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Human Rights (Ontario) Law
(30 September 2009)

Chapter 10 - Parties, Representation and Related Issues


  1. Overview
  2. 'Persons'
    (a) "Persons" in Ontario Law
    (b) "Persons" under the Code
    (c) "Organizations" under the Part IV Rules
    (d) Vicarious Liability
    (e) Joinder
  3. Parties
  4. Notice and 'Affected Persons'
  5. Intervention
    (a) Overview
    (b) Private Intervention
    . Overview
    . Private Intervenor Application
    . Response to Private Intervenor Application
    (c) Commissioner Intervention
    . Overview
    . Without Applicant Consent
    . With Applicant Consent
  6. Legal Representation, Proxy Applications and Legal Incompetents
    (a) Overview
    (b) Legal Representatives
    (c) Proxy Applications
    . Overview
    . Proxy Applications
    (d) Legal Incompetency
  7. Special Needs
  8. Language of Proceedings and Interpreters
  9. Human Rights Legal Support Centre
    (a) Overview
    (b) Human Rights Legal Support Centre
    (c) Services
------------------------------

1. Overview

This chapter considers the issues of parties, legal representation, intervention and related topics. While these issues might seem fairly straightforward they often are not, and this chapter should be reviewed to get a basic understanding of these important details.


2. 'Persons'

(a) "Persons" in Ontario Law

This section focusses on the legal status of various interest-holders and their roles within the formal Code system. In order to appreciate their interaction fully, it is best to understand from the outset how the law generally, and Code law in particular, treats the subject of "persons" and the terminology that it uses.

The most obvious form of a legal "person" is the natural one, and the law sometimes refers to "natural persons" to make clear that it is speaking about real, flesh and blood human beings, and not including within the term such things as corporations. In fact, without such clarification, the legal term "person" in Ontario law would normally include corporations (by virtue of s.87 of the Legislation Act, an Ontario statute that sets out basic definitions and rules that apply to the interpretation and application of other Ontario statutes).

(b) "Persons" under the Code

The Code, which generally refers to "persons", then expands that basic Legislation Act definition (ie. 'natural persons' and corporations) as follows:
s.46 In this Act, "person" in addition to the extended meaning given it by Part VI (Interpretation) of the Legislation Act, 2006, includes
  • an employment agency,

  • an employers' organization,

  • an unincorporated association,

  • a trade or occupational association,

  • a trade union,

  • a partnership,

  • a municipality,

  • a board of police commissioners established under the Police Act,
    being chapter 381 of the Revised Statutes of Ontario, 1980, and

  • a police services board established under the Police Services Act.
This expanded definition captures a broad range of legal entities both incorporated and unincorporated, and as well some unique trade, employment and statutory entities. Perhaps the most novel of these, which is particularly relevant for purpose of intervention status (see s.5, below) is that of "unincorporated associations", which can be quite ill-defined (and even spontaneous) in nature.

As well, of course, although this list does not include "governments", it is implicit in the Code that municipalities (which technically are corporations) and the provincial government (and all its agencies) can be respondents to Code proceedings [Code s.47(1)].

The Tribunal has issued an Interpretation Bulletion on the issue of naming parties, and I link it here for reference:

Naming Respondents

(c) "Organizations" under the Part IV Rules

It should also be noted that the key Part IV rules refer sometimes to "organizations", though without defining them more specifically. That said, it seems implicit from its usage in the Rules that the term "organization" means to refer collectively to all entitles OTHER THAN "natural persons" to whom the Code applies (as noted above) [Rule 1.4: "party" means any person or organization entitled to participate in a proceeding ..."]. Thus these Rules frequent referral to 'persons AND organizations.'

(d) Vicarious Liability

The term 'vicarious liability' refers to situations where the actions of one person may be taken, legally to be the actions another legal entity, either through complete transfer or by joint (both) liability.

These issues are treated more thoroughly in Ch.5, s.9: "Forms of Discrimination: Vicarious Liability Transferred to Employer".

