statements.

HRTO CAD Deadlines – In some cases, the Tribunal will set different disclosure requirements and timelines than those set out in the Rules by issuing a Case Assessment Direction [CAD] to the parties. Where the Tribunal has issued a CAD that sets out your disclosure deadlines, your deadlines for disclosure will usually be set a certain number of days from the date on the CAD. 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:
   • a list of and copies of all documents you intend to rely on at the hearing;
   • your witness list, including expert witnesses;
   • your witness statements; and
   • your Case Summary

List of your arguably relevant documents

No later than twenty-one (21) days after the Tribunal sends you a confirmation of hearing, you must deliver to the other parties a list and copy of all the documents in your possession that are arguably relevant to your hearing. An arguably relevant document is any document that may relate to the issues in the Application and Response, even if you do not think you will ultimately want to present the document at the hearing, and even if the document might be helpful to the other side. You cannot withhold a document even if you think it might hurt your case.

The respondent is under the same obligation to provide you with a list and copy of all arguably relevant documents by the same deadline. If you believe the respondent has documents that are arguably relevant and that have not been disclosed to you, you can ask for those documents in your Application to the Tribunal. If the other side does not provide them after twenty-one (21) days, you can ask the Tribunal to make an order that the documents be disclosed. This requires that you bring a Request for an Order During Proceedings (Form 10). The other side may also bring a request for such an order.

There are a few documents that you do not have to produce even if they are arguably relevant. See the section below called “Is there any evidence I do not have to disclose?” However, you still must describe the document and to state the reason why it should not be shared.

List of your documents for the hearing

No later than forty-five (45) days before your first scheduled hearing date, you will need to deliver to the Tribunal, and to every other party, a list and a copy of all the documents you intend to rely on at the hearing to prove your case. This means all documents (your own documents and those from the respondent) that you want to give to the adjudicator during your hearing. The respondent is also required to give to you and the Tribunal all their documents for the hearing.

At the hearing, you will not be allowed to rely on any documents that you do not list and provide to the Tribunal within the required deadline, unless you are given special permission by the Tribunal to do so. You should object if the respondent tries to rely on documents that were not provided to you forty-five (45) days before the hearing.

Note that providing a document to the Tribunal does not mean that it is now evidence at the hearing. You still must produce the document during the hearing, either through your own testimony or through another witness who can speak to the source and truth of what it says.

If you have already delivered a copy of the document to the other parties twenty-one (21) days after you received notice of the hearing (as discussed above), then you do not need to redeliver that document to the other parties. You will, however, still have to submit the document to the Tribunal.

List of witnesses and summary of intended testimony

Also, no later than forty-five (45) days before your first scheduled hearing, you must send a witness list to the Tribunal and all the other parties in the case. 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 Tribunal.

What is an expert witness?

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 Tribunal, 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. Note that a will-say statement should be no more than a few sentences outlining what you expect that the witness will say at the hearing.

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.

Does the Tribunal sometimes change the deadlines for documents or witness lists?

Occasionally the Tribunal may provide different deadlines for documents or witness lists. If this is the case, you will be given direct instructions about this by the Tribunal. If you want a deadline changed, you must give the Tribunal a full explanation of why you need the change. You can make this request to the Tribunal through a Request for an Order During Proceedings (Form 10) found at the Tribunal website: https://tribunalsontario.ca/hrto/

How do I calculate the deadline for my documents, witness list and summaries?

The Tribunal’s Rules specify that you should count using calendar days, not business days. This means that you must count every day of the week, including the weekends. When you are requested to do something by a certain day, you do the time calculation (i.e., count the days) by excluding the first day and including the last.

Example #1:Time Calculation at the Tribunal

List of arguably relevant documents (Rule 16.1):

Imagine you receive notification on June 2nd that the Tribunal will offer you a hearing on September 15th. Unless the Tribunal says otherwise, you will have twenty-one (21) days to submit your list of documents that are relevant. Exclude June 2 from your counting and begin with June 3rd. Twenty-one (21) days from June 3rd is June 23rd, so that is the day that the list of arguably relevant documents is due.

