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Human Rights (Ontario) Law
(30 September 2009)

Chapter 13 - Pre-Hearing Procedures


  1. Overview and Comment
    (a) General
    (b) Comment
  2. Notice of Constitutional Question
    (a) Overview
    (b) Notice of Constitutional Question
    (c) Where and When to Serve
  3. Mediation
    (a) Overview and Comment
    (b) Mediation Procedures
    . Overview
    . Confidentiality
    . Authority to Settle
  4. Settlement
    (a) Overview
    (b) Pre-Application Settlements as Defences
    (c) Application Settlements
    . Overview
    . Formalizing Application Settlements
    (d) Contravention of an Application Settlement
    . Overview
    . Parties
    . Time Limitation
    . Form and Content
    . Response
    . Remedies
  5. Case Assessment Direction

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


1. Overview and Comment

(a) General

The new Code system has established three forms of pre-hearing procedures that applicants must contend with in addition to the others permeating the Code process at practically every level. These are mediation, case assessment and settlement, and they are considered in turn below. Also covered in this chapter are procedures for raising constitutional (invariably Charter) issues before the Tribunal.

(b) Comment

It never fails to amaze me how modern Ontario administrative proceedings continue - probably in the name of some unfortunate business administration 'efficiency' model - to pile additional procedures and processes onto the simple and straight-forward hearing systems that the English common law system has quite competently evolved.

It was in fact this focus that was the downfall of the prior OHRC Commission-dominated regime where the Commission itself intervened between human rights "Boards of Inquiry" and complainants (as they were then called). The prior regime purported to 'assist' complainants with investigations so drawn-out and incompetently conducted that complainants found themselves facing far more lethal opposition from the Commission than they ever faced from respondents.

I repeat this theme ad nauseum throughout this Isthatlegal.ca Human Rights Law (Ontario) Legal Guide and I make no apologies for it. In my opinion the new Code and Rules made under it are riddled with the same sort of procedural snares and gate-keeping that rendered the old OHRC legislation essentially pointless.


2. Notice of Constitutional Question

(a) Overview

When a participant "intends to question the constitutional validity or applicability of any law, regulation, by-law or rule or where a party claims a remedy under s. 24(1) of the Charter of Rights and Freedoms, in relation to an act or omission of the Government of Canada or the Government of Ontario" before a Tribunal, a special "Notice of Constitutional Question" is required to be served on all other participants and filed [Courts of Justice Act s.109, esp 109(6); Rule 4].

Section 24(1) of the Charter is a remedial section of the Charter that allows "courts of competent jurisdiction" (which the Tribunal views itself as) to grant Charter relief in accordance with their pre-existing remedial jurisdiction. That is, a Charter argument may assist success in one's case, but it does not expand the remedial range of the Tribunal. Most important to know is that the Human Rights Tribunal, like all tribunals, does not have what is called 'declaratory' jurisdiction to declare a "law, regulation, by-law or rule" void and of no force or effect. The most any tribunal like the Human Rights Tribunal can do is find that, in the case before it and only in the case before it, that the Charter-challenged law should not be applied. Such a finding will not prevent that same challenged law or rule being applied in the next case, and - unless that applicant (or respondent) goes to the effort of advancing a Charter case as well - then the impugned rule will operate despite the earlier result .

This may seem like a silly result, and in many cases it is. If a law or rule has been consistently found to be Charter-offensive then the Tribunal (or the Ontario legislature, as the case may be) should undertake efforts to amend it and eliminate the chronic rights-violation. That said, sometimes Charter violations turn on the specific facts of each case and it is not a safe presumption that the operation of the impugned law will always be Charter-offensive.

Invoking Charter arguments plainly increases the complexity of and effort required in a case and should not be done lightly. It is beyond the scope of this Isthatlegal.ca Human Rights Law (Ontario) Legal Guide to explore Charter law any further.

