Canadian Human Rights Tribunal Rules of Procedure, 2021

Contents

Whereas, pursuant to subsection 48.9(3) of the Canadian Human Rights Act, a copy of the proposed Canadian Human Rights Tribunal Rules of Procedure, 2020, substantially in the annexed form, was published in the Canada Gazette, Part I, on August 29, 2020 and a reasonable opportunity was given to interested persons to make representations;^note^noteTherefore, the Chairperson of the Canadian Human Rights Tribunal, pursuant to subsection 48.9(2) of the Canadian Human Rights Act, makes the annexed Canadian Human Rights Tribunal Rules of Procedure, 2021.Ottawa, June 7, 2021Le président du Tribunal canadien des droits de la personne, David L. ThomasChairperson of the Canadian Human Rights Tribunal

Interpretation

1Definitions#

The following definitions apply in these Rules.

Act means the Canadian Human Rights Act. (Loi)

Chairperson means the Chairperson of the Tribunal, appointed in accordance with subsection 48.1(1) of the Act, who has supervision over and direction of the work of the Tribunal. (président)

Commission means the Canadian Human Rights Commission established by subsection 26(1) of the Act. (Commission)

complainant means the individual or group of individuals who filed a complaint under subsection 40(1) of the Act and any person added as a complainant under an order referred to in Rule 28 or 29. (plaignant)

document includes a drawing, photograph, film or sound recording. (document)

panel means the member or group of three members of the Tribunal assigned by the Chairperson under subsection 49(2) of the Act to conduct an inquiry. (formation)

party means the Commission, a complainant or respondent. (partie)

person includes an employee organization, employer organization and unincorporated entity. (personne)

Registrar means the employee of the Administrative Tribunals Support Service of Canada who is responsible for providing registry services to the Tribunal under the direction of the Chairperson, or a registry officer. (greffier)

respondent means, in respect of a complaint, a person alleged to be engaging or to have engaged in a discriminatory practice and any person added as a respondent under an order referred to in Rule 28 or 29. (intimé)

Application

2Non-application#

(1)These Rules do not apply to an inquiry for which the request to institute an inquiry to the Chairperson under subsection 49(1) of the Act was made before the day on which these Rules come into force.

(2)However, these Rules apply to any inquiry referred to in subsection (1) on consent of all parties.

General

3Inquiry#

(1)An inquiry is instituted by the Chairperson assigning a panel to it and concludes when the panel renders a decision under section 53 of the Act or when the complaint is settled, abandoned or withdrawn.

(2)The panel controls the conduct of an inquiry under these Rules including holding a case management conference, hearing a motion and conducting the hearing on the merits of a complaint.

4No panel assigned#

If a panel has not yet been assigned to conduct an inquiry, the Chairperson may exercise the powers assigned to a panel under these Rules.

5General principle#

These Rules are to be interpreted and applied so as to secure the informal, expeditious and fair determination of every inquiry on its merits.

6Needs of participants#

(1)These Rules are to be interpreted and applied so as to reasonably accommodate the needs of all participants in an inquiry.

(2)Any participant in the inquiry who requires accommodation must notify the Registrar as soon as feasible.

(3)Any participant in the inquiry who requires the services of an interpreter must notify the Registrar as soon as feasible.

7Rules not exhaustive#

A panel may decide any matter of procedure that is not provided for by these Rules.

8Varying or dispensing with Rules#

A panel may, on the motion of a party or on its own initiative, vary or dispense with compliance with a Rule, if doing so achieves the purpose set out in Rule 5.

Consequences of Non-compliance

9Non-compliance with Rules or orders#

If a party does not comply with these Rules, an order of a panel or a time limit established under these Rules, the panel may, on the motion of another party or its own initiative, and having regard to the circumstances, order the party to remedy their non-compliance, proceed with the inquiry, dismiss the complaint or make any other order to achieve the purpose set out in Rule 5.

10Vexatious conduct or abuse of process#

A panel may, on the motion of a party or its own initiative, make any order that it considers necessary against vexatious conduct or abuse of process.

Service and Filing

11Documents to be served and filed#

Every document to be served and filed under these Rules must be served on all parties or, if a party is represented, on their representative and filed with the Registrar.

12Methods of service#

Service may be effected

(a)by email to an email address provided by a party;

(b)by registered or ordinary mail or by courier;

(c)in person;

(d)by fax if the document does not exceed 20 pages; or

(e)electronically to an Internet address designated by the Registrar.

