HRTO publishes “go forward” rules – summary of disclosure and production framework

8 Jun

On June 30th of this month, the bulk of the Bill 107 amendments to the Ontario Human Rights Code will come into effect and the Ontario system for resolving human rights matters will start allowing for “direct access” to the Ontario Human Rights Tribunal. This week, the Tribunal issued Rules of Procedure for “new applications” – those applications filed after June 30th and applications involving complaints that are currently outstanding at the Commission and that are re-filed as applications after years’ end.

The plain language guide published with the Rules states, “The Tribunal’s goal is to have the hearing completed within one year of receiving a completed application form.” In light of this aggressive goal, I thought it worth a quick summary of the disclosure and production framework contemplated by the rules, which starts up-front during the pleadings stage.

Here’s an overview of what is contemplated:

  • The Application form and the Response form ask the parties to identify (with reasons) “important” documents they, other parties and any third parties posses. The use of the word “important” is significant, and signals an appreciation for proportionality.
  • The Application form and the Response form ask for witnesses names and a short description of why each listed witness is “important.” The identities of potential witnesses are collected by the Tribunal up-front, but are not disclosed between the parties until shortly before a hearing. This indicates that the parties’ witness lists will initially be used for case management purposes.
  • The Tribunal also has a unique power of inquiry. At the request of a party it may order an inquiry where an inquiry is “required” in order to obtain evidence, the evidence “may assist in achieving a fair, just and expeditious resolution of the merits of the application” and ordering an inquiry is “appropriate.” When the Tribunal orders an inquiry it will authorize a person to conduct the inquiry and prepare of written report in accordance with terms of reference. The person conducting the inquiry will have a broad power to gather evidence in making a report, including the power to enter premises without a warrant, to request the production of documents and things, to question witnesses, to demand production of electronically stored information and to take photographs and video recordings. The Tribunal will not ordinarily treat the report as evidence unless the parties consent or unless the author of the report testifies. The Rules establish a preference for inquires to take place early in the process: “[A request for an inquiry] must be made promptly after the party becomes aware of the need for an inquiry.”
  • After the Tribunal confirms the hearing, the parties will have 21 days to deliver and file a list of all “arguably relevant” documents in their possession, including documents over which privilege is claimed. Parties must produce copies of non-privileged documents together with their lists. The Rules do not make any mention of electronic production.
  • The next significant date is 45 days before the first scheduled date of hearing. At this point the parties must exchange and file the following: (1) a list of documents on which they indend to rely; (2) a witness list along with will-say statements; and (3) any expert witness reports or, alternatively, a “full” summary of an expert witness’s evidence. Parties will ordinarily be precluded from relying on documents and witnesses not disclosed in accordance with this requirement.

There is no process for oral discovery (which would be atypical in an administrative procedure) but the Tribunal is offering voluntary mediation, an additional means for the parties and the Tribunal to glean the other sides’ potential evidence and assess the case. In fact, the Tribunal’s plain language guide states that it will use mediation to assess and manage matters that do not settle.

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