At a hearing, the Complainant gets a chance to prove their complaint and the Respondent gets a chance to defend themselves. A Human Rights Adjudicator listens to all sides of the story, reviews and considers evidence and decides if discrimination or harassment happened. The Adjudicator must give written reasons for their decision and can make certain binding orders. Adjudicators are independent of the Human Rights Commission. They have experience, knowledge and training in human rights law. A hearing must happen without undue delay.
Important to Remember: The Human Rights Commission supports and helps navigate the parties through the hearing process. We can explain what happens during the hearing and answer general legal questions. We can also help you understand how to format a witness statement and/or get a summons for a witness to attend the hearing. The Commission’s lawyer cannot give you legal advice or tell you how to prove your case. This means that they cannot tell you what evidence is relevant, what legal arguments to make, who to call as a witness or what questions to ask them.
Make a Plan
The best way to prepare for a hearing is to make a plan:
- read all the information you have about this complaint.
- think about how you would explain your story to another person who does not know what happened.
- write down your story in point form and in the order it happened.
- list the facts you have to prove your case and the documents or witnesses (evidence) you have to support your position.
- prepare a list of questions that witnesses need to answer and the purpose of each question. If the Adjudicator does not ask these questions, make sure you raise it when given the opportunity.
- think about what you are asking the Adjudicator to do and why.
What do you need to prove?
If you are the Complainant (the person making the complaint):
- that you were unfairly treated (discriminated against or harassed)
- that you have one of the protected personal characteristics (prohibited grounds)
- that there is some connection between the discriminatory treatment and one of the prohibited grounds
- that you suffered a loss or a disadvantage as a result of the discrimination or harassment
- the type of remedy/compensation you are looking for
The Complainant does not need to prove that discrimination was the sole, or even the primary, factor in the unfair treatment that gave rise to the complaint. It is enough if one of the reasons for the treatment was discriminatory. You do not need to prove that the Respondent intended to discriminate or harass you.
For example:
I was fired by ABC Company after I told them I was pregnant. I am asking for money for lost income and general damages for pain and suffering.
Allegation: I was fired because I am pregnant
Evidence: I told my manager I was pregnant on September 27. We had a meeting on September 29th to discuss possible accommodations at work. My manager told me that they had safety concerns about me working while pregnant and they did not want me taking too much time off work in the future. The meeting got heated and I was fired
Allegation: I lost $5,000 in income
Evidence: My pay stubs show that I earned $2,500 per month. I tried to find another job, but it took me two months (I have copies of all the applications I sent and notes of the interviews I had).
Allegation: I suffered injury to my dignity, feelings and self-respect.
Evidence: I was very upset about getting fired and that ABC Company didn’t think I could do a good job while pregnant. My husband and friends saw me upset. I wrote about my feelings in a journal
If you are the Respondent (the person responding to the complaint):
You get a chance to show the Complainant’s version of what happened is not correct. It is possible to have another reason for what happened or a legal defense to the complaint.
You also get to explain why the Complainant is not entitled to receive the remedy/compensation they are asking for.
For example:
I own ABC Company and am responding to a complaint that alleges I discriminated against an employee on the ground of sex (pregnancy). She says that she was fired as soon as we found out she was pregnant and that we did not try to accommodate her.
Allegation: Employee was fired because of her pregnancy
Defense: She quit
Evidence: We had a meeting on September 29th to discuss possible accommodations at work. Our employees have physically demanding jobs and are exposed to noxious chemicals. We got into an argument at the meeting and the employee told me she was “leaving and never coming back” and then she walked out. Another employee who works in the next office will say that he heard the entire argument
Defense: A large part of the job is to handle noxious chemicals. I run a small company and there was no one else who could do the work. I tried to accommodate the employee but had no other work to give her.
Evidence: I only have one other employee in this area, and handling noxious chemicals is half the job. I think the employee would agree with this. I will say that I suggested she take a leave until she could get a medical note to say she can work with noxious chemicals. I will say that I couldn’t think of any other option that would work, and then she quit during our argument.
Written Hearings
Hearings done in writing are very straight-forward. The parties can file a final written submission or say they have nothing more to add. The Adjudicator can also ask the parties to comment in writing on specific issues raised at the pre-hearing conference meeting.
Written hearings are encouraged and can be done in cases where:
- the parties consent
- there is a legal or policy question in dispute
- all documents and records are disclosed, or
- the parties can address all of the issues in writing
In-person Hearings
In-person hearings can take place by phone, video conferencing or face-to-face.