List of documents to be relied, list of witnesses, and summons (Rules 16.2, 16.3 and 17):

Similarly, unless the Tribunal says otherwise, you will have to provide your list of documents that you intend to rely on and your list of witnesses forty-five (45) days before your hearing. Exclude the day of the hearing, September 15th, and begin counting backwards from September 14th. Forty-five (45) days before September 15th is August 2nd, so that is the day your list of documents and witnesses is due.

NOTE: There is one exception to the rule about time calculation. If the list or documents are due on a holiday, you may submit it on the next day that is not a holiday. So, in the above example, if August 2nd happens to fall on the Civic Holiday, then you may submit the documents on the following day, August 3rd.

If it is at all possible, it is best to send in your evidence as soon as you feel comfortable doing so. You do not want to miss an important deadline.

How do I deliver my documents, witness list and summaries to the other parties?

You can deliver your materials to the respondent in any of the following ways:

• by hand;
• through regular, registered or certified mail;
• with a courier service;
• by fax (consent of the receiving party is needed if the document is more than 20 pages long)
• by e-mail (if the respondent has consented to e-mail delivery); or
• any other way agreed upon by the parties or as directed by the Tribunal.

The Tribunal has special rules to tell you how soon after sending a document you can assume that it was received. This is commonly referred to as when your document is deemed to have been received. The rules on when a document is deemed to have been received vary depending on how the document is delivered as set out below:

• Mail: if sent by mail, delivery is on the fifth (5th) day after the postmarked date;
• Fax: if sent by fax, delivery occurs when the person sending the document receives a fax confirmation receipt, but if the fax confirmation receipt indicates a delivery time after 5 p.m., delivery will be considered to have occurred the next day;
• Courier: if sent by courier, delivery is on the second day after it was given to the courier;
• E-mail: if sent by e-mail, delivery is on the day sent or if sent after 5 p.m., delivery will be considered to have occurred the next day; and
• Hand delivery: if sent by hand, delivery occurs when a document is handed to the party or when left with a person at the party’s last known address.

Every time that you send documents to other parties, you must file a Statement of Delivery (Form 23) and can be found on the Tribunal’s website.

How do I file my documents, witness list and summaries to the Tribunal? What does it mean to file a document?

You file a document with the Tribunal when you fax, email, mail, or deliver a copy of the document to the Tribunal.

When you file documents or other materials at the Tribunal, you must include the following information:

• the name of the applicant and respondent in the Application;
• the name of the person filing the document and, if applicable, his/her representative’s or lawyer’s name;
• the mailing address, telephone number and, if available, e-mail address and fax number of the person filing the document or of his/her representative/lawyer; and
• the Application file number, if available.

You can file documents and other materials with the Tribunal in a number of different ways:

• Fax: by fax to the Tribunal’s fax number;
• Personal delivery: through hand delivery, courier, or regular, registered or certified mail to the Tribunal at its mailing address;
• E-mail: by e-mail – HRTO.Registrar@ontario.ca; or
• As directed by the Tribunal in particular circumstances.

When you send a document to the Tribunal, there are rules that determine when it is considered to be officially “filed”. When a document is considered to be “filed” depends on how it is sent to the Tribunal, as set out below:

• Fax: if sent by fax, when the person sending the document receives a fax confirmation receipt, but if the fax confirmation receipt indicates a time after 5 p.m., filing will be considered to have occurred the next day;
• E-mail: if sent by e-mail, when the person sending the document receives an e-mail confirmation from the Tribunal, but if the e-mail confirmation indicates a time after 5 p.m., filing will be considered to have occurred the next day; and
• Personal delivery; if sent by hand delivery, courier, or mail, on the date of receipt stamped on the document by the Tribunal.

Are there any documents that I do not have to disclose to the other parties?

Yes. Some documents are considered to be privileged and you do not need to share these documents with the other parties. Evidence that is considered to be privileged and does not need to be disclosed includes:

Lawyer/Client Privilege

This form of privilege protects communications between an individual and their lawyer for the purpose of legal advice. You do not need share information about the content of communications (e.g., letters, e-mail or other documents) between you and a lawyer if you communicated with a lawyer at any point in preparing your case.

For example, if you speak to someone at the HRLSC, or if the HRLSC helped prepare your Application or sent you any documents, you are not required to disclose to the Tribunal or the respondent any documents or information relating to the advice given to you.

