Hearing Preparation: Rules of Procedure

1 – Purpose of Rules

The purpose of these Rules is to explain what happens during a human rights hearing.

The goal of a human rights hearing is to resolve disputes between parties in a way that:

is accessible, timely, inexpensive, informal and flexible
is procedurally fair
applies human rights law and principles
is proportional to the circumstances of each complaint
is supportive of the parties involved in the hearing process, and
realizes that there are other ways to resolve disputes

This approach should guide the actions and decisions of all people involved in a human rights hearing.

2 – Definition of Parties

The parties involved in a human rights hearing are the:

Complainant – the person making the complaint
Respondent – the person or company responding to the complaint
Commission – represents the public interest and has carriage of the complaint
Additional parties – if added by the Adjudicator

3 – Parties’ Responsibilities

All parties must:

fully participate in the human rights hearing
ensure a fair and efficient hearing process
keep in contact with the Human Rights Commission
avoid unnecessary interventions by the Adjudicator by resolving as many issues as possible between the parties
follow the Adjudicator’s directions/filing deadlines
request extensions of time/postponements in a timely manner, and
behave, communicate and co-operate with all parties in a respectful manner

4 – Requesting Accommodations

A party must request an accommodation or support. Notify the Commission’s lawyer of your needs as soon as practicable. The Commission will make every attempt to provide reasonable accommodation and/or support up to the point of undue hardship.

Examples of accommodations can include:

disability-related or other protected characteristic-related accommodations
alternate formats for documents
phone or video meetings or hearings
family, friends or other support people can attend with you

5 – Privacy/Confidentiality

The human rights hearing process is confidential. The only exception is the Adjudicator’s written decision, which is made public on the Human Rights Commission’s website and other legal sites to meet the Commission’s public education mandate.

Other non-identifying information about complaints may also be made public in the Human Rights Commission’s annual report or elsewhere.

A party may request that any communication or written decision (or part thereof) about the complaint be anonymized. This means using initials instead of names to protect a person’s privacy in the written decision.

A party must make a request for anonymization to the Adjudicator as soon as practicable.

An Adjudicator can grant this request to protect the interests of children or in certain circumstances (personal or sensitive information or a threat to personal safety).

When making this decision, the Adjudicator will balance the public interest in freedom of expression and the principle of an open justice system with the negative consequences of disclosing personal information.

6 – Requesting an Extension of Time or Postponement

A party can request an extension of time or postponement at any stage in the hearing process.

The request should be made to the Commission’s lawyer who will send it to the Adjudicator. The request should provide a good reason for re-scheduling.

The parties are notified about the Adjudicator’s decision.

7 – Non-compliance

If a party fails to follow directions, orders, or filing deadlines or fails to attend a pre-hearing conference or hearing, the complaint may go ahead without their participation.

8 – Withdrawal of Complaint

A Complainant may withdraw part or all of their complaint at any time before the actual hearing starts.

A notice of withdrawal can be done in different ways:

by signing the Commission’s Notice of Withdrawal Form
in writing (email or letter)
verbally to Commission staff, or
by failing to participate in the complaints process

Failing to participate tells the Commission that the Complainant no longer wants to continue with the hearing. The Commission makes reasonable attempts to contact the Complainant before it considers the complaint to be withdrawn. Once withdrawn, the complaint is closed, absent any extraordinary circumstances. Extraordinary circumstances may include:

a Complainant’s reasonable explanation
the length of time it took the Complainant to contact the Commission after the notice of withdrawl was sent
the prejudice suffered by the Respondent, or
other relevant factors

Pre-Hearing Process

9 – Adjudicator Assigned

A copy of the Complaint Form is sent to the Chief Adjudicator of the Human Rights Commission Panel of Adjudicators.

The Chief Adjudicator shall hear the matter or refer the complaint to another Adjudicator.

A referral must happen within 30 days of the Commission sending the Complaint Form to the Chief Adjudicator.

10 – Pre-Hearing Readiness Form

The Human Rights Commission sends a Pre-Hearing Readiness Form to the Complainant.

The Form helps the parties focus the pre-hearing conference meeting. The Form will ask the parties about:

preliminary/procedural matters
what you need to prove
Commission Record
additional document disclosure
witness names
proposed remedies
accommodation/support and/or privacy concerns, and
involvement of lawyers

The Pre-Hearing Readiness Form shall be returned to the Commission by a specified date.