(e) Joinder

On occasion parties may wish to file or merge applications together, and sometimes the Tribunal or respondents may wish to split such 'joined' applications apart [Code s.34(4)]. These issues, generally considered under the topic of "joinder", are discussed further in Ch.8, s.2(b): "Private Applications: Commencing Applications: Joinder of Applications".


3. Parties

Traditionally in civil and administrative litigation, "parties" are those entitled full participation in a legal proceeding. This concept is affirmed in the Part IV Rules [R1.4]:
"party" means any person or organization entitled to participate in a proceeding as a party under s. 36 of the Code and the Commission if added with the consent of the Applicant under s.37(2), and includes any other person or organization added by the Tribunal as a party or intervenor, with or without terms, including the Commission under s.37(1).
More precisely, the Code [s.36] sets out that the following are "parties" to a privately-initiated (under Code s.34) application:
  • the applicant, OR in the case of a proxy application [see s.6(c)
    below], the person on whose behalf the application is made;

  • any person against whom an order is sought in the application (called a "respondent").
If the application is initiated by the Commission (under Code s.35), then the Commission and any respondents are parties, AND if a private, parallel application has been initiated with respect to the same matter then the private applicant (or proxy applicant) are also parties.

In either case the Tribunal can add parties [Code s.36] or add and remove them "to provide for the fair, just and expeditious resolution of any matter before it" [Rules 1.7(b)].

It is the duty [Rule 1.13] of all parties to notify the Tribunal and all other parties, promptly and in writing, of any changes in their contact information.


4. Notice and 'Affected Persons'

The Tribunal may also direct that 'notice' of any proceeding be given to any person [Rules 1.7(f)]. This would presumably be done to give such persons the oppourtunity to apply for intervene in the proceedings [see s.5: "Intervention", below] or to be kept up to date on it for purposes of related proceedings (such as related court proceedings).

The Rules anticipate such a (usually) temporary non-party 'notice-only' status with the concept of an "affected person", which is defined as [Rule 1.4]:
"affected person" means a person, organization, trade union or other occupational or professional association identified in an Application or Response as being affected by a proceeding and entitled to notice of the proceeding;
It seems implicit from R3.14 that the Tribunal views such "notice" to be achieved by service of the application (or response) to the "affected person", which is only logical.

In essence then, a Tribunal direction that a person receive notice of the proceeding is an order that they are (at least temporarily) an "affected person". Application forms (and Response forms) call for the applicant (and respondent) to list persons who they think are affected by the application, and such persons are (at least temporarily) "affected persons".

It is important to appreciate that "affected person" status, absent a later intervention order (usually sought by a motion to intervene by the 'affected person') giving the person a fuller status (either as an 'intervenor' or a full party), is temporary. The time limits for making such a Request to Intervene are explained immediately below.


5. Intervention

(a) Overview

'Intervention' refers to the process whereby a person who is not yet a party (by virtue of law or prior Tribunal order: see s.3 above), seeks to become either a limited (according to terms set by the Tribunal) 'intervenor' or a full party intervenor. Would-be intervenors can include both private persons and the Commission.

(b) Private Intervention

. Overview

As is discussed in s.4 above ["Notice and Affected Persons"], the Code and its Rules establish an 'affected person'status which can lead to a fuller participatory status.

"Affected persons" named by parties in their applications or responses have the right to "Request to Intervene" before the Tribunal [Rule R3.14] within 35 days of receiving notice. If they fail to do so then they lose their 'affected' party status and are not entitled to any further notice of the proceedings. Additionally, the Tribunal could name other 'affected persons' or organizations to whom notice should be given, or who are entitled to request intervention [Rule 11.1].

On a Request to Intervene the Tribunal can order either full party status, or a defined and limited 'intervenor' status [Rule 11.1: "the Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding"].

. Private Intervenor Application

A Request to Intervene by a private person or organization is made using [R11.2]:

Form 5: Request to Intervene

It should be delivered to all existing parties, affected persons or organizations named in the application or response and filed with the Tribunal [for service and delivery methods see Ch.14: "Service"].