(b) Notice of Constitutional Question

The form is set out in the Courts of Justice Act at s.109 and is linked here:

Notice of Constitutional Question

(c) Where and When to Serve

In addition to service of the Notice of Constitutional Question on all participants (and filing with the Tribunal), the Notice should also be served on both the federal and Ontario Attorneys General (their addresses are noted on the above form). The purpose of serving the A-Gs is so that they might consider whether the issue is important enough to intervene in the case.

Further, it is important to file the Notice "as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued" [CJA s.109(2.2)]. Courts have held that failure to meet this standard may preclude the participant from advancing Charter arguments at all. Further, failure to advance Charter arguments at the tribunal level may be held against a party who attempts to raise them later on a judicial review.


3. Mediation

(a) Overview and Comment

Mediation is a favourite of ADR (alternative dispute resolution) advocates. In my mind it is a method largely unsuited to resolving human rights matters, and one whose main impact is to increase effort, cost and time delay in proceedings already effectively beyond the reach of most citizens by reason of already excessive procedural requirements (see Ch.1 "Overview" for my views on the shameful role of the past Ontario Human Rights Commission in such constructive denial of access to justice).

Mediation can only work effectively where the parties are both at a reasonably common knowledge, financial - and ultimately tactical - level. Requiring mediation between an elderly immigrant with little understanding of the operation and principles of a complex modern administrative law scheme and a well-funded and 'lawyered-up' multinational corporation is not such a case. Further, the hard-felt allegations and feelings that are commonly involved in discrimination cases (eg. 'you are a discriminating/harassing racist/sexist/ageist etc'), are not ones where amicable settlement is initially within easy reach.

It is worth noting that the Code itself is silent on 'mediation' as such, and the jurisdictional authority of the Tribunal to engage in it is derived from the more generic Ontario Statutory Powers Procedures Act (SPPA). This jurisdiction is discussed in the Isthatlegal.ca Administrative Law (Ontario) Legal Guide at the following link:

Administrative Law (Ontario)(SPPA): Ch.12 Alternative Dispute Resolution

(b) Mediation Procedures

. Overview

The Rules are ambiguous as to whether mediation can be required of participants as a mandatory PROCESS (as opposed to the imposition of a 'mediated' settlement, which of course is NOT allowed). The wording of Rule 15.1 ("may be offered by the Tribunal or requested by a party") clearly suggests that it is not, but in my opinion the broad procedural discretionary powers of the Tribunal (see Ch.7: "The Tribunal and its Powers") clearly enable it to impose the mediation process on parties despite their wishes.

That said, if and when mediation is decided upon, the Tribunal may determine what participants "should receive notice of mediation and should be entitled to participate" [Rules 15.5].

. Confidentiality

Mediation has specific requirements that must be respected if the process is going to work and not actually be counter-productive. One of these is that the parties must be free to disclose and discuss their cases without those statements and admissions being used against them as evidence without their consent (ie. witnesses to statements made during mediation cannot be called to testify as to those statements at the hearing of the case) [Rules 15.4]. Of course, while this protection guards against direct us e of the mediation statements at a hearing, it cannot guard against what is called the 'derivative use' of such statements for their informational value. Some parties will seek (in bad faith) mediation solely for the purpose of such 'intelligence-gathering' - another hazard of the process.

Confidentiality is an aspect of a broader legal principle called 'mediation (or negotiation) privilege', and it is akin to solicitor-client privilege in its range and effect. It's purpose is to allow parties to discuss their case freely, giving the greatest latitude to settlement possibility. To this end, anyone participating in mediation is required to sign a confidentiality agreement before mediation commences [Rule 15.2].

. Authority to Settle

As well, to avoid 'double-dealing' (and time delay), "the Tribunal may direct that a party or a person with authority to settle on the party's behalf be present at the mediation" [Rule 15.3].

'Double-dealing' is an unsavoury tactic where one person negotiates for a party, pulling the other to the extreme of their settlement position, and then asserts the need to have their position 'cleared' by a superior. Invariably that 'superior' then repudiates the tentative settlement, treats the previously 'agreed' position as the new starting point, and tries to squeeze more concessions out of their opponent. This is a clear abuse of mediation that can be addressed by an effective Rule 15.3 order.


