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Human Rights (Ontario) Law
(30 September 2009)

Chapter 11 - Motions

  1. Overview
  2. Orders Available on Motions
    (a) Overview
    (b) Specific Orders Available
  3. Motion Procedures ('Requests for Order')
    (a) Overview
    (b) 'Informal' Motions
    (c) Formal Motions ("Requests for Orders")
    . Overview
    . Request for Order Contents
    . Response to Request for Order
    (d) Motions to Compel Cross-Examination on Non-Party Affidavits
    . Overview
    . Motion Required
    . Written 'Cross-Examination'
    . Service
  4. Evidence on Motions
  5. Type of Motion Procedure
  6. Excusing Procedural Non-Compliance

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


1. Overview

In any legal proceedings there can arise the need for (usually minor) procedural decisions and variations that cannot, in fairness to the other participants, be engaged in unilaterally by a participant. Such changes and orders necessitate at least a rudimentary form of what lawyers call 'natural justice' or 'fairness' - concepts which are quite ill-defined in law but which largely correspond to what most laypersons would consider to be minimum 'fairness' requirements, without which injustice could result. Primarily they require that the other parties have an oppourtunity to know of, and make submissions on, the procedural changes requested [a concept known in broader form as audi alteram partem).


2. Orders Available on Motions

(a) Overview

As has been noted in Ch.7: "The Tribunal and its Powers", the Tribunal has been given a very broad (I would say unusually broad) degree of discretion with respect to procedural rule-making and practices, all subjects which are the stuff of "natural justice" and "fairness".

The Code provides for this broad authority in several provisions, including the following:
s.39
The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it. 2006, c. 30, s. 5.

s.40
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

s.41
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
The Rules reinforce this broad authority:
1.6
The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.
(b) Specific Orders Available

Without limiting the generality of the provisions quoted in (a) above, the Rules further set out a specific list of traditional procedural changes that may be required in any proceeding [however note the practically unlimited range of (w)]:
Rule 1.7
In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(a) lengthen or shorten any time limit in these Rules;

(b) add or remove a party;

(c) allow any filing to be amended;

(d) consolidate or hear Applications together;

(e) direct that Applications be heard separately;

(f) direct that notice of a proceeding be given to any person or organization, including the Commission;

(g) determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined;

(h) define and narrow the issues in order to decide an Application;

(i) make or cause to be made an examination of records or other inquiries, as it considers necessary;

(j) determine and direct the order in which evidence will be presented;

(k) on the request of a party, direct another party to adduce evidence or produce a witness when that person is reasonably within that party's control;

(l) permit a party to give a narrative before questioning commences;

(m) question a witness;

(n) limit the evidence or submissions on any issue;

(o) advise when additional evidence or witnesses may assist the Tribunal;

(p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form;

(q) on the request of a party, require another party or other person to provide a report, statement, or oral or affidavit evidence;

(r) direct that the deponent of an affidavit be cross-examined before the Tribunal or an official examiner;

(s) make such further orders as are necessary to give effect to an order or direction under these Rules;

(t) attach terms or conditions to any order or direction;

(u) consider public interest remedies, at the request of a party or on its own initiative, after providing the parties an opportunity to make submissions;

(v) notify parties of policies approved by the Commission under section 30 of the Code, and receive submissions on the policies; and

(w) take any other action that the Tribunal determines is appropriate.
These specific authorities are discussed throughout this Isthatlegal.ca Human Rights Law (Ontario) Legal Guide as they relate to the various topics discussed, but the list deserves review here so that readers can appreciate the breadth and depth of their range.


3. Motion Procedures ('Requests for Order')

(a) Overview

The Code doesn't describe these small procedural changes and orders as being initiated by motions (they are called "Requests for Orders"), but that's just as good a term as any and it is the one normally used in legal proceedings.

