Preparing for a Hearing at the Tribunal

This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (January 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.

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Can I resolve my case before a hearing?

Yes. For all applications filed after June 1, 2025, you will be required to attend mediation if a Respondent files a Response.  The goal of mediation is 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. You do not have to come to an agreement during the mediation if you are not happy with the proposed resolutions. For more information on mandatory mediation, see the Tribunal’s FAQ: Change from Voluntary Mediation to Mandatory Mediation.

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 up to you to ask if you want the settlement details to be shared with the public. Some respondents may agree to be open about the agreement details 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.

What are the advantages of resolving my application at mediation?

Mediation can be a faster way of getting results for an application and gives you more options and power over a resolution over at the Tribunal. You may find that a mediation is a better experience than a hearing because:

• 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 and 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 for future employment) you may be able to bargain for that at the mediation. At a hearing, the result is determined by the Tribunal adjudicator who hears your case and makes a decision. and you do not have control over the outcome, other than presenting your case.
• 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. At a hearing, you cannot negotiate the final decision made by an adjudicator. It’ is also possible they may also rule against you and decide discrimination did not occur, meaning no remedy will be issued.

You will still have the opportunity to proceed to a hearing. 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. You will typically be assigned a new Tribunal member to adjudicate your hearing, from the one who acted as a mediator.

For more information about the mediation process, see the HRLSC’s guides on Preparing for Mediation at the Tribunal.

What is the purpose of a hearing?

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 Human Rights Code, and if so, what remedy the applicant should receive.

The Tribunal conducts its hearings according to five (5) core principles that direct the Tribunal’s Rules and policies:

• Physical and functional accessibility: (i.e. 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).

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 Human Rights Code is followed and there are steps taken to address a violation to try to prevent it from happening again.

Remedies under the Code can involve may or may not involve money.

Learn more about different remedies and how to include them while making an application.

What will I have to do at the hearing?

Your goal at the hearing is to prove that the Human Rights Code was violated and that you should receive some kind of remedy. You must prove that your rights under the Code were violated and that you deserve compensation or some other order or remedy to address your experiences of discrimination or harassment. 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 of that treatment, 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.

Do I need a lawyer at my hearing?

No. 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. Most people who file an Application at the Tribunal do so without the assistance of a lawyer and even at mediation and hearings, many people represent themselves.

How can I get ready before my hearing?

Getting ready for your hearing involves a fair amount of work, so you should get started as soon as you can. The more knowledge you have of the hearing process and human rights legal principals, the better you will be at presenting your case at the Tribunal.

Below are five (5) basic steps to getting ready for your hearing. NOTE: You do not need to follow each step in the order that it is set out here. Frequently, you will need to be doing more than one step at a time depending on what stage you are at in the application process.

Step 1: Learning about the Law and Hearing Process

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.

How do you find past decisions of the Tribunal?

All of the Tribunal’s decisions can be found on the Canadian Legal Information Institute (CanLII) website. You can find more information on how to conduct searches on the CanLII Search Help page.

Step 2: Preparing Your Evidence

The only information that the Tribunal can use to decide your case is the information you and the other party provide as evidence during the hearing. The information in your application and other documents is not itself evidence, but the contents 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.

How do I decide what evidence to disclose?

The Tribunal wants to hear evidence that is relevant the issues in your Application, the Response, and the Reply. Essentially, 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 writing down 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 that shows the opposite, such as an email from a former supervisor that acknowledges your success 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 other witnesses? Is there someone who saw the discrimination and might be willing to 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?

What is acceptable evidence?

The Tribunal will accept many sorts of things as evidence in your case. For information on how and when you must file evidence with the Tribunal or disclose evidence to other parties, please see the Step 3: Disclosing Your Evidence: Relevant Documents and Witnesses.

Here are some examples of the different kinds of evidence:

• Oral Testimony: The applicant, respondent, and witnesses tell the adjudicator what happened. This is called testifying. As the applicant, you can testify yourself and you can bring other people to testify as witnesses at your hearing about events directly related to the discrimination. You can ask your own witnesses questions in front of the adjudicator, and you can also question the witnesses brought by the other side.
• Documents: Witnesses can also submit written evidence at their hearing, as long as it is submitted before the hearing. This could include letters, emails, pay stubs, bills, leases, or contracts. For example, if your application is about being discriminated against at work, and you received a letter from your employer discussing the incident, you can ask the Tribunal adjudicator at your hearing to allow the letter to be used as evidence, as long as you can identify the letter as one that you received from the employer when you testify. To do this, your witness will need to identify it and explain why it is significant evidence for 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: In some cases, it may be relevant to submit items 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 some situations, particularly if a witness is not available for the hearing, you might ask the adjudicator to accept a written statement called an affidavit, which is made under oath or solemn affirmation (a promise and declaration that you are telling the truth; you can rely on a religious oath or a non-religious solemn affirmation). However, oral testimony from a witness is always considered the most reliable evidence and is given the most consideration or weight by the adjudicator. 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. This is someone who may not have a direct link to you or your incident, but can speak as an expert about a certain topic they specialize in.  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.