4. Settlement

(a) Overview

When considering settlement of anything Code-related it is important right from the start to distinguish between settlements entered into BEFORE a Code application has been commenced ("pre-application settlements"), and those entered into AFTERWARDS in settlement of that same proceeding ("application settlements"). Keeping in mind that settlements are essentially contracts to end a cause of action (and necessarily any proceedings based on them), a practical concern arises as to the consequences following on breach or non-compliance with the settlement. Breach or non-compliance can occur in several ways, including: continuation of discriminatory practices, failure to comply with positive and agreed remedial duties, or re-initiation of legal proceedings grounded upon the (allegedly) settled matters.

It is on this issue of breach that the distinction between the two settlement types becomes pertinent, as the consequences of breach vary between them.

Settlement terms can be simple or complex depending on the nature of the case, particularly how interwoven the Code cause of action is with non-Code causes of action. Because of that, and because of the need for settlements to achieve what they are intended - and end to the issue, I will not consider settlement terms further (except see "Formalizing Application Settlements", below) but will recommend that people get legal assistance. The balance of this section discusses formalizing application settlements and the implications of breaching settlements.

(b) Pre-Application Settlements as Defences

As noted above, "pre-application settlements" are those entered into absent the commencement of a Code application, typically at the stage of initial correspondence between the parties seeking early, non-litigious resolution. There is no legal rule that such a settlement be in writing, but a party would have to be pretty naive not to insist on it.

While the Code and its Rules have no role in anticipating, facilitating (ie. mediation) or formalizing pre-application settlements, they are of course relevant to any later Code proceedings should they be commenced.

In Ch.8, s.3(e): "Private Applications: Responses: Where Related Court Proceedings, Settlement or Prior Code Complaint", the impact of a pre-application settlement is set out (readers should refer to that for a full consideration of the issue). Essentially though the Rules allow the pre-application settlement to be advanced as a defence by a respondent in the form of a limited formal 'Response', which will be resolved as a preliminary matter. If the defence is unsuccessful, then the Tribunal can order that a full Response be served and filed.
Note:
Technically, these 'preliminary defence' procedures are also available to respond to a redundant Code application where there has been a prior 'application settlement'. That said, in those circumstances recourse to the more direct and flexible Rule 24 "Contravention of Settlement" provisions [(d) below] seems preferable, though use of either - or both - procedures may be possible as they are not mutually exclusive.
(c) Application Settlements

. Overview

'Application settlements' (as I use the term) are settlements entered into subsequent to, and in settlement of, Code applications. Unlike 'pre-application settlements' (discussed above), application settlements are significantly anticipated by the Code and its rules, with articulated procedures in the event of alleged contravention.

Application settlements can be entered into both with respect to private [Code s.34] applications and Commission [s.35] applications. The Code requires that - to be effective - application settlements be "agreed to in writing and signed by the parties" [Code s.45.9(1)].

Unlike pre-application settlements, the Code's focus with respect to application settlements is enforcement [Code s.45.9(2)]. Two procedures to resolve such disputes are offered under the Rules, one commenced jointly and one unilaterally.

. Formalizing Application Settlements

The Code allows the parties to an application settlement (which by definition must be in writing and signed) to formalize it into a 'consent order' of the Tribunal by the making of joint motion to that effect (Ch.11: "Motions") [Code s.45.9(2)].

Alternatively, "the parties" (clearly suggesting they are acting jointly) to an application settlement may file it with the Tribunal [Rule 15.6].

Note that any filed application settlement (whether filed for a consent order or just for the record) "must include a provision waiving the right to make oral submissions and a provision requesting the Tribunal dispose of the Application in accordance with the settlement" [Rule 15.6].

