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Human Rights (Ontario) Law
(30 September 2009)

Chapter 16 - Hearings

  1. Overview
    (a) Background
    (b) Comment re Written and Telephone Hearings
  2. Procedures Common to all Forms of Hearing
    (a) Overview
    (b) The Tribunal
    (c) General Hearing Conduct
    (d) Scheduling
    (e) Recording of Proceedings
    (f) Language of Proceedings
    . Language of Proceedings
    . Language Interpretation
    (g) Public Access to Hearings
  3. Basic Oral Hearing Procedures
    (a) Overview
    (b) Location
  4. Written Hearings
    (a) Overview
    (b) Has the Jurisdiction been Triggered?
    (c) If the Jurisdiction to Conduct Written Hearings has been Triggered, What Rules Govern It?
  5. Electronic (Telephone) Hearings
    (a) Overview
    (b) Has the Jurisdiction been Triggered?
    (c) If the Jurisdiction to Conduct Telephone (Electronic) Hearings has been Triggered, What Rules Govern It?
  6. Non-traditional Procedures

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


1. Overview

(a) Background

The traditional model for legal hearings in Ontario is the sit-down oral hearing [while its called 'oral' it really means 'in-person', as telephone hearings can be described as oral too]. Oral hearing procedures before administrative tribunals such as the Tribunal are very similar to civil court hearing procedures, though usually with much-relaxed procedures and evidence rules [see Administrative Law (Ontario)(SPPA): Ch.6: Evidence]. Their procedures also tend to be quite similar and generic across tribunals, and as I have considered them in other Isthatlegal.ca Legal Guides, I will link to those discussions when appropriate.

That said, serious attempts are underway in a broad range of Ontario's administrative tribunals to replace oral hearings with written and electronic ('telephone') hearings, on the theory that they are cheaper and more efficient. I discuss these more in (b), below.

In the result, this chapter focusses on procedures and rules that are unique to the Ontario Human Rights Code and its Rules, and which may be considered variations from the traditional model. Therefore, unless the reader is already familiar with this traditional model, before reviewing these Code-specific rules they should familiarize themselves with that basic model, linked here:

Administrative Law (Ontario)(SPPA): Ch.4: Hearings

(b) Comment re Written and Telephone Hearings

Legal authority for an Ontario administrative tribunal to adopt written and telephone (electronic) hearing options is set out in the Statutory Powers Procedures Act (SPPA). Tribunals such as the Ontario Human Rights Tribunal can voluntarily adopt jurisdiction to use these alternative hearing forms simply by formulating their own rules for those purposes. The Ontario Human Rights Tribunal has done this, with one stipulation regarding 'oral submissions':
Code s.43(3)(a)
Without limiting the generality of subsection (1), the Tribunal
rules may,

(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;

- and -

Rule 3.5
The Tribunal may conduct hearings in person, in writing, by
telephone, or by other electronic means, as it considers
appropriate. However, no Application that is within the
jurisdiction of the Tribunal will be finally disposed of without
affording the parties an opportunity to make oral submissions in
accordance with these Rules.
While it is still open under Rule 3.5 to have a full oral hearing [ie. oral opening, oral direct evidence, oral cross-examination and oral (closing) submissions], it is plain that "oral submissions" alone do not an oral hearing make. 'Submissions' refers to the final legal summation stage of a hearing that follows the primary evidence stage, and is often called the 'closing'. So under Rule 3.5 it would be quite acceptable to require all testimonial evidence to be 'put in' (and cross-examination conducted) in written or telephone media (all documentary evidence goes in under the written disclosure rules, regardless of type of hearing), with a later sit-down attendence at which the parties could argue the synthesis of the evidence and law orally - in other words, present their closing arguments - only - in person.

In short, legal submissions are the 'tail' of the hearing 'dog'; necessary to have a happy and complete dog, but by no means the body of the beast.

While I concede some role for written hearings when there are no serious factual disputes (akin to civil court applications), I have in past discussed the SPPA provisions for both written and electronic hearings and have been highly critical of them in my Administrative Law (Ontario) Legal Guide, at this link:

Administrative Law (Ontario)(SPPA): Ch.11: Written and Electronic Hearings


2. Procedures Common to all Forms of Hearing

(a) Overview

This section discusses Code-specific hearing rules that are shared across the three hearing types: oral, written and electronic (telephone).

The Tribunal has issued a general Information Bulletin on hearings, which I link here:

Information Bulletin: Hearings

(b) The Tribunal

Hearings are generally presided over by an odd number of members of the Human rights Tribunal (ie. 1,3,5) [Code s.33(2)]. It can be otherwise but odd numbers are required to break ties. Where more than one member is sitting, one them will be designated the 'president' and will lead the proceedings, though their decision carries no greater weight than that of any other member.