Litigation Privilege

This form of privilege protects documents prepared for the purpose of the case. When you are representing yourself, any documents you prepare yourself for the hearing most likely do not need to be disclosed to the other parties. This privilege generally includes notes from interviews, statements, memoranda, correspondence, briefs, notes to yourself of mental impressions and/or personal beliefs.

Settlement Privilege

This form of privilege encourages parties to mediate or settle by protecting any evidence of an attempted settlement and communications made by either party during the settlement discussions. Any letters or e-mails that are attempts to reach a settlement with the opposing party do not have to be shared or disclosed. As well, neither side is allowed to use any evidence given during mediation before the Tribunal.

Once I have submitted my documents, witness list and summaries to the Tribunal, will these be considered as evidence by the Tribunal Member at my hearing?

No. The documents that you file at the Tribunal are not evidence that will be relied on in deciding your case unless you introduce the documents at the hearing through your own testimony or that of another witness. In the normal course, every document must be identified and introduced as evidence through the oral testimony of a witness at the hearing. You will need to identify and explain, through your own evidence or that of a witness, how each document relates to your experience of discrimination.

Similarly, when you submit a summary of the intended evidence of a witness, the filed will-say statements are not evidence that the Tribunal can consider in deciding your case. Every witness must testify orally at the hearing unless you get the Tribunal’s permission to have their written evidence accepted.

Can the Tribunal refuse to hear my witnesses or to consider my documents?

In some cases, the Tribunal may think that some witnesses or documents are irrelevant or repetitive. The Tribunal might decide to issue a Case Assessment Direction in advance of the hearing to let the parties know that the evidence may be restricted. See Rule 18 of the Tribunal’s Rules.

If a Case Assessment Direction is issued in your proceeding, you will be given an opportunity to address this at or before the hearing.

What could happen if I do not disclose my documents and witness statements?

You should be aware that failing to follow the Tribunal’s Rule 16 (exchange of documents) and Rule 17 (witness statements) may have negative consequences for your application, including dismissal of your case without a hearing. Human rights applications are serious matters. The Rules exist and must be followed because 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).

Do not assume that steps which you have already taken will be enough to satisfy the requirements of Rules 16 and 17. 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. Rule 16.2 requires that you provide the documents to the Tribunal. Even if you have previously provided documents to the Tribunal, you must 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.

You will want to prepare each of your witnesses to speak at the hearing. Your role is to ask your witness to answer questions about the events at issue. This is called direct examination. Your questions should help the witness to remember and testify about their knowledge of the facts.

Before the hearing, you should prepare a list of the questions that you want to ask each witness. Beside each question, you should write the evidence that you expect the witness to give. You must bring a copy of this list with you to the hearing. You can read from the list during the hearing so that you don’t forget any questions.

If the Tribunal has instructed you by way of a CAD to ensure that your witness statements be written with sufficient detail to allow them to be adopted as evidence-in-chief, you may not need to question your witness at the hearing. Instead, the HRTO adjudicator hearing your matter may accept the contents of the statement that you wrote for that witness as their evidence in support of your application. Your witness will still be subject to questions from the other parties, known as cross-examination, as well as questions from the adjudicator.

What is a direct examination?

A direct examination is the questioning of a witness by the party who has called them to testify. The purpose of direct examination is to bring out evidence to support a fact that the questioning party wants to be proved.

When making your list of questions, be careful not to create what are known as leading questions. Leading questions are not allowed because the answer to the question is implied in the way that the question is asked (i.e., the question leads the witness to the answer). The other parties can ask the Tribunal member to not allow you to ask a leading question. Therefore, you need to make sure that your questions are phrased openly.

Example #2: Leading and Non- Leading Questions

Sue is conducting a direct examination of her co-worker about what her boss is alleged to have said about the relative abilities of women and men to do a job at her work.

Leading Question: “Did you hear our boss tell me that women couldn’t do the job as well as men?”

This question would not be allowed.

Non-Leading Question: “Did you hear the conversation between our boss and me?”

Follow-Up Non-Leading Question: “What did you hear him say to me?”