The Pre-Hearing Readiness Form shall be sent to the opposing party and the Adjudicator at least one week before the Pre-Hearing Conference meeting.

11 – Pre-Hearing Disclosure of Evidence

Section 9 of the Public Inquiries Act requires the parties to disclose any documents or records in their custody or control that may relate in any way to the subject of the inquiry.

Documents or records are “related in any way” if production may “throw any light on the case”. This means that the documents or records contain information which may either directly or indirectly enable the party receiving or seeking the information to advance his or her own case or to damage the case of his or her adversary [or] which may fairly lead him or her to a train of inquiry which may do so. [See: Carter v. Municipal Construction Ltd., 2001 NFCA 58.

Disclosure is a continuing obligation of the parties.

Section 9 of the Public Inquiries Act also says that an Adjudicator can order the production of documents or records or the attendance of a witness at a hearing.

If a party fails to produce documents or records in their custody or control they shall not be allowed to rely on them at the hearing.

12 – Commission Record

The Human Rights Commission prepares the Commission Record.

The Commission Record CAN include:

the Complaint Form
the Reply Form
the Rebuttal Form
any other submissions/documents already provided by the parties during the complaint process
any submissions made in the consideration of a section 31 deferral or section 32 dismissal
any other information related to the complaint obtained during the investigation

The Commission Record WILL NOT include:

any information about mediation or settlement discussions
any documents, records, communications or other information that is not related to the complaint

The Commission Record is sent to the Parties and the Adjudicator at least one week before the pre-hearing conference meeting.

13 – Scheduling a Pre-Hearing Conference Meeting

A pre-hearing conference is a meeting of all the parties (usually by telephone). It takes place a few months before the actual hearing. The goal of the pre-hearing conference is to make a plan for the hearing. Pre-hearing conference meetings usually take one hour or less.

The Adjudicator gives the parties a range of acceptable dates for the pre-hearing conference meeting.

Reasonable attempts will be made to schedule a mutually convenient date.

The Adjudicator may set a date for the pre-hearing conference meeting, if a party fails to respond or cannot commit to attend in a timely basis.

The Commission lets the parties know when the pre-hearing conference meeting will take place.

14 – Pre-Hearing Conference Meeting

The Adjudicator, the Complainant, the Respondent and the Commission take part in the pre-hearing conference meeting.

The parties can have a lawyer represent them at the pre-hearing conference if they wish, but it is not necessary.

The Adjudicator leads the discussion at the meeting.

There can be more than one pre-hearing conference. The Adjudicator will decide if more than one pre-hearing conference meetings is necessary and what will be discussed at each meeting.

Be prepared to discuss the following:

the contents of the Pre-Hearing Readiness Form
the Commission’s role at a hearing
the hearing format
document disclosure
witness names
how will the witnesses testify? (in-person, phone, video, written statement)
is there a need to question witnesses?
is there a need to order a witness to attend the hearing?
what are the deadlines for filing documents/submissions?
is there a need to have another pre-hearing conference meeting?
the date and location of the hearing, and
the length of the hearing

15 – The Commission’s Role at a Hearing

The Commission is an independent party, it does not represent the Complainant or the Respondent at the hearing.

The Commission’s job is to have carriage of the complaint and represent the public interest in preventing discrimination or harassment.

Having carriage of the complaint does not mean that the Commission will appear and present evidence at every hearing. The Commission, like any other party to the hearing, can choose its level of participation at the hearing.

Regardless of the level of its participation, the Commission will support the parties at a hearing by:

providing scheduling and administrative support
ensuring the process runs smoothly and is timely
preparing the Commission Record
facilitating pre-hearing document disclosure and issue identification
attending the pre-hearing conference meeting(s)
helping parties understand how to format a witness statement
helping parties get a summons for a witness to attend the hearing
filing a legal brief and/or case law
following up with the Adjudicator on the status of the written decision
giving general legal information, but not legal advice
paying the costs of a hearing (except for the costs of transcription, a party’s own lawyer or an expert witness, if they choose to get one).