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:

Proving Losses from Discrimination:

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 or able to come for various reasons, you can give them a summons – a legal document requiring them to attend the hearing (details below). Sometimes a witness will prefer to be asked to appear through a summons because they can show the document to their employer, making it easier for them to attend the hearing on a workday.

What is a summons?

A summons is a document that legally requires a person to attend a hearing. Delivery of a summons to a witness is the responsibility of the party who wants the person to be there.

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. If your witness has to travel to testify in person, you must provide 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 (a legal process where a person is accused of violating a court order or failing to respect the court’s authority, and could face fines or imprisonment)

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.

Step 3: Disclosing Your Evidence: Relevant Documents and Witnesses

When do I have to disclose my evidence?

You must share information about the evidence that you will be relying on well before the hearing. This is called “disclosure”. The respondent is under the same obligation to give you their information, including documents 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 and prevent any surprises. A party will usually be prevented from relying 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 (This includes your own testimony – remember that you are also considered a witness).

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. When the Tribunal has issued a CAD that sets out your disclosure deadlines, they 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

You must deliver a list and copy of all the documents that you have that are arguably relevant to the other side involved in your case either within or before the twenty-one (21) days after the Tribunal sends you a confirmation of hearing, or any deadline set by a CAD. 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 want to present the document at the hearing, and even if the document might be helpful to the other side. You cannot prevent a document from being shared, even if you think it might hurt your case.

The respondent also needs to provide you with a list and copy of all their arguably relevant documents by the same deadline. If you believe the respondent has documents that are arguably relevant and that have not been shared with 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 shared. 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, or any deadline set by a CAD, 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 did 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.

Note that providing a document to the Tribunal does not mean that it is now evidence at the hearing. You still must present 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 deliver that document again 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, or any deadline set by a CAD, 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 (that includes yourself) as well as a brief statement summarizing each witness’s expected evidence.  If your application is detailed and clear, your own witness statement may simply say that your evidence will be what you stated in the application.

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 your disability could be accommodated.

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 summary of their evidence. The respondent also needs to provide you with a witness list and witness statements for each witness in the same amount of time. If the respondent tries to use a witness who was not on their list and you have not received a summary of their intended evidence for, you should object.

The respondent’s documents and witness statements will be helpful to you as you prepare your case. You can use the documents provided by the other parties if you think they will help you prove your facts. You will be able to ask questions to the respondents witnesses during the hearing, so you can use their summary to prepare.

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).

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, count the days by excluding the first day and including the last.

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.

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 counting from 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.

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.

Please note: as of June 1, 2025, the HRTO no longer accepts documents by fax.

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.

The Tribunal has special rules to tell you how soon after sending a document you can assume that it was 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 assumed on the fifth (5th) day after the postmarked date;
• Courier: if sent by courier, delivery is assumed on the second day after it was given to the courier;
• E-mail: if sent by e-mail, delivery is assumed on the day sent or if sent after 5 p.m., delivery will be assumed 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.

How do I file my documents, witness list and summaries to the Tribunal?

Filing a document with the Tribunal is when you 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:

• Personal delivery: through 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.

Please note: as of June 1, 2025, the HRTO no longer accepts documents by fax.

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:

• E-mail: if sent by e-mail, it is considered filed when the person sending the document receives an e-mail confirmation from the Tribunal. 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 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. This includes:

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 will not be relied on as evidence in deciding your case until you present the documents at the hearing, either through your own oral testimony or another witness’s. Typically, every document must be identified and introduced as evidence through oral testimony. You or the witness will need to identify and explain how each document relates to your experience of discrimination.

Similarly, when you submit a summary of the intended evidence of a witness, the filed witness 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 (CAD) 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 respond and take action to address any the problems that HRTO has identified with your documents and witnesses. This is done either at the hearing or in a time before it, such as during a conference call. An example of such problems may include specific requirements or direction for one of your witnesses to follow.

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

Failing to follow the Tribunal’s Rule 16 (exchange of documents) and Rule 17 (witness statements) could result in the Tribunal dismissing your application and cancelling your hearing date(s). Human rights applications are serious matters and the Rules must be followed because the Tribunal has an obligation to ensure that both sides are dealt with fairly.

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 all of the documents in advance 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, the HRTO’s Rules require you to provide them again to ensure you meet their disclosure requirements. You must do so again before the hearing or at least advise the Tribunal that you intend to rely on all of the documents you have already provided. Being extra-careful, and re-share your documents to help ensure that both the Tribunal and Respondents have time to look them over. If the adjudicator feels this has not happened, they could decide to not accept the documents as evidence or they may stop the hearing to give everyone a chance to view them.

Witness statements 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. Remember that you are considered a witness and you must file a witness statement for yourself. 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.

