The Canadian Human Rights Tribunal is similar to a court but less formal. The tribunal only hears complaints about discrimination sent to them by the Canadian Human Rights Commission. Tribunal Members are legally trained, impartial decision makers with expertise in human rights.
One to three members are assigned to the case. A Registry Officer is also assigned to the case. This is the person you contact with any questions about the process.
The Canadian Human Rights Commission can choose to participate in a hearing.
Anything that was said during mediation is confidential. It cannot be used at the hearing, if there is one.
The parties can try mediation to settle the issue. They can do this before the Tribunal starts to hear the case or anytime during the case.
If the parties choose mediation, a Tribunal member is appointed to assist them. This will be a different member than the member or members who will hear the case, unless the parties agree to use the same member. The Tribunal member is there to help the parties reach an agreement. They cannot make any decisions about the case.
Before mediation starts each party must submit a mediation brief. Each party's brief outlines the facts as they see them. The party that made the complaint also includes information about what remedies they are asking for. The other party can then comment on these in their brief.
Generally, both parties and the mediator will meet together. Other individuals such as lawyers for the parties may attend as well. Sometimes the mediator will meet with parties separately in addition to having joint meetings. There may be several meetings to discuss possible solutions the parties can agree on. The mediator may give their opinion about the strengths and weaknesses of each party’s case.
If the parties come to an agreement it must be put in writing and signed by the parties or their lawyers. If a party does not have a lawyer they will have 7 days to think over the agreement or get legal advice on it. The Canadian Human Rights Commission must also approve the agreement.
If the parties do not come to an agreement the case will continue to a hearing. Even when the parties do not reach an agreement they can decide to agree on some facts or resolve some of their issues through mediation. This can simplify the hearing process.
The purpose of case management is to help the parties organize their evidence and to shorten the length of the hearing. Case management is done by conference call. The parties need to prepare for the call by completing certain documents, filing them with the Tribunal and serving them on the other party.
Both parties need to prepare a Statement of Particulars. The party that made the complaint outlines the facts that led to the complaint. They explain why the treatment was discrimination on a prohibited ground and how the treatment has affected them. This could include things like loss of dignity, emotional or physical issues and lost wages. The party also outlines what orders they think the Tribunal should make.
The other party’s Statement of Particulars outlines what facts, if any, set out by the other party they agree or disagree with and why. They can also include any additional relevant facts. They can make the case for why what they did was not discrimination on a prohibited ground. They can also suggest different remedies than those set out by the other party if the Tribunal does find that there was discrimination.
Both parties must also submit a list of any documents they will use to support their case. Both parties submit a list of any witnesses they plan on calling and include a summary of what the witness will testify about. Both lists and any documents listed need to be served on the other party.
Once the party making the complaint receives the other party’s Statement of Particulars, they can file and serve a Reply - but only if the other party raised issues or stated facts that they disagree with and had not addressed in their own Statement of Particulars.
At the hearing both parties have a chance to make their case. The parties present their evidence, witnesses and arguments. At the start of the case the Tribunal asks the parties to introduce themselves. After this the parties are given the opportunity to make opening statements. During the opening statements the parties summarize their case.
After this the parties present their case through calling witnesses and submitting documents. The person making the complaint goes first followed by the other party. The parties call witnesses to testify about what they saw or heard that will support their case. They can also call witnesses to introduce documents that they want the Tribunal to consider.
When all of the evidence has been presented, each party is given an opportunity to present a final argument. This is a chance for each party to explain what facts they believe have been proven by the evidence, and why. This is also a chance for each party to explain why the facts show that there was or was not discrimination within the meaning of the Canadian Human Rights Act. New evidence cannot be introduced during final arguments.
After the hearing the Tribunal will make a decision. The decision will explain why the Tribunal decided there had been or had not been discrimination. It will also include any remedies the Tribunal orders.
The Tribunal tries to release a decision within 4 months of the hearing. More complex cases may take longer.
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