13Proof of service#

A panel may order that a party provide proof of service of a document.

14Filing#

A document may be filed by

(a)transmitting it to the Internet address designated by the Registrar;

(b)delivering by hand or mailing two copies to the address designated by the Registrar; or

(c)faxing it to the fax number designated by the Registrar.

15Language of documents#

Any document that is filed must be in English or French or be accompanied by a translation in English or French and an affidavit of the translator attesting to the accuracy of the translation.

16Representative of record#

(1)If a party files or serves a document signed by a representative, that representative is the representative of record for the party.

(2)A party may change or remove its representative of record or appoint a representative of record by serving and filing a written notice to this effect.

(3)If the representative of record is changed or a representative is appointed, the notice must set out the name, postal address, telephone number, fax number and email address of the new representative.

Request to Institute Inquiry

17Request by Commission#

(1)The request to the Chairperson to institute an inquiry into the complaint must be filed by the Commission and be accompanied by

(a)a copy of the complaint; and

(b)a written notice that sets out the following information:

(i)the name, postal address, telephone number, fax number and email address of each complainant and respondent,

(ii)the name, postal address, telephone number, fax number and email address of any representative of the complainant or respondent,

(iii)the anticipated language of the inquiry, and

(iv)any special arrangements required for the inquiry.

(2)If the information provided by the Commission under paragraph (1)(b) is inaccurate or changes, the party in question must notify the Registrar and the other parties as soon as feasible.

Statement of Particulars

18Statement of particulars — complainant#

(1)A complainant must serve and file, within the time limit established by the panel, a statement of particulars that sets out

(a)the facts they intend to prove in support of their complaint;

(b)the issues raised by the complaint and their position on each issue, including

(i)the prohibited grounds of discrimination referred to in section 3 of the Act, and

(ii)the discriminatory practices referred to in sections 5 to 14.1 of the Act;

(c)an explanation of the relationship between the prohibited grounds of discrimination raised under subparagraph (b)(i) and the discriminatory practices raised under subparagraph (b)(ii);

(d)any order they are seeking under subsections 53(2) to (4) of the Act;

(e)the name of each witness, other than expert witnesses, whom they intend to call, along with a summary of the witness’s anticipated testimony; and

(f)a list of all the documents in their possession that relate to a fact or issue that is raised in the complaint or to an order sought by any of the parties.

(2)The list of documents described in paragraph (1)(f) must indicate the documents in respect of which privilege is claimed and the basis for the privilege.

19Statement of particulars — Commission#

(1)If the Commission is participating at the inquiry, it must serve and file, within the time limit established by the panel, a statement of particulars that sets out

(a)its position on the facts on which the complaint is based and the issues it raises;

(b)any order it is seeking under subsections 53(2) to (4) of the Act;

(c)its position on the orders sought, as set out in the complainant’s statement of particulars;

(d)the name of each witness, other than an expert witness, whom it intends to call along with a summary of the witness’s anticipated testimony; and

(e)a list of all the documents in its possession that relate to a fact or issue that is raised in the complaint or to an order sought by any of the parties.

(2)The list described in paragraph (1)(e) must indicate the documents in respect of which privilege is claimed and the basis for the privilege.

20Response to statements of particulars — respondent#

(1)A respondent must serve and file, within the time limit established by the panel, a response to the statements of particulars that sets out

(a)its position on the facts on which the complaint is based and the issues raised by the complaint;

(b)whether it intends to rely on any exception set out in subsection 15(1) of the Act and, if so, the facts it intends to prove to establish that exception;

(c)its position on the orders sought, as set out in the statements of particulars;

(d)the name of each witness, other than an expert witness, whom it intends to call, along with a summary of the witness’s anticipated testimony; and

(e)a list of the documents that are in its possession that relate to a fact or issue that is raised in the complaint or to an order sought by any of the parties.

(2)The list described in paragraph (1)(e) must indicate the documents in respect of which privilege is claimed and the basis for the privilege.

21Reply#

(1)Each of the complainants and the Commission, if it is participating in the inquiry, may serve and file a reply, within the time limit established by the panel, that sets out any facts, issues, witnesses or documents they intend to present in reply to the response provided by the respondent.

(2)If a reply sets out additional witnesses or documents, the reply must include, in the case of the complainant, the information set out in paragraphs 18(1)(e) and (f) and subrule 18(2) and, in the case of the Commission, the information set out in paragraphs 19(1)(c) and (d) and subrule 19(2).