Step 4: Preparing Your Witness to Speak at the Hearing

You will want to prepare each of your witnesses to speak at the hearing. Your role is to ask your witness questions to answer 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 through a CAD to ensure that your witness statements be written with enough 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 may accept the contents of the statement for that witness as evidence in support of your application. Your witness may still be asked 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 where a witness is questioned by the person who 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. Note that leading questions are allowed during cross examination.

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 during direct examination.

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. 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 with them when they testify. (The same is true for your own testimony);
• you should advise 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. In cross-examination, 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 as well during cross-examination. You should prepare some questions for these witnesses 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.

Step 5: Preparing Yourself to Speak at the Hearing

You will have to speak several times during the hearing, especially if you are self represented (i.e. you do not have a lawyer). 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 when giving your oral testimony as a witness. 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 may accept your witness statement as your evidence instead of requiring you to testify orally at the hearing. You still can be asked questions from the other parties, known as cross-examination, as well as questions from the adjudicator.

Questions for Witnesses

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.

Be prepared to make changes to your draft closing statement based on what happens at the hearing. See below for more information about closing statements.

What Will Happen the Day of the Hearing?

Introductions

The Tribunal member will usually begin the hearing by giving their 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.

You should call the Tribunal member “Vice-Chair [last name]”, if they are a Vice-Chair of the Tribunal, or “Member [last name]”, if they are a Member.

Preliminary Matters

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.

What if your witness doesn’t show up for the hearing?

If one of your witnesses that was supposed to testify on the first day of the hearing 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 planned 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, which means rescheduling 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  or any problems related to the previous exchange of documents or witness lists. An example of a jurisdictional issues could be if your case relates to housing, it may also or just be a case for the Landlord Tenant Board. See our guide on choosing a legal forum for more details on jurisdictional issues for HRTO applications.

Opening Statements

After all preliminary matters have been taken care of, you will have the opportunity to give an opening statement. This should be a brief summary of your case to explain which part of the Code the respondent violated, list the facts you will try to prove, and provide the Tribunal with an overview of the evidence you will be submitting to prove your case. You can write this statement down and read it at the hearing. It only needs to be a few minutes.

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 until after you give your evidence and present your witnesses for examination and cross-examination to give their opening statement.

Solemn Promise

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).

Presentation of the Evidence – Your Oral Testimony

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 will begin your evidence by telling your story. You will not be able to read from notes when giving your oral testimony as a witness 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 their decision if it is presented 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 the document helps your side of the case or is unreliable and should not be considered.

Direct Examination of Your Witnesses

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 is 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.

Tribunal Member Questions

Sometimes the Tribunal member may interject in the questioning 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 ask questions to the respondent’s witnesses after the respondent has questioned them. The Respondent will also be allowed to cross examine your witness after you have questioned them.  During a cross-examination, any type of question is allowed as long as it is relevant to the case. 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 lunchroom?”

Re-examination

Usually, the Tribunal member will give you the opportunity to conduct a re-examination after the respondent has cross-examined 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 were discussed during the cross-examination or the examination by the Tribunal member, not new topics.

Presentation of the Respondent’s Evidence

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 third person who is not testifying at the hearing. You can ask the Tribunal not to allow kind of evidence. It is technically hearsay (i.e., it is not within the direct knowledge of the person testifying).

It is up to the Tribunal member what evidence to allow evidence, and it may differ broadly from one Tribunal member to another. They may 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 (evidence that legally is not required to be disclosed), 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.

It is important that you object if the respondent tries to rely on testimony or documents that were not disclosed to you in the witness 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. They 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 be allowed to introduce new evidence yourself to counterbalance the respondent’s new evidence.

Closing Statement (or Closing Arguments)

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 respondents say your witnesses aren’t trustworthy, you should explain 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 other Tribunal cases similar to yours, or that address the issues in your case, you should provide copies of those decisions to the Tribunal member and to the other parties and explain why the decision made in those cases should be applied here. You can find past decisions on the Canadian Legal Information Institute (CanLII) website.

When should I expect a decision?

In most cases, the Tribunal will “reserve” its decision, which means that it will not decide the case the same day of the hearing. Instead, it will write a decision after reviewing the evidence, submissions and relevant law. Depending on the length of the hearing, the number of parties and the amount of evidence presented at the hearing, it may be several months before you receive a decision from the Tribunal.

What else should I know?

Public information

The information in your application and other information about your case will usually 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. The Tribunal may be required to share information in your application in response to any one who requests it from the Tribunal 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.

Language Interpretation

The Tribunal is obligated to provide language interpretation or sign language interpretation to the parties if 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. This is free for you; the cost will be paid by the Tribunal.

In order to request interpretation services, you should make a request for accommodation using the Tribunal’s Accommodation Request Form 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. See the Tribunal’s website for more information on how to request an accommodation.   

Accessibility

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 should make a request for accommodation using the Tribunal’s Accommodation Request Form. See the Tribunal’s website for more information on how to request an accommodation.

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