The Form 5 requires the following detail (this will all be called for in the form) [Rule 11.3]:
  • a description of the issue that the person or organization wants to address;

  • an explanation of the proposed intervenor's interest in the
    issues and its expertise, if any, regarding the issues;

  • the proposed intervenor's position, if any, on each of the issues
    raised in the Application and the Response; and

  • the 'material facts' upon which the proposed intervenor will
    rely.

    'Material facts' are the key facts or factual conclusions which
    legal analysis then operates on. They should be distinguished
    from raw evidence, which should NOT be included until expressly
    called for (eg. in a document or witness list). 'Material facts'
    is also the main defining concept used for civil litigation
    pleadings, and they are further discussed in the
    Isthatlegal.ca Small Claims Court Guide (Ontario), linked
    here:

    Small Claims Court (Ontario) Legal Guide, Ch.8: Pleadings
. Response to Private Intervenor Application

A "Response to Request" (to a private Request to Intervene) is made using [R11.4] (if the person wishes to respond) must be filed within 21 days after delivery of the "Request to Intervene":

Form 11: Request to Intervene

It should be delivered to all existing parties, affected persons or organizations, and to the proposed intervenor - and filed with the Tribunal [for service and filing methods see Ch.14: "Service"] [Rule 11.5].

(c) Commissioner Intervention

. Overview

In addition to initiating its own full application (under Code s.35: see Ch.9) - which may or may not be conducted simultaneously with a private (Code s.34) application - the Commission may seek intervenor status WITHIN a privately-initiated s.34 application. Such requests made be made either with or without the consent of the private applicant, and may be granted "on such terms as the Tribunal may determine having regard to the role and mandate of the Commission under this Act" [Code s.37]. The Commission' s mandate is discussed in Ch.18, s.3 ["Commission Role: Functions and Roles of the Commission"].

. Without Applicant Consent

A Request to Intervene by the Commission a private person or organization is also made using [Rule 11.7]:

Form 5: Request to Intervene

It should be delivered to all existing parties, affected persons or organizations named in the Application or Response and filed with the Tribunal [for service and filing methods see Ch.14: "Service"].

A Form 5 filed by the Commission requires the following detail (this will be called for in the form) [R11.8]:
  • a statement of the issues that the Commission wants to address;

  • an explanation of how the issues relate to the Commission's role,
    mandate and the public interest;

  • the Commission's position, if any, on each of the issues raised
    in the Application and the Response; and

  • all of the 'material facts' upon which the Commission will rely.

    'Material facts' are the key facts or factual conclusions which
    legal analysis then operates on. They should be distinguished
    from raw evidence, which should NOT be included until expressly
    called for (eg. in a document or witness list). 'Material facts'
    is also the main defining concept used for civil litigation
    pleadings, and they are further discussed in the
    Isthatlegal.ca Small Claims Court Guide (Ontario), linked
    here:

    Small Claims Court (Ontario) Legal Guide, Ch.8: Pleadings

  • the remedies that the Commission is seeking; and

  • the terms on which the Commission seeks to intervene.
Responses to a Commission's Request to Intervene [R11.9] (if the person wishes to respond) must be filed within 21 days after service of the "Request to Intervene":

Form 11: Response to Request to Intervene


It should be served on the Commission, all existing parties, and all 'affected persons' or organizations - and filed with the Tribunal [for service and filing methods see Ch.14: "Service"] [R11.10].

Where granting the Request the Tribunal may order intervention status "on such terms as the Tribunal considers appropriate" [R11.6].

. With Applicant Consent

Where the applicant consents to the intervention of the Commission such intervention is not automatic and still requires a Tribunal order. Further, even if inclined to grant it, must still set out the terms of intervention.

The form used for this is [R11.11]:

Form 6: Application by Commission to Intervene with Consent of Applicant

A consent section is included in the Form 6.