Most in-person hearings are conducted by video conferencing with the Adjudicator, all parties and witnesses joining the hearing remotely using a computer or smartphone. Learn more about hearings held by video conferencing here: Guide to Video Hearings
Occasionally in-person hearings are held face-to-face in the Human Rights Commission’s Boardroom. We are located on the 2nd floor of the Regatta Plaza building on 84-86 Elizabeth Avenue.
This is what our boardroom looks like. It has video/phone conferencing and a computer with internet access. The Regatta Plaza building is fully accessible and there is public parking.
Reminders for all in-person hearings:
- Plan to arrive/log-in early to get settled/connected.
- Bring paper and a pen so that that you can take notes. This makes it easier to ask the Adjudicator to follow up on a point/question when given the opportunity.
- Ask for help if you do not understand a question or are not sure what to do. The hearing process can be stressful at times, but it is the Adjudicator’s job to help you understand what is happening. They may re-phrase the question or explain it.
- Consider bringing a family member, friend or other support person with you (as long as they are not a witness)
Parties are expected to behave and communicate in a respectful manner to each other, Commission staff and the Adjudicator. The parties should try to:
- Avoid interrupting anyone that is talking
- Dress neatly and professionally
- When asked, speak clearly and loudly
- Do not use obscene or abusive language
- Use a person’s indicated name, title or pronouns, in written or verbal communication
- Turn off your cellphone or other electronic devices (unless in use for a video hearing)
Day of Hearing
The general procedure of a hearing is as follows:
The Adjudicator will call the hearing to order and confirm:
- general housekeeping items
- names of parties attending the hearing
- if the hearing is being recorded
- that the parties understand the hearing process to be followed
- what evidence is accepted and being relied upon
- whether there are any preliminary/procedural matters to be dealt with
The Adjudicator asks the Complainant to explain, under oath or affirmation, what happened to them, the information and/or documents (evidence) they have to support their position and what they are asking the Adjudicator to do and why. The Adjudicator then questions the Complainant and asks the Respondent if there are any other questions that need to be answered. The Adjudicator asks the Complainant to answer those questions.
The Adjudicator asks the Respondent to explain, under oath or affirmation, their side of the story. The Adjudicator then questions the Respondent and asks the Complainant if there are any other questions that need to be answered. The Adjudicator asks the Respondent to answer those questions.
The Commission’s lawyer, if present, raises any public interest issues. The Adjudicator asks questions of the Commission’s lawyer, if there is a public interest in doing so.
The Adjudicator asks questions of other witnesses, if they are present. The Adjudicator asks the parties if there are any other questions that need to be answered.
In cases where the Adjudicator is taking a less active role, the parties may prefer to lead their own evidence and/or question some witnesses themselves.
The Complainant gives a brief summary of why they feel they were discriminated against and/or harassed and the remedy, decision or outcome they are seeking.
The Respondent gives a brief summary of why they did not discriminate or harass the Complainant and what they want to happen.
The Complainant responds to any new issues raised by the Respondent in their summary.
The Adjudicator asks the parties if there is anything else they want to say.
The Adjudicator can ask for written legal arguments, if appropriate in the circumstances.
The Adjudicator tells the parties what happens next and ends the hearing.
Rules of Evidence and Witnesses
A human rights hearing is informal and non-adversarial. The normal rules of evidence do not apply in an informal hearing. For example, hearsay evidence is allowed. It is hearsay evidence when a witness tells an Adjudicator about something that they did not personally see or hear, but that was told to them by someone else (who is not a witness).
The Adjudicator’s job is to look at each piece of evidence and determine its credibility, relevance and what weight or “probative value” it should be given.
Witnesses are usually not allowed in the hearing until they are called to testify.
Written Decision
An Adjudicator has the powers of a commissioner appointed under the Public Inquiries Act and can make orders pursuant to section 39 of the Human Rights Act.
A complaint is either dismissed or a finding of discrimination or harassment is made.
The Adjudicator must give written reasons for their decision.
Depending upon the hearing format and how complicated the case is, the parties should be prepared to wait several months to receive a written decision. The following table sets out an estimate of how long it will take an Adjudicator to make their decision:
Length of Hearing Estimated Timeline
- Written hearing 2-3 months
- 2 days or less 4-6 months
- More than 2 days 6 months or longer
Entry of an Order
Section 41 of the Human Rights Act says that an Order may be filed with the Trial Division and, upon filing, is enforceable in the same manner as an Order of the Court.
Appealing a Decision
If either of the parties disagrees with the decision of the Adjudicator, they may appeal the decision to the Supreme Court of Newfoundland and Labrador (General Division). Section 42 of the Human Rights Act states that an appeal must be filed within 30 days of receiving the Board of Inquiry’s written decision. Contact the Supreme Court (General Division) Court’s website for more information on how to file an appeal.