Further Follow-Up Non-Leading Question (if necessary): “Did you hear him talk to me about men and women at work?”

These questions would be allowed.

It is a very good idea to practice asking your questions before the hearing. You are allowed to go over the evidence with each witness and to show them all your questions. You can discuss with each witness how they will answer your questions, but remember that it is important that your witnesses testify using their own words. If your witnesses sound like they have been coached to give specific answers, they may not be believed even though they may be telling the truth.

It is important to remember the following:

• • you are not allowed to tell your witness what to say. They must say what they remember and they must say this in their own words. They will be asked to swear or affirm that their evidence is truthful;

• • your witness cannot have your list of questions or any other kinds of notes for themselves when they testify.(the same is true for your own testimony);

• • you should caution your witness not to argue with whoever is asking them questions, and to give the answer to a question if they know what the answer is;

• • if your witness does not understand the question or does not know the answer to the question they have been asked, they should say so rather than trying to guess an answer. The witness can request that a question be asked again or re-worded; and

• • tell your witness that the respondent or the respondent’s lawyer will be able to ask questions after you have asked all your questions. This is cross-examination so leading questions are permitted. The questions can relate to any relevant matter in the case, not just things that you have asked about. Your witness will need to listen carefully and only answer the question asked.

Remember that you will also be allowed to ask the respondent’s witnesses questions. This is known as cross-examination. You should prepare some questions for these witnesses also. You do not need to worry about asking leading questions to the respondent’s witnesses, because when you are cross-examining a witness, you are allowed to ask them leading questions, and in fact it is a good idea to do so.

You will have to speak several times during the hearing. You will need to prepare well ahead of time and remember that you can bring notes to the hearing that you think will help you speak at the hearing.

Opening Statement

At the beginning of the hearing, both parties usually are given the opportunity to make an opening statement. An opening statement is a chance for you to give a brief summary of your case, to tell the Tribunal which part of the Code the respondent violated, to list the facts you will try to prove and to provide the Tribunal with an overview of the evidence you will be submitting to prove your case.

You should prepare your opening statement in advance. You should write out your whole opening statement and practice it. Bring the written statement with you to read at the hearing. The opening statement does not need to be long – a few minutes are enough.

Your Oral Testimony

Before your hearing, you should practice going over all the facts you want to describe. You should also review any documents or other evidence that may help prove those facts. At your hearing, you will be required to tell your story and identify any documents that relate to your experience of the discrimination. You will not be able to read from notes. Make sure that you review all the documents and that you are prepared to explain how they relate to the events that occurred.

If the Tribunal has instructed you by way of a CAD to ensure that your witness statements be written with sufficient detail to allow them to be adopted as evidence-in-chief, the HRTO adjudicator hearing your matter may accept the contents of your witness statement as your evidence instead of requiring you to testify orally at the hearing. You will still be subject to questions from the other parties, known as cross-examination, as well as questions from the adjudicator.

Questions for Witnesses

As discussed above, you will have the opportunity to question your own witnesses and to cross-examine the witnesses called by other parties at the hearing. You should prepare lists of questions ahead of time for each of your own witnesses and to use in cross-examining the other side’s witnesses. It will help you to make notes beside each question setting out what you expect your witnesses to say.

Closing Statement or Submissions

The Tribunal may ask you to give a closing statement at the end of the hearing. You should prepare a draft closing statement before your hearing. This is an opportunity for you to summarize all the evidence in your favour that has been presented at the hearing. You should state why you think there has been a violation of the Code and what remedy is appropriate and why.

You will probably need to make changes to your draft closing statement based on what happens at the hearing. See below for more information about closing statements.

Every hearing room is slightly different, but there will be tables set up for each of the parties on either side of the hearing room and the Tribunal member will sit at the front of the room.

If you need any special accommodations, you should make a specific request to the Tribunal in advance of the Hearing. The Tribunal has an accommodation policy that is posted on its website in their policies section.

To accommodate means to remove any barriers, which prevent people from gaining access to and fully participating in the hearing.

An accommodation can mean anything that you need in order to participate fully in the hearing. Examples include getting an interpreter, ending the hearing early so you can pick up a child from school, or to allowing you to stand while you give testimony if it hurts your back to sit for long periods of time.