22Expert witness#

(1)For each expert witness whom a party intends to call, that party must serve and file, within the time limit established by the panel, a report that

(a)sets out the expert’s name and address;

(b)includes the expert’s curriculum vitae and a statement indicating how their training, education and experience qualify them to produce the report;

(c)sets out the substance of their anticipated testimony; and

(d)is signed by the expert.

(2)An expert witness has a duty to assist the panel in an impartial, objective and independent manner.

23Provision of documents#

(1)A party that discloses a document in accordance with paragraph 18(1)(f), 19(1)(e) or 20(1)(e) or subrule 24(1) for which privilege is not claimed must provide a copy of that document to the other parties within the time limit established by the panel.

(2)For greater certainty, documents provided to the other parties under subrule (1) must not be filed.

24Ongoing disclosure#

(1)A party must, as soon as feasible, serve and file a list of the additional relevant documents that are in its possession if

(a)a new fact or issue is raised or a new order is sought in a statement of particulars, response or other party’s reply; or

(b)the party discovers that the list of documents provided in accordance with paragraph 18(1)(f), 19(1)(e) or 20(1)(e) is inaccurate or incomplete.

(2)The list of documents must indicate the documents in respect of which privilege is claimed and the basis for the privilege.

25Notice of constitutional questions#

If a party intends to challenge the constitutional validity, applicability or operability of a statute or regulation, the party must serve notice in accordance with subsection 57(2) of the Federal Courts Act and Form 69 of the Federal Courts Rules.

Motions and Adjournments

26Notice of motion#

(1)Unless the panel agrees to proceed orally, a motion, including a motion for adjournment, must be initiated by a notice in writing that

(a)sets out the order sought and the grounds relied on; and

(b)specifies any consent obtained from other parties.

(2)The notice must be served and filed as soon as feasible.

(3)A panel that receives a notice of motion, including a notice of motion for adjournment,

(a)must give the other parties an opportunity to respond;

(b)may give directions respecting the time, manner and form of any response;

(c)may give directions respecting the presentation of arguments and evidence by the parties, including the time at which and the manner and form in which the arguments and the evidence must be presented; and

(d)may dispose of the motion as it considers necessary.

Addition of Parties and Interested Persons

27Motion for interested person status#

(1)A person that wishes to be recognized as an interested person in respect of an inquiry must serve and file a notice of motion for an order to that effect.

(2)The notice of motion must specify the assistance the person wishes to provide to the inquiry and the extent to which the person wishes to participate in the inquiry.

(3)If the panel grants the motion, it must specify the extent to which the interested person is permitted to participate in the inquiry.

28Motion for party status#

A person that wishes to be recognized by the panel as a party in respect of the inquiry must serve and file a notice of motion for an order to that effect.

29Motion by party to add party#

A party that wishes to have a person recognized as a party in respect of an inquiry must serve and file a notice of motion for an order to that effect after having served the notice of motion on the prospective party. The prospective party may make submissions on the motion.

Case Management Conference

30Scheduling by panel#

(1)A panel may schedule a case management conference to resolve matters of an administrative or procedural nature in respect of the inquiry.

(2)A case management conference may be held in person, by telephone conference call, video-conference, or any other form of electronic communication.

(3)A party that wishes to raise a matter at a case management conference must notify the Registrar as soon as feasible before the conference.

31Conduct of conference#

At a case management conference, the panel may

(a)hear arguments on a motion or give the directions referred to in paragraph 26(3)(b) or (c);

(b)after hearing the parties on an issue or motion, make any order that it considers necessary;

(c)set dates for the hearing on the merits of the complaint;

(d)establish time limits for complying with the obligations set out in rules 18 to 23; and

(e)deal with any other matter relating to the conduct of the inquiry.

Hearing and Evidence

32Hours of hearings#

Hearings are held on Monday to Friday, except on holidays, between 9:30 a.m. and 5:00 p.m local time.

33Form of hearing#

(1)Subject to subrule (2), a hearing is conducted in person.

(2)The panel may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication.

(3)The panel may give directions to facilitate the conduct of a hearing by the use of any electronic or digital means of communication or storage or retrieval of information, or any other technology it considers appropriate.

34Evidence taken outside hearing#

(1)A party may serve and file a notice of motion for an order to examine an individual who is unable to attend a hearing for the purpose of introducing that individual’s evidence at the hearing.

(2)If the motion is granted, the panel must give directions respecting

(a)the time, place and manner of the examination and cross-examination;

(b)the notice to be given to the individual being examined and the parties;

(c)the attendance of other witnesses; and

(d)any documents to be produced.

