Simon's Megalomaniacal Legal Resources

1. Overview
   
2. Application, Response and Reply Procedures
   (a) Overview
   (b) Joinder of Applications
   (c) The Application
   (d) Responses
   (e) Replies
   (f) Case Conference
   
3. Deferring Applications
   (a) Overview
   (b) Recommencement of Deferred Application
   
4. Withdrawal of an Application

------------------------------

1. Overview

In addition to the 'private' s.34 applications discussed in Ch.8, the Code also provides a procedure [under Code s.35] for the Human Rights Commission to commence an application if it (the Commission) is of the opinion that:

• it is in the public interest to make an application;
  
  and
  
  
• an injunction-type order (under s.45.3), either prohibiting or compelling behaviour, could provide an appropriate remedy.

This 'injunction' remedy is distinct from the normal s.34 'private application' remedial range [under s.45.2] which, while also offering injunctions, offers them to achieve 'Code compliance'. The s.35 injunction however is focussed beyond the interests of the immediate applicant and onto the "public interest". As such it will necessarily be more preventative in nature, rather than just compensatory.

This is a natural distinction given the (now since 2008) primary policy-orientation of the Commission.


2. Application, Response and Reply Procedures

(a) Overview

'Commission-initiated' applications are comparable to the 'proxy' applications available under the s.34 private application procedures - [see Ch.8, s.2: "Private Applications: Commencing Applications"], although they are 'writ large' in the sense that having the Commission on side by running your case for you (at least the case in which you have an interest).

That said, the application and related procedures for Commission-initiated applications are simpler than for the private s.34 applications. For example, the Rule 6 provisions respecting 'incomplete' applications apply only to the s.34 private application procedures [see Ch.8, s.2(g)], and not to these s.35 Commission applications, responses or replies.

Similarly, the disclosure requirements on collateral court proceedings discussed in Ch.8, s.3(e) do not apply to s.35 Commission applications, nor do the Ch.12, s.2(b) "Summary and Related Proceedings: Where Related Proceedings or Settlement" provisions (ie. where a prior settlement is alleged).

On the other hand, contrary to s.34 private applications, there is no apparent limitation period on the time required to bring a Commission application.

(b) Joinder of Applications

While the commencement of a Commission application respecting the same fact situation does not preclude a person or organization from commencing their own (s.34) private application [Code s.35(3)], the Tribunal will normally combine them [Code s.35(4)].

Note that the Tribunal, either on its own motion or the motion of a party, has discretion to either "consolidate or hear Applications together" or "direct that Applications be heard separately" [Rule 1.7(4,5)]. Normally applications should only be joined if they shared significant common factual and legal elements.

(c) The Application

The form used for Commission applications is [Code s.35(2); Rules 12.1]:

Form 7: Application by Commission
The Commission will deliver it to all respondents and affected persons set out in the application, and file it with the Tribunal.

The application must [Rules 12.2]:

• contain a statement why, in the opinion of the Commission, the Application is in the public interest;
  
  
• set out the issues the Commission wants to address;
  
  
• set out all the material facts upon which the Commission intends to rely; and
  
  
• set out the remedies the Commission is seeking.

Note that under Rule 1.7(3) the Tribunal may, on motion by a party or on its own motion, "allow any filing to be amended".

(d) Responses

Completed responses must be served on the Commission and all those named in the application, and then filed with the Tribunal, all within 60 days after delivery of the Application by Commission [Rules 12.3]. The form for this is:

Form 8: Response to Commission Application
The response must [Rules 12.4]:

• include a statement setting out the position of the Respondent or affected person in respect of each of the issues and material facts set out in the Commission Application;
  
  
• set out all of the material facts upon which the Respondent or affected person intends to rely, and
  
  
• include a response to the remedies requested by the Commission.

Note again that the Rule 8 provisions respecting 'incomplete' responses apply only to the s.34 private application procedures, and not apparently to these s.35 Commission applications.

Note as well that under Rule 1.7(3) the Tribunal may, on motion by a party or on its own motion, "allow any filing to be amended".

(e) Replies

A 'reply', traditionally, is the applicant's (here the Commission's) oppourtunity to respond to new issues raised in the Response/s, particularly defences. This restriction applies to Commission proceedings as well [Rule 9.2] (ie. they are not an oppourtunity to embellish initial, or advance new, application issues).

The form for a Reply is [Rule 9.1]:

Form 3: Reply
Replies must be served on "the other parties and any trade union or occupational or professional organization and other person or organization identified as an affected person in the Application or Response" and then filed with the Tribunal within 21 days after the Response "was sent" (this should be read as the mailing date, not the receiving date) [Rule 9.3].

Note that under Rule 1.7(3) the Tribunal may, on motion by a party or on its own motion, "allow any filing to be amended".

(f) Case Conference

The remaining procedures for the processing and conduct of a Commissioner application will be the subject of a conference call between all parties and affected persons, to be held within 45 days after the filing of the Responses [Rules 12.5]. Case conferences can be conducted either by telephone or other electronic medium [Rules 1.4].


3. Deferring Applications

(a) Overview

Any party may request - and the Tribunal itself on its own motion may order - that consideration of the application be deferred [Code s.45; Rule 14.1].

The granting of a deferral (initiated either by a party request, or by the Tribunal itself), is still at the discretion of the Tribunal, and it will not be granted without first giving "the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral of the Application and an opportunity to make submissions" [Rule 14.2].

(b) Recommencement of Deferred Application

Regardless of the procedure used to obtain a deferral of consideration of an application, recommencement at the request of a party is done by way of motion under Rule 19 [Rules 7.5 and 14.3] (see Ch.11: "Motions").

Where the original deferral was deferred pending the outcome of another legal proceeding, a motion to recommence must be made within 60 days after completion of the other proceeding [Rules 7.5] and must "set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any" [Rules 14.4].

Of course, the Tribunal may require a deferred application to recommence at any time, on its own motion [Rule 14.5].


4. Withdrawal of an Application

Except in the case of a settlement [Rule 10.1] or where no Response to the Application has yet been filed [Rule 10.5], there is no unilateral right to withdraw an application once it is filed and the applicant must make a formal request for permission to withdraw. Such permission may be granted "upon such terms as the Tribunal may determine".

The form used is:

Form 9: Request to Withdraw
A completed Form 9 must be served on all parties, affected persons and any others named in the initial application, and then filed with the Tribunal. If it was a proxy application, the written consent to withdraw of the principal is also required [Rules 10.2].

If the person or organization receiving the Request to Withdraw desires to file a "Response to Request to Withdraw", they must first serve it on the same persons and organizations served with the Request to Withdraw - and then file it with the Tribunal - all within 2 days after delivery of the Request to Withdraw [Rules 10.3-10.4]:

Form 11: Response to Request for an Order