You should call the Tribunal member “Vice-Chair [last name].”

The Tribunal member will usually begin the hearing by giving his/her name and by asking each party to state their name. If there are any observers in the hearing room, the Tribunal member will usually ask them to introduce themselves.

Before the hearing gets fully under way, the Tribunal member will take care of any preliminary matters and discuss any details of how the hearing will be conducted. This is the time when you can ask for clarification of the hearing process or raise any issues or questions. For example, one of your witnesses may not show up.

If he or she was supposed to testify on the first day of the hearing, but is not present, you should let the Tribunal member know right away as a preliminary matter. You can ask the Tribunal member for a brief delay so that you can try to contact the witness.

If you are unable to find your witness, the Tribunal will likely be reluctant to lose any time in the hearing and may ask you to proceed with another witness, out of your intended order. The Tribunal member will probably want to know what evidence you were expecting the witness to provide. If the evidence is crucial, you may want to request an adjournment in order to have the witness attend at another time. The Tribunal will usually be very reluctant to agree to this, and will likely want an explanation for the witness failing to show up as expected. It is possible that the Tribunal will order that you must proceed without the witness.

At the beginning of the hearing, the Tribunal member may also talk about any jurisdictional issues (i.e., issues relating to the Tribunal’s authority to hear the Application) or any problems related to the previous exchange of documents or witness lists.

After all preliminary matters have been taken care of, the Tribunal member may ask you to give an opening statement. As discussed above, your opening statement is a chance to summarize your story as clearly and briefly as possible for the Tribunal.

Following your opening statement, the respondent(s) will be able to give an opening statement as well. Sometimes the Tribunal member will instead ask a respondent to wait and give an opening statement when you are finished giving your evidence and presenting your witnesses for examination and cross-examination.

Before anyone gives testimony at the hearing the Tribunal member will require that person to give a solemn promise to tell only the truth when giving evidence. Individuals have the option of swearing on a religious book or item of their choice (called swearing in) or giving a secular solemn promise (called affirmation).

As the applicant, you will usually be asked by the Vice Chair to present your evidence first. You will probably be your own first witness, and begin by telling your story. You will need to bring with you and identify any relevant documents that you have shared with the other parties. Even though you have filed your documents at the Tribunal, the Tribunal member can only consider the documents in deciding your case if the document is introduced by you or one of your witnesses in your testimony during the hearing. You must explain how the documents relate to the events that occurred.

When you give your evidence, you may also want to refer to any written documents that the other parties have filed at the Tribunal. If you can explain why a document helps your side of the case or is unreliable and should not be considered.

After your own testimony, you can ask your first witness to testify. Start by asking your witness to state their name and relationship to you. Then ask the questions that you have prepared to help the witness tell the Tribunal about their knowledge of the facts and events that support your case.

Remember you are not allowed to ask your witness leading questions that either suggest the answer you want, or that assume some fact that is in dispute between the two sides. If your witness seems to be forgetting an important detail, you can try to ask them questions to help jog their memory. The more you prepare a witness before the hearing, the more likely the witness is to remember the evidence that they need to give in their testimony at the hearing.

You can also use your witnesses to identify any documents that you filed with the Tribunal if he or she is familiar with the document and can answer questions about it. You can show the witness the document and ask, for example: “Do you recognize this pay stub?” or “Did you receive this e-mail?”

Before you finish questioning the witness, quickly go over your prepared list of questions to make sure that you have asked your witness every question. Also check your notes beside each question in order to be sure that each witness has testified about all the information he or she has that will help you prove your case.

Sometimes the Tribunal member may interject in the questioning of a witness or ask the witness further questions at the end of the testimony. This should not be viewed as a bad thing. It shows that the Tribunal member is listening and engaged with what the witness is saying. The questions asked by the Tribunal should help you to figure out what the Tribunal member needs to know in order to decide your case. The Tribunal member’s questions can tell you what parts of the case he or she is having trouble understanding or what you need to emphasize.

Following questions from the Tribunal member, both parties may be given the opportunity for a follow up question to the witness.

What is a cross-examination?