35Hearing in absence of party#

A hearing may proceed even though a party fails to appear before the panel if the panel is satisfied that the party received proper notice of the hearing.

36List of documents#

(1)Each party must file, by no later than the 30th day before the first scheduled day of the hearing, a list of the documents, other than any expert reports referred to under rule 22, that it intends to introduce into evidence at the hearing and a copy of each of those documents.

(2)The party must serve the list on the other parties.

37Undisclosed matters#

A party may

(a)raise an issue at the hearing only if that issue was raised under rule 18, 19, 20 or 21;

(b)call a witness at the hearing only if that witness was identified and a summary of their anticipated testimony was provided under rule 18, 19, 20 or 21;

(c)subject to paragraph (e), introduce a document into evidence at the hearing only if that document was disclosed under rule 18, 19, 20 or 21, provided under rule 23 and filed under subrule 36(1);

(d)only make submissions at the hearing about an order sought under section 53 of the Act if the party identified that order under rule 18, 19 or 20; and

(e)call an expert witness or introduce an expert report into evidence at the hearing only if the party complied with rule 22.

38Admission of documents into evidence#

Despite paragraph 37(c), a document is admitted into evidence only when the document is

(a)introduced at the hearing; and

(b)designated as an exhibit by the panel.

39Exclusion of witnesses#

(1)A panel may order that a witness be excluded from the hearing room until they are called to give evidence.

(2)The panel must not order the exclusion of a witness who is a party or whose presence is necessary to instruct a party’s representative, but the panel may require such a witness to give evidence before any other witness is called.

40Communication with excluded witnesses#

Unless authorized by the panel, a person may not communicate with a witness who has been excluded under subrule 39(1) regarding evidence given during their absence, or provide them with access to a recording or transcript of the hearing, until after they have given their testimony.

41Communication with witnesses during examination#

The panel may give directions restricting any communication with a witness during the examination of that witness.

Book of Authorities

42Content#

(1)A party may serve and file a book of authorities, to be used during closing arguments, containing copies of the legislative provisions, case law and other legal authorities.

(2)The relevant passages in each legal authority must be highlighted.

(3)For case law that is accessible to the public electronically, a party need only include in the book of authorities

(a)the relevant passages, along with the paragraphs immediately preceding and following those passages; and

(b)the case law citation, including the Internet address where the case law can be accessed.

(4)For legislation that is accessible to the public electronically, a party need only include in the book of authorities

(a)the relevant provisions; and

(b)the legislative citation, including the Internet address where the legislation can be accessed.

Time Limit for Decision

43Final decision#

(1)In the case of a decision under section 53 of the Act, the panel must issue its decision no later than six months after the day on which the presentation of arguments and evidence by the parties is concluded.

(2)In the case of a decision on a motion, the panel must issue its decision no later than three months after the day on which the presentation of arguments and evidence by the parties is concluded

44Notice of extension#

The panel must give notice to the parties of an extension to the time limits referred to in rule 43.

45Reassignment#

The Chairperson may, after consulting the parties, assign an inquiry to a different panel if the deliberation period is unduly long and a decision cannot be rendered in the foreseeable future.

Interest on Orders to Pay Compensation

46Interest#

Interest awarded under subsection 53(4) of the Act must be simple interest that is equivalent to the bank rate established by the Bank of Canada and must accrue from the day on which the discriminatory practice occurred until the day on which the award of compensation is paid.

Tribunal’s Official Record

47Content#

(1)For each inquiry, the Registrar must keep an official record that contains

(a)the complaint;

(b)the request to institute an inquiry by the Commission;

(c)the statements of particulars and any responses or replies;

(d)any motion materials;

(e)any correspondence between the Registrar and the parties;

(f)any summaries of case management conferences;

(g)any book of authorities;

(h)any written submissions;

(i)any orders, rulings or decisions;

(j)any exhibits;

(k)any recordings of the hearing and any transcripts of those recordings; and

(l)any other documents that are designated by the Panel.

(2)Subject to any confidentiality measures or orders under section 52 of the Act, the public may access the Tribunal’s official record under such terms and conditions as specified by the Chairperson.

(3)The Chairperson may establish the retention period for the official record in respect of any inquiry that has concluded and for which any judicial review or appeal proceedings have been exhausted.

Coming into Force

4830th day after registration#

These Rules come into force on the 30th day after the day on which they are registered.

Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.