These should be delivered to all existing parties, and all 'affected persons' or organizations - and then filed with the Tribunal [for service and filing methods see Ch.14: "Service"] [R11.12].

The Form 6 must (this will all be called for in the form) [R11.13]:
  • contain a statement of the issues that the Commission wants to address;

  • set out the Commission's position, if any, on each of the issues
    raised in the Application and the Response;

  • set out all of the material facts upon which the Commission will
    rely;

  • set out the remedies that the Commission is seeking; and

  • set out the terms on which the Commission seeks to intervene.

6. Legal Representation, Proxy Applications and Legal Incompetents

(a) Overview

Obviously, "natural persons" are entitled to 'self-represent' themselves in Code proceedings. This section addresses issues that arise when natural persons and organizations are represented by others.

Such situations include traditional legal representation, such as by a paralegal or lawyer, and as well the Code-unique practice of 'proxy' applications (my term) for persons not wanting to advance applications on their own.

Readers should also be aware of the possibility of no-charge or subsidized legal services available through the statutorily-created Human Rights Legal Support Centre, discussed further in s.9 (below). The Centre's website is linked there.

(b) Legal Representatives

With the recent legitimization (and regulation) of paralegals brought about by amendments to the Law Society Act, the field of legal representation in Ontario changed significantly. Now both lawyers and paralegals are 'licensed' by the Law Society of Upper Canada ("LSUC") (previously lawyers were just 'lawyers'), and their respective areas of practice (which are not mutually exclusive) are much more clearly defined than they were before.

Both lawyers and paralegals (together, 'LSUC licensees') are entitled to act as legal representatives for any persons or organizations before the Ontario Human Rights Tribunal [Rule 1.14].

As well, Ontario's regulation of legal representation makes exceptions which allow some non-licensees (ie. persons who are neither lawyers nor paralegals), to act on behalf of those who are directly before the Tribunal either as parties, intervenors, or otherwise. Typically these exceptions are persons whose regular business or roles naturally involves them periodically in Code-related proceedings such as union officials or staff and officials of organizations that appear before the Tribunal in a party or intervenor status. These legal representation exceptions are explained at this link:

Law Society of Upper Canada: Licensing Exemptions

While LSUC licensees are governed with respect to professional conduct by the Law Society, the non-licensee excedptions are not - so (like most administrative Tribunals) the Ontario Human Rights Tribunal has an ability to exclude non-licensees from its proceedings:
Statutory Powers Procedures Act
s.23(3)
A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such pers on is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.
Of course, any legal representative - licensed or not - must engage in common sense communications (in writing) with the Tribunal and other parties as to when they are 'on-record' or 'off-record' [Rules 1.15], and of any changes in contact information [Rules 1.13]. While these noted Rules only refer to a need to do this when the representation is with respect to a 'party', basic professional responsibility would extend this naturally to situations involving intervenors and 'affected persons'.

The Tribunal has issued a policy on legal representation and I link it here for reference:

Representation Policy

(c) Proxy Applications

. Overview

Perhaps in an effort to relieve persons of the expense of legal proceedings, and to facilitate collective applications, the Code system allows others to make application on behalf of a 'principal' [the primary person or organization (my term)] where the principal consents.

In law, anyone who acts in a role like this is called a 'fiduciary', and they have a duty to act in the best interests of the principal - AND not to have any personal or institutional interests that conflict with those of the principal. Typically, such a role also (though not necessarily) involves using the services of a conventional legal representative such as a lawyer.

Anyone considering consenting to their application being advanced by a proxy should think seriously about the policy goals of their potential proxy, and whether they are the same as their own. Unions in particular habitually trade off the rights of individual members for larger, perceived policy goals - and other public interest groups are not always above this kind of behaviour.

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

Practice Direction: Applications on Behalf of Others

. Proxy Applications

As noted above, the Code establishes a 'proxy' (my term) system whereby applications can brought, with the consent of the principal, using the usual s.34 private application process [see Ch.8, s.2(e): Private Applications: Commencing Applications: Proxy Private Applications"] [Code s.34(5-7); Rule 6.8].

