Thursday, 9 August 2018

A front row seat to a human rights hearing

From day one at McCague Borlack, I assisted an associate with different aspects of a human rights matter. After researching case law, drafting a witness statement, and compiling a book of documents, I was excited to finally attend the hearing at the Human Rights Tribunal of Ontario.


The Vice-Chair initially proposed the option of participating in a mediated adjudication. This is a quicker way to negotiate a resolution that gives parties more autonomy over the terms. Although we were not successful, the terms discussed would not be brought up at the hearing.

At the hearing, the Vice-Chair determines whether the applicants had their rights infringed and if so, what the appropriate remedy is. To start off, an agreed statement of facts saves time and avoids producing the same documents multiple times. By weeding out the non-controversial facts, the focus of the hearing is on the divisive issues. However, agreeing on the facts is a negotiation exercise between lawyers.

The Vice-Chair’s decision is based only on relevant information at the hearing. This is presented orally through witnesses’ testimony and documentary evidence.

Relevance is based on two factors:
  • Whether the respondent treats the applicant differently or in a way that had a negative impact based on a ground of discrimination in the Human Rights Code, i.e. disability; and
  • Whether the applicant suffered a disadvantage or a loss, i.e. loss to the applicant’s sense of self-worth and dignity

Over the two-day hearing, I observed three witnesses engage in examination-in-chief and cross-examination. These are my three takeaways:
  1. Know the answer before asking the witness a question.
  2. Prepare your witness so they remember the evidence they need to give in their testimony. Since applicants may testify as witnesses to their own hearing, they are emotionally invested in the outcome. However, this is not the time for witnesses to vent their grievances.
  3. Avoid open-ended questions and restrict the testimony to admissible evidence. It is crucial to have the witness give evidence that helps your argument.

Since this hearing was extended by another two days, I was not able to observe submissions and closing arguments. The outcomes of the hearing can include a dismissal or a remedy in the form of a monetary award or order. Ultimately, the Human Rights Code is meant to remedy an infringement of human rights, rather than be punitive. Tribunals commonly “reserve” their decisions, so this decision will likely be released on CanLII in Fall 2018.

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