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Getting Ready for a Hearing

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. 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.

Learn more about our Human Rights Adjudicators here.

 

Rules of  Procedure

 

Important to Remember: The Human Rights Commission is here to support the parties at a hearing. We can explain what happens during the hearing and answer general legal questions. We can also help you get subpoenas (an order to appear) for document/witness disclosure or affidavit/witness statements. 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 an hearing is to make a plan:

• Read all the information you have about this complaint.
• Learn more about the law and other human rights decisions here:
https://thinkhumanrights.ca/human-rights-case-law/.
• 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 to ask witnesses 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 defence 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

Defence: 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

Defence: 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.

 

The Day of the Hearing

Hearings can take place by phone, skype or in-person. In-person hearings are usually held in the Human Rights Commission Boardroom. We are located on the 5th Floor of the Natural Resources Building, 50 Elizabeth Avenue, St. John’s.

This is what our boardroom looks like. It has video/phone conferencing and a computer with internet access. The Natural Resources Building is fully accessible and there is public parking.

Plan to arrive early to get settled. You will need to bring ID to show security at the front floor.

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.

Important to Remember: A human rights hearing is informal and non-adversarial. The goal is to reduce harm, conflict and stress and if possible, repair the relationship between the parties.

An informal hearing is more like a conversation where the parties get to tell their side of the story. The Adjudicator takes an active role in leading the hearing, can ask questions of the parties and can ask to hear from and question witnesses, if necessary.

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 further.

You can bring 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
• Turn off your cellphone or other electronic devices

 

Hearing Procedure

The general procedure of a hearing is as follows:

1) The Adjudicator will call the hearing to order

2) The Adjudicator will go over some housekeeping items

• Introduce everyone at the hearing and confirm how they wish to be addressed
• Location of washrooms/emergency exits
• Confirm if the hearing is being recorded
• Ask if the parties understand what will happen at the hearing
• Ask what evidence is accepted and being relied upon by the parties
• Ask if there are any preliminary/procedural matters to be dealt with first

3) The Adjudicator asks the Complainant to briefly explain 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

Testimony is given “under oath”. You can swear to tell the truth on a religious book or item of your choice or by giving a solemn promise or affirmation.

4) The Adjudicator questions the Complainant and asks the Respondent if there are any comments/questions that need to be answered. The Adjudicator asks the Complainant to respond.

5) The Adjudicator asks the Respondent to explain, under oath, their side of the story, explain the information and/or documents (evidence) they have to support their position and what they are asking the Adjudicator to do and why.

6) The Adjudicator questions the Respondent and asks the Complainant if there are any comments/questions that need to be answered. The Adjudicator asks the Respondent to respond.

7) 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.

8) The Adjudicator asks questions of other witness(es), if they are present.

9) The Adjudicator asks the parties if there are any other questions the witness needs to answer.

10) The Complainant gives a brief summary of why they feel they were discriminated against and/or harassment and what they are asking the Adjudicator to do and why.

11) The Respondent gives a brief summary of why they did not discriminate or harass the Complainant and what they are asking the Adjudicator to do any why.

12) The Complainant can respond to any new issues raised by the Respondent in their summary.

13) The Adjudicator asks the parties if there is anything else they want to say.

14) The Adjudicator tells the parties what happens next and ends the hearing.

 

Rules of Evidence and Witnesses

The normal rules of evidence do not apply at a hearing. For example, hearsay evidence is allowed.

Any questions related to the subject matter of the complaint can be asked of the parties and/or the witnesses.

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.

There is no cross examination of opposing parties or witnesses and no formal objections, as the goal is to be less adversarial. However, if you disagree with something one of the witnesses says, tell the Adjudicator when asked.

Witnesses are usually not allowed in the hearing until they are called to testify.

 

Formal Hearings

In rare cases, traditional formal hearings are needed. These hearings are more complicated and can take longer. A formal hearing should only be used where:

• both parties are represented by lawyers
• both parties consent
• there are complicated legal or factual questions
• there are extensive and complex documents or records

The main differences between a formal hearing and other human rights hearings are:
• the role of the Adjudicator
• the parties are responsible for presenting their own case by using evidence – either by consent or witness testimony
• documents entered as evidence by witnesses
• the use of direct, cross and re-direct examination
• the use of objections
• when the Commission’s lawyer asks questions, if in attendance. The Commission’s lawyer asks their own witnesses questions on direct examination but cross-examines the Complainant, Respondent and/or their witnesses.

 

After the Hearing

An Adjudicator 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.

 

Length of Hearing Estimated Timeline

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:

Written hearing 2-3 months
2 days or less 4-6 months
More than 2 days 6 months or longer