Proxy applications use different forms (Form 4) from regular private applications (which use Form 1) [Rule 6.1], must be made within the normal timelines for such applications [Code s.34(8)] and are subject to discretionary time extensions [Code s.34(2); s.34(9)] (see Ch.8: "Private Applications" for full application procedures). Consents are included within the Form 4.

The principal may withdraw a proxy application on their own [Code s.34(9)].

(d) Legal Incompetency

The 'proxy applications' procedure just discussed [(c) above] are premised on the principal having legal competency to consent to the proxy application. However that cannot always be assumed - particularly in the case of disabled persons.

While conventional (court) civil procedure has specifically addressed situations where parties must have legal assistance [ie. where they lack legal 'competency' (also called 'parties under disability'): eg. children, mental incompetents, 'absentees' (missing persons)] with the concept of a 'litigation guardian' [see Rule 7 of the Rules of Civil Procedure], administrative proceedings in Ontario (primarily governed under the generic Statutory Powers Procedures Act (SPPA) have no such well-established procedures.

Legal competency and capacity issues are discussed in more detail in Ch.3, s.10(c): "Grounds of Discrimination: Disability: Exceptions for Disability-Related Incapacity". The primary statute dealing with these issues is the Substitute Decisions Act (Ontario).


7. Special Needs

The Part IV Rules provide that persons manifesting Code grounds of discrimination [as enumerated in Ch.3] are entitled to accomodation of their needs by the Tribunal:
Rule 2.1
Parties, representatives and witnesses are entitled to accommodation of Code-related needs by the Tribunal and should notify the Registrar as soon as possible if accommodation is required. The provisions of these Rules will be interpreted and applied in a manner that is consistent with the Human Rights Code.
The Tribunal has issued a policy on Accessibility and Accomodation and I link it here for reference:

Accessibility and Accomodation Policy


8. Language of Proceedings and Interpreters

Language and interpreter issues are discussed in Ch.16, s.2(f): "Hearings: Procedures Common to All Forms of Hearing: Language of Proceedings".


9.
Human Rights Legal Support Centre

(a) Overview

Prior to the 2008 amendments to the Code, the Commission itself was charged with investigation of individual complaints, ostensibly on behalf of the complainants. The investigative system was an unmitigated disaster and the 'investigative' role became just another oppourtunity for the Commission to exert its fanatical 'gate-keeping' function, eliminating complaints wholesale through absurdly delayed and ineffectual investigations. In what was perhaps the worst travesty of justice in modern Canadian legal history, thousands upon thousands of complaints languished for years, all pending completion of a long-promised investigation before the Commission would even considered scheduling the matter for hearing.

(b) Human Rights Legal Support Centre

Thankfully, this investigative function has been stripped from the Commission. In its place the Code has established a new "Human Rights Legal Support Centre", essentially a legal clinic for Code applicants [Code s.45.11-45.18].

The Centre's website is linked here:

Human Rights Legal Support Centre

Some details of the establishment of the Centre are set out in the provisions noted. While government-funded it is meant to be arms-length from both the Commission, the Tribunal and the government.

Its formal objects are [Code s.45.12]:
  • to establish and administer a cost-effective and efficient system for providing support services, including legal services, respecting applications to the Tribunal under Part IV [these are s.34 private applications, and to a lesser extent the s.35 Commission-initiated applications]; and

  • to establish policies and priorities for the provision of support
    services based on its financial resources.
(c) Services

Support services to be provided include [Code s.45.13]:
  • advice and assistance, legal and otherwise, respecting the
    infringement of rights under Part I.

  • legal services in relation to,

    i. the making of applications to the Tribunal under Part IV,

    ii. proceedings before the Tribunal under Part IV,

    iii. applications for judicial review arising from Tribunal
    proceedings,

    iv. stated case proceedings,

    v. the enforcement of Tribunal orders.

  • such other services as may be prescribed by regulation.

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