(b) 'Informal' Motions

Even in the stricter civil court practice motions can be surprisingly informal in procedure, and this is the case with Code procedures as well:
Rule 19.1
A party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of the hearing or by written request.
That said, the accepted protocol (which should not be varied from without good reason) is that motions should be brought using the more formal method explained below whenever possible. Informal motions should only be used when their need comes as a surprise to the moving party, or where other time circumstances render the more formal procedure impractical. Further:
Rule 19.5
If the requesting party wants the Request for Order dealt with on an urgent basis, it must provide supporting reasons.
Even when legitimate circumstances necessitate the bringing of an informal motion the moving party should - if at all possible - at least send a letter to all other participants (and the Tribunal) advising of their intention to make the motion and the reasons for it (both with respect to the main motion and the urgency), as soon as the need for it is known. In normal civil and administrative law practice it is very common for responding parties to respond to a late-brought motion by requesting an adjournment to consider the new issues and perhaps to adduce evidence, and it is almost always the case that the Tribunal will grant it. In short, trying to use an informal motion to ambush the other side will not normally work, and will just result in further delay in the proceedings. Given the past record of the OHRC system of creating its own (sometimes absurd) delays, all participants are well-advised not to give the new Tribunal system any more excuses for delay than is absolutely necessary.

Finally, the 'golden rule' used to determine when an informal motion is properly brought (and can be heard at that time) is whether the issue at stake is one that the responding participants can fairly respond to 'on the spot' or whether 'fairness' requires them to have the oppourtunity to consider the issues, to present evidence against it, and to prepare legal submissions on it - in which case the motion will be denied or an adjournment granted.

(c) Formal Motions ('Requests for Orders')

. Overview

The form used for a formal motion ("Request for Order") is:

Form 10: Request for Order

Of course, the motion should be served on all participants in the case and then a copy filed with the Tribunal [see Ch.14: "Service"], although Rule 19.2 broadens the service rule to include "any person or organization who may have an interest in the request".

Barring unusual circumstances, service to persons or organizations beyond those presently-acknowledged as participants would only logically be called for where the order sought is to add them as a party or to require their evidence (in any event, the Tribunal has authority to send the documentation to any persons or organizations as it sees fit: [Rule 1.7(f)]).

. Request for Order Contents

Generally, the motion ("Request for Order") should (this will all be called for in the Form 10) [Code R19.4]:
  • describe the order requested;

  • contain reasons for the request, including any facts relied on and submissions in support of the request;

  • include the documents relied on in support of the request, if
    any;

  • indicate whether the consent of another party has been obtained
    as to any term of the order sought or as to the manner in which
    the request should be dealt with, and

  • indicate whether the requesting party wishes the Tribunal to deal
    with the matter in writing, in person, or electronically;

  • where the order requested is for production of a documents [see (d) below] a copy of the party's written request for the documents and the responding party's response, if any.
. Response to Request for Order

The form used to respond to a Request for Order is:

Form 11: Response to Request for Order

Unless the Tribunal orders otherwise, all parties should file a Response to Request for Order [Rule 19.6].

The Response should be served on all participants in the case and then a copy filed with the Tribunal [see Ch.14: "Service"], within 14 days after the Request for Order was served [Rule 19.6].

The Response must include (this will all be called for in the form) [Rule 19.6]:
  • identify which facts in the Request for Order are accepted and which are disputed;

  • reasons and any submissions in support of the responding party's
    position;

  • any additional facts relied on by the responding party;

  • include any documents not included in the Request for Order upon
    which the responding party intends to rely;

  • the responding party's position on the order(s) requested and the
    whether the Request for Order should be dealt with in writing, in
    person, or electronically; and

  • where the order requested is for production of documents [see (d) below] the responding party must attach the written response to the request, if any.
(d) Motions to Compel Cross-Examination on Non-Party Affidavits

. Overview

In administrative hearings (as well as sometimes in court) it is common to offer third party (ie. non-party) evidence - often expert or medical evidence - in affidavit (sworn statement) form. As noted above, this is also the form in which evidence on motions (in both courts and administrative tribunals) has been traditionally offered.

Where such affidavit evidence is sought to be challenged or elaborated on by other parties, the court practice is to 'cross-examine' the deponent (the one whose statement it is) in front of an official examiner (a quasi-court functionary) and to have a written transcript of the questions and answers prepared for use at the court [of course another option is for an opposing party to seek a summons to compel the depondent's attendence at hearing (the two are not mutually exclusive): see Ch.15,s.3: "Evidence: Summons")].