A more detailed discussion of the general Statutory Powers Procedures Act (SPPA) law governing Ontario's administrative tribunals is located at the below link, although note that Code s.42(1) provides that in the event of conflict Code and Tribunal Rules trump the SPPA [also on the subject of legal paramountcy see Ch.7, s.5: "The Tribunal and its Powers: Conflict Between Procedural Provisions"]:

Adminstrative Law (Ontario)(SPPA): Ch.3: Tribunals

The Tribunal has 'plenary' (full) legal jurisdiction (though NOT plenary remedial jurisdiction), which means that no Canadian law is beyond its consideration [Code s.39]. This seemingly obvious provision is the result of the 2006 Supreme Court of Canada Tranchemontagne case [discussed further in Ch.17: "Remedies and Offences"], and it dispels doubts existing before that case that some tribunals were limited to consideration only of law contained in their parent statutes. It also supports to conclusion (adopted by the Tribunal by virtue of Rule 4) that the Human Rights Tribunal has jurisdiction to consider federal constitutional law [see Ch.13, s.2: "Pre-Hearing Procedures: Notice of Constitutional Question"].

A much more detailed discussion of the Tribunal and its powers is located in Ch.7: "The Tribunal and its Powers".

(c) General Hearing Conduct

The Code (and the Rules) provide the Tribunal with the following general hearing conduct authorities, none of which are particularly exceptional in terms of typical administrative hearing process [Code s.43(3); Rule 1.7]:
  • to define or narrow the issues required to dispose of an
    application and limit the evidence and submissions of the parties
    on such issues [Rule 1.7(h,n)], and

  • to determine the order in which the issues and evidence in a
    proceeding will be presented [Rule 1.7(g,j)];

  • to conduct examinations in chief or cross-examinations of a
    witness [Rule 1.7(m)];

  • to prescribe the stages of its processes at which preliminary,
    procedural or interlocutory matters will be determined.
(d) Scheduling

The Tribunal has given itself authority to unilaterally estabish hearing (and other) dates (ie. without consulting the parties) [Rule 3.4]. This is not a remarkable rule as most administrative tribunals do this as a matter of course, subject to a reasonable approach to adjournment or re-scheduling requests.

Note however that written hearing notices are in reality a schedule for the exchange of written pleadings and documentation, typically with a specified decision date. 'Adjournment' of such a schedule would be unusual.

A hearing notice is formally termed a "Confirmation of Hearing" notice by the Tribunal Rules [Rule 1.4].

The Tribunal has issued an Interpretation Bulletin on scheduling and adjournments, and it is linked here:

Interpretation Bulletin: Scheduling

(e) Recording of Proceedings

The Tribunal [Rule 3.7] has stated, apparently as a policy, that it "does not normally record or transcribe its proceedings", which is quite unobjectionable and normal for administrative tribunals where written note-taking is the rule.

However it goes on to say that "(w)here a hearing is recorded the recording does not form part of the Tribunal's record of proceedings including any record filed in respect of an application made under the Judicial Review Procedures Act".

This aspect of Rule 3.7 is a bald attempt by the Tribunal to exempt itself from provisions of the Judicial Review Procedures Act (JRPA) which read as follows:
JRPA s.10
When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.
On this aspect of the Rule the Tribunal has unfortunately allowed its Rule-making authority to go to its head. This is an issue of legal 'paramountcy', and it seems plain that - absent legislative exception - these 'Rules', being an inferior form of delegated legislation, cannot trump the JRPA. While the Code does provide for HRC Tribunal-made Rules trumping the SPPA [Code s.42(1)], there is no general paramountcy provision that would supercede other statutes such as the JRPA.

In my opinion this 'privative' aspect of Rule 3.7 is unlikely to be respected as valid by any reviewing court, and is a shallow attempt by the Tribunal to avoid having its own processes scrutinized by a reviewing court.

The Tribunal has issued a Practice Direction on this issue, and I link it here:

Practice Direction: Recorded Hearings

(f) Language of Proceedings

. Language of Proceedings

Parties may require proceedings to be conducted in any of the following languages [Rule 3.8]:
  • English
  • French
  • both English and French
This language entitlement extends to all Tribunal processes, including pleadings and hearings, regardless of whether conducted orally, in writing or electronically.

. Language Interpretation

Further, interpretation in American Sign Language (ASL) or Quebec Sign Language (QSL) may be required as a right (though note that the main language of the proceeding is still limited as above).

In any case where French or Sign Language interpretation is required, the parties requiring it should notify the Registrar as soon as possible [see Ch.14, s.3(d): "Service: Filing and Other Communications with the Tribunal: Other Written Communications with the Tribunal"].

For hearings and mediation ONLY (not pleadings or other aspects of Tribunal procedure), interpretation in other languages may (ie. might) be provided by the Tribunal, but in any event should be requested as soon as its need is know [Rule 3.9]. Practice from other Tribunals and courts is to provide such interpretation free of charge to parties, subject to availability.

The Tribunal has issued a Practice Direction on this issue, and I link it here:

Practice Direction: Language Interpretation

(g) Public Access to Hearings

The Rules provide that:
Rule 3.10
The Tribunal's hearings are open to the public, except when the
Tribunal determines otherwise.
How this can be achieved with written and telephone hearings is not further articulated in the Rules, but then - as is noted in ss.4 and 5 below, neither are any procedures for such hearings.