A cross-examination is when you question the respondent’s witnesses after the respondent has questioned them or when the respondent questions your witnesses after you have questioned them. During a cross-examination, any type of question is allowed as long as it is relevant to the case.

Usually the Tribunal member will provide you with the opportunity to conduct a re-examination after the cross-examination of one of your witnesses or after the Tribunal has posed questions. This will be your opportunity to ask about any new information that was brought up through the cross-examination. Your questions must be confined to issues that arose during the cross-examination or the examination by the Tribunal member.

After you have presented all your evidence, the respondents will have the opportunity to present their evidence and call their witnesses. Sometimes a witness on the other side will testify about something when they have no direct knowledge of the facts. For example, a witness may try to tell the adjudicator about something that they heard from a person who is not testifying at the hearing. You can ask the Tribunal to disallow or to exclude this kind of evidence. It is technically hearsay (i.e., not within the direct knowledge of the person testifying).

The Tribunal member has a very broad discretion to allow evidence, even if it is hearsay or otherwise not something that a judge in a court would allow. If the evidence is relevant and not subject to privilege, the Tribunal will likely allow the evidence to be admitted at the hearing. But the Tribunal will generally not give much consideration or weight to evidence of this kind, particularly if there is direct evidence from another witness on the same incident or event. (See the discussion above, at p. 19 about privilege).

It is important that you object if the respondent tries to rely on testimony or documents that were not disclosed to you in the will-say statements or in the exchange of documents prior to the hearing. If you are taken by surprise, you can bring this to the attention of the Tribunal member. He or she may refuse to allow the respondent to introduce the new evidence. If the Tribunal allows the respondent to rely on new evidence, you may be given some extra time to review and respond to that evidence. Or, you may be allowed to introduce new evidence yourself to counterbalance the respondent’s new evidence.

After each of the respondents’ witnesses testifies, you will have the opportunity to ask each witness questions as your cross-examination. While you are not allowed to ask leading questions of your own witnesses, you can ask leading questions to the witnesses of the opposing side. For example, you could ask a witness “Did you not hear Mr. Smith make racist comments in the lunch room?”

As discussed above, the Tribunal will give each side the opportunity to give a closing statement of their case. During your closing statement, the Tribunal member may ask you questions about your case, particularly if there are areas in which he or she may have some concerns. You should try to answer these questions by referring to the testimony and documents that you think support your case.

If there are any weak spots in your case, you should try to address those areas directly rather than pretending they do not exist. For example, if the trustworthiness or credibility of your witnesses has been questioned by the respondents, you should state why your witnesses should be trusted.

Similarly, if you believe a witness of the opposing party is untrustworthy, you should state why that witness should not be believed and point out how their evidence is inconsistent or contrary to the testimony of other more reliable witnesses.

If you have found decisions of the Tribunal in cases that are similar to yours, or that address the issues in your case, you should provide copies of these decisions to the Tribunal member and to the other parties, and explain why the decisions help your case. As discussed at the beginning of this guide, you can find past decisions by visiting their website.

The information in your Application and other information about your case will in the normal course become public if your Application progresses to a hearing and if a decision is written for your case.

Additionally, under the law, the Ontario Human Rights Commission is entitled to see your Application and any filed Responses, and the Tribunal may be required to share information in your Application in response to any request to the Tribunal made under the Freedom of Information and Protection of Privacy Act R.S.O. 1990, c. F. 31.

The Tribunal has policies for responding to requests for information, as well as requests to keep information private. The Tribunal will respond to requests by balancing privacy interests against the public interest in having a transparent legal process. For more information about this, you should contact the Tribunal directly.

The Tribunal is obligated to provide language interpretation or sign language interpretation to the parties if such services are needed in order for parties to participate fully in a hearing or mediation. These interpreters will attend the hearing and/or mediation conference. The cost will be paid by the Tribunal.

In order to request interpretation services, you should contact the Registrar’s office at the Tribunal as soon as you are given the hearing date. It is also a good idea to call the Tribunal to confirm the interpreter a few days before the hearing.

The Tribunal will accommodate any party or witness according to their Accessibility Policy, available on its website. If you need an accommodation to partake in the any process related to the Tribunal, you will need to contact the Tribunal’s Registrar, whose contact information appears below.