Such formalization may have little practical value in many instances, but can serve to avoid any disputes over the authenticity of the settlement document. If the settlement is nor converted to an order or filed with the Tribunal it is still open to a party, in the event of allegations of contravention, to file the application settlement documentation later. This is in fact required under Rule 24.2 to initiate an "Application for Contravention of Settlement" (see immediately below).

(d) Contravention of an Application Settlement

. Overview

If a party to an application settlement believes that another party had breached it, they may make and 'application' (not a 'motion') to the Tribunal for "any order that it considers appropriate to remedy the contravention" [Code s.45.9(8)], must serve it on all parties to the settlement and must file it with the Tribunal [Rule 24.1].

The requirement that this process be initiated by an 'application' and not a 'motion' suggests that the full application procedures of s.34 [see Ch.8: "Private Applications"] are triggered, however Rule 24 makes it clear that much more abbreviated application procedures are to be used, as explained in this section.

Further note that Rule 21.1 (expedited proceedings) [see Ch.12, s.5: "Summary and Related Procedures: Expedited Proceedings"] specifically mentions Rule 24 (contravention of settlements) as a situation where expedited proceedings may be used. Expedited proceedings can thus be sought to accelerate the procedures discussed in this section.

. Time Limitation

Subject to an extension where "delay was incurred in good faith and no
substantial prejudice will result to any person affected by the
delay", an application alleging a contravention of settlement must be
brought [Code s.45.9(3,4)]:
  • within six months after the contravention to which the application relates, or

  • if there was a series of contraventions, within six months after
    the last contravention in the series.
. Parties

The Tribunal may add additional parties (including the Commission) to the application, the Commission may on its own initiative intervene on terms set by the Commission, and the Commission may intervene as a party if the applicant so consents [Code s.37, 49.5(6,7)].

. Form and Content

The form for such an application is [Code s.45.9(5); Rule 24(1)]:

Form 18: Application for Contravention of Settlement

The application "must include an answer to each question" in the Form and include with it a copy if the application settlement [Rule 24.2].

. Response

Responses by the other parties are due for service and filing within 14 days after service of the Application, and use [Rule 24.3]:

Form 19: Response to Application for Contravention of Settlement

. Remedies

The remedial provision applicable here ["any order that it considers appropriate to remedy the contravention": Code s.45.9(8)] is broad in its range. In the case where an application settlement is contravened by the bringing of a second, duplicative Code application to obvious order would be to dismiss that proceeding.

Otherwise, when dealing with non-compliance with positive duties under the application settlement the Tribunal (like the civil courts where this rule is formalized) would logically offer the party seeking enforcement two options. The first is to void the settlement and allow the Code matter to continue in the normal course as though the settlement never happened.

The second would be to (if not already done) formalize the settlement terms into a Tribunal order to facilitate enforcement. Administrative tribunal orders in Ontario are enforced through the civil court enforcement procedures, which are discussed at this Isthatlegal.ca Small Claims Court Law (Ontario) link:

Small Claims Court Law (Ontario): Ch.16: "Collection"


5. Case Assessment Direction

A 'case assessment direction' is a document that may be sent by the Tribunal to the parties, and it "may address any matter that, in the opinion of the Tribunal, will facilitate the fair, just and expeditious resolution of the Application and may include directions made in accordance with any of its powers in Rule 1.6 [alternative dispute resolution techniques] and 1.7 [any order available on motion: see Ch.11 "Motions"]" [Rule 18.1]. Parties at hearing are required to be responsive to and are governed by directions contained in a case assessment direction [Rule 18.2].

Note that failure to file materials as required by a case assessment direction may permit the Tribunal's to exercise its' Rule 5.7 discretion to "refuse to allow the party to present evidence or make submissions about the fact or issue" that was the subject of the default. However such discretion only exists where the default has caused 'substantial prejudice or undue delay to the proceedings'.

As with so many of the discretionary procedural authorities granted the Tribunal under the Code [see Ch.7: "The Tribunal and its Powers"] and (by itself) in the Rules, the 'case assessment direction' power can have significant and quite unpredictable effects on the conduct of a case, depending on how it is used.
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