3. Basic Oral Hearing Procedures

(a) Overview

Basic oral hearing procedure is explained in my Isthtlegal.ca Administrative Law (Ontario) Legal Guide:

Administrative Law (Ontario)(SPPA): Ch.4: Hearings

Interested readers should be sure to review this thoroughly, as only variations from that basic model are discussed in this chapter.

(b) Location

The Tribunal has reserved the right to locate its oral hearings as it sees fit [Rule 3.6]. This is nothing particularly at variance from normal administrative law practice, though normally other tribunals are amenable to venue changes on consent of the parties or in other pressing circumstances (eg. hospitalization).

The Tribunal has issued a Practice Direction on this subject and I link it here:

Practice Direction: Regional Hearing Centres


4. Written Hearings

(a) Overview

Other than adopting the bald jurisdiction to conduct written hearings [Rule 3.5], the Tribunal Rules are otherwise silent as to how they should be conducted. This gives rise to two concerns, considered in turn below.

(b) Has the Jurisdiction been Triggered?

The first is that the bare Rule 3.5 statement "(t)he Tribunal may conduct hearings ... in writing" is inadequate in law to trigger its SPPA entitlement to adopt written procedures, the relevant SPPA provisions reading:
s.5.1(1)
A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding.

- and -

s.25.1(1)
A tribunal may make rules governing the practice and procedure before it.

s.25.1(2)
The rules may be of general or particular application.
The argument here is that a simple adoption of the right to conduct written hearings, without an articulation of rules [ie. "deal with"] for their conduct, is inadequate to trigger s.5.1(1) of the SPPA.

That said, the s.25.1(2) provision that such rules may be "of general ... application" is support for the position that a simple adoption provision is adequate for this purpose, as is the following paramountcy provision in the Code:
Code s.42(2)
Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail over the provisions of that Act with which they conflict.
There are other arguments back and forth on this issue as well.

(c) If the Jurisdiction to Conduct Written Hearings has been Triggered, What Rules Govern It?

If we assume however that the (b) above issue is resolved in favour of written hearing jurisdiction, the lack of Tribunal Rules still leaves us in uncertainty as to how such hearings are to be conducted. In this situation the only recourse we have is to refer to the somewhat more-articulated provisions of the SPPA on the subject, which are discussed at this link:

Administrative Law (Ontario)(SPPA): Ch.11: Written and Electronic Hearings


5. Electronic (Telephone) Hearings
(a) Overview

Other than adopting unto itself the bald jurisdiction to conduct electronic (telephone) hearings [Rule 3.5], the Tribunal Rules are otherwise silent as to how they should be conducted. This gives rise to two concerns, considered in turn below.

(b) Has the Jurisdiction been Triggered?

The first is that the bare Rule 3.5 statement "(t)he Tribunal may conduct hearings... by telephone, or other electronic means" is inadequate in law to trigger its SPPA entitlement to adopt written procedures, the relevant SPPA provisions reading:
s.5.2(1)
A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding.

- and -

s.25.1(1)
A tribunal may make rules governing the practice and procedure before it.

s.25.1(2)
The rules may be of general or particular application.
The argument here is that a simple adoption of the right to conduct telephone (electronic) hearings, without an articulation of rules (ie. "deal with") for their conduct, is inadequate to trigger s.5.1(1) of the SPPA.

That said, the s.25.1(2) provision that such rules may be "of general ... application" is support for the position that a simple adoption provision is adequate for this purpose, as is the following paramountcy provision in the Code:
Code s.42(2)
Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail over the provisions of that Act with which they conflict.
There are other arguments back and forth on this issue as well.

(c) If the Jurisdiction to Conduct Telephone (Electronic) Hearings has been Triggered, What Rules Govern It?

If we assume however that the (b) above issue is resolved in favour of written hearing jurisdiction, the lack of Tribunal Rules still leaves us in uncertainty as to how such hearings are to be conducted. In this situation the only recourse we have is to refer to the somewhat more-articulated provisions of the SPPA on the subject, which are discussed at this link:

Administrative Law (Ontario)(SPPA): Ch.11: Written and Electronic Hearings


6. Non-traditional Procedures

The Rules also authorize the Tribunal to "use procedures other than traditional adjudicative or adversarial procedures" [Rule 1.6]. While these certainly include what are known as "alternative dispute resolution" (ADR) procedures, the Rule is broad enough to extend beyond that.

Some ADR measures are already elaborated in Ch.13: "Pre-Hearing Procedures" (ie. mediation, case assessment), and others are anticipated in the SPPA - IF Rules governing them are made by the Tribunal. Beyond those uses however, this quite vague rule may not find itself having much use except as a nod to liberal values of cultural openness.

If taken seriously, Rule 1.6 does have a potential for interesting experimentation with non-English forms of dispute resolution, although past such attempts in Ontario have proven highly contentious (witness the unsuccessful attempts to develop sharia-based family law alternatives).
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