. Motion Required

In Code procedures, an order to cross-examine is first required, and must be obtained on motion [Rule 19.3]. Such an order, if granted, may require the cross-examination to be conducted in traditional style before an official examiner or a Tribunal functionary [Rules s.1.7(r)].

. Written 'Cross-Examination'

Additionally however, the Tribunal may also order the deponent to "provide a report, statement or oral or affidavit evidence" responsive to the issues. Essentially these 'non-traditional' options amount to an oppourtunity for the deponent to respond in writing to written questions or to prepare a written report on specific issues of interest to the Tribunal. Such procedures do not have a counterpart to normal court rules (though a "Request to Admit" under Ontario's "Rules of Civil Procedure" is similar), and logically require that some direction (or questions) be prepared and approved by the Tribunal.

Presumably to facilitate this [and in addition to the contents set out in (c) above], any motion ("Request for Order") for cross-examination to be conducted in such written form must also include "a copy of the party's written request for the document(s) and the responding party's response; if any" [Code R19.4, 19.6]. Presumably though for a third party to respond intelligently to such a request, the Tribunal's order must set out directions or questions for the deponent to follow.

The contrast between the traditional oral cross-examination procedure and the 'untraditional' written one is that the deponent in the first case does not get to see the questions in advance, but has them 'sprung' on them at the cross-examination attendence. For this reason, where a party knows or suspects that the deponent has a bias against them, the traditional cross-examination procedure may be preferable.

. Service

Obviously, such a motion should be served on the deponent as well as all other participants, and filed with the Tribunal [Rule 19.3].


4. Evidence on Motions

Traditionally, evidence on motions is given by way of affidavit (formal written statement sworn as true before a Commissioner of Affidavits). There is nothing legal to prevent a party from serving and filing affidavits if they wish, but the Code procedure calls for such evidence to be included within a particular form (Form 10), which requires a signed attestation as to completeness and accuracy at the end:

Form 10: Request for Order During Proceedings

The space provided in these forms is absurdly small (often one line), so parties will naturally have to refer to external attached documents (ie. put "see attached" in the space available, and attach a full version). Past Commission practice has often tried to limit complainant's applications to the space provided on the form only. While brevity and conciseness in pleadings is laudable, past Commission practice in this regard has been absurd, and I would like to hear from anyone being subject to similar in future.


5. Type of Motion Procedure

As is the case with hearings themselves (see Ch.16: "Hearings"), there is a strong effort underway in modern administrative law to dispense with traditional 'in-person' hearings in favour of written or electronic hearings. These are practices which I have written of critically in the Isthatlegal.ca Administrative Law (Ontario) (SPPA) Legal Guide, although in many 'motion' scenarios the chance of prejudice to a party is often low. The pros and cons of the various procedural options are discussed further at this link:

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

In any event, as is alluded to above regarding the content requirements of a Request for Order, the moving and responding parties are asked to express a preference as to the manner of hearing, although the Tribunal asserts that it is ultimately up to it as to how to proceed: ie. whether by way of oral, written or electronic hearing [Rule 19.7]. The jurisdiction-granting authority for written and electronic hearings (discussed in the Administrative Law Legal Guide link) is not quite for generous to the Tribu nal, and anyone objecting to the Tribunal's decision in this regard should review the discussion at that link carefully.


6. Excusing Procedural Non-Compliance

In addition to the ability to amend proceedings by way of motion (discussed above), the Tribunal has authority to relieve against technical non-compliance with the Rules, both on its own initiative and at the request of a party. In administrative practice such authority is common - though rarely used - and it may be distinguished from the more formal motion procedure discussed in s.2 below.

There is little to distinguish the exercise of this authority from that of an informal motion, though practically it is more likely to be exercised after-the-fact, to 'regularize' some overlooked flaw in procedure.

These non-compliance provisions read [Rule 5]:
Rule 5.1
A technical defect or irregularity is not a breach of these Rules. Where a party or other person fails to comply with these Rules, the Tribunal may relieve against the failure to comply, with or without terms, as the Tribunal considers appropriate in accordance with Rule 1.1.

Rule 5.2
The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.
Rule 1.1 reads:
Rule 1.1
These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

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