The Commission considers the following factors when deciding its level of participation:

are the parties represented by lawyers?
is the complaint simple or uncomplicated?
are the facts generally not in dispute?
are there few to no witnesses where credibility is an issue?
is all relevant evidence before the Adjudicator?
does the complaint raise broad-based policy or systemic issues?
does the complaint address a pressing public policy concern as identified by the Commission?
does the complaint raise a new point of law, settle one that remains in doubt or change legislation, policies or programs?
does the complaint significantly advance the purposes of the Human Rights Act?
was a reasonable settlement offer made and is that settlement in the public interest?
are there important systemic remedies that need to be requested?
would either of the parties be prejudiced by the Commission’s decision to not participate at the hearing?

The parties are told of the Commission’s level of participation at the pre-hearing conference meeting. The Adjudicator, the Complainant and/or the Respondent’s position on the Commission’s level of participation may be considered in the Commission’s decision to appear and present evidence.

16 – Hearing Format

A human rights hearing is informal and non-adversarial. The goal is to reduce harm, conflict and stress for the parties. The Commission encourages a creative, flexible approach to hearings. Different approaches can be used at different times, depending on the circumstances.

A hearing can be in writing or done in person (phone, video or face-to-face).

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

Hearings done in person are 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.

In some cases, the Adjudicator may take less of an active role in the hearing. The parties may prefer to lead their own evidence and/or question some witnesses. This approach should be done rarely as it does not align with the underlying purpose of these Rules. More traditional aspects of hearings can 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, or
the hearing will be lengthy

Regardless of the Adjudicator’s role, the tone and format of the hearing should always align with the underlying purpose of these Rules. Parties are encouraged to use different ways to get the evidence on the record. For example, using written witness statements or written “Q & A” questions instead of calling witnesses to testify in person. Parties may also choose to question only one witness at the hearing, if they feel credibility is at issue, but let the Adjudicator question other witnesses.

17 – Preliminary Directions or Decisions

The Adjudicator can give directions on a preliminary matter.

Directions should be done informally and given immediately at the pre-hearing conference meeting and/or by email after its conclusion.

The Adjudicator can ask for written or in-person legal submissions/arguments on a preliminary or procedural matter. Preliminary decisions shall be done in writing.

18 – After the Pre-Hearing Conference Meeting

The Commission confirms the following:

any directions made
the Commission’s role at the hearing
the hearing format
any filing deadlines for documents, witnesses statements and briefs/submissions
the need for another pre-hearing conference meeting
hearing date/location
any other important matters

The parties are free to negotiate a settlement of the complaint up until the start of the hearing.

19 – Legal Briefs/Submissions

Any legal briefs/submissions shall be filed by a date specified by the Adjudicator.

Generally, the Commission will file a legal brief first. The main goal of the Commission’s legal brief is to review the relevant human rights issues. The Commission’s legal brief will include:

a summary of the relevant legal issues
a review of the legal tests the Complainant needs to meet to prove discrimination and/or harassment
a review of the legal tests the Respondent needs to meet to defend against the allegations of discrimination and/or harassment
a review of the specific legal issues identified at the pre-hearing conference meeting
relevant human rights cases
a review of possible remedies
a review of any systemic or public interest human rights issues, where necessary

The Complainant and then the Respondent may file a written brief/submission or say they have nothing more to add. The parties’ brief can include:

a brief summary of their side of the story
a review of the relevant evidence (facts or documents)
an answer to any specific legal questions identified at the pre-hearing conference meeting
the remedy, decision or outcome they are seeking

The Adjudicator will review the legal briefs/submissions and can ask for more information or ask for a witness to attend the hearing in-person.

Human Rights Hearing Process

20 – Sound Recordings

Hearings may be recorded by the Adjudicator for their own information and/or where necessary to accommodate the needs of one of the parties.

The sound recording does not form part of the official record of the proceedings.

If a hearing is recorded, a party can request a copy of the sound recordings. Any transcription will be at the party’s own cost.

The Commission does not transcribe (or print) any of the sound recordings.

The sound recording shall not be publicized or used for any purpose other than in the complaint proceeding.

21 – Rules of Evidence

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.

22 – Preparing for the Hearing

The next step is to prepare for the hearing. The Commission’s Lawyer can help navigate the parties through the hearing process, but cannot give legal advice, regardless of the format of the hearing or our level of participation. Learn more about how to prepare for a hearing here.

23 – 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.

24 – 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

25 – 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.

26 – 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.