Canada Gazette, Part I, Volume 154, Number 35: Canadian Human Rights Tribunal Rules of Procedure, 2020

August 29, 2020

Statutory authority

Canadian Human Rights Act

Sponsoring agency

Canadian Human Rights Tribunal

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Executive summary

Issues

The rules of procedure currently in use at the Tribunal had never been published in the Canada Gazette. The purpose of the Canadian Human Rights Tribunal Rules of Procedure, 2020 is to codify and modernize the existing rules of procedure to ensure the proceedings are conducted informally and expeditiously.

Background

The Tribunal is a quasi-judicial independent tribunal established under the Canadian Human Rights Act (R.S.C., 1985, c. H-6). The Tribunal’s mandate is to inquire into complaints referred to it by the Canadian Human Rights Commission. Subsection 48.9(2) of the Canadian Human Rights Act gives the Chairperson of the Tribunal the authority to make rules of procedure to govern the procedural aspects of the proceedings.

Objective

The purpose of the Canadian Human Rights Tribunal Rules of Procedure, 2020 is to codify the informal rules of procedure currently in use at the Tribunal. These new rules also seek to modernize the informal rules to facilitate proceedings by, among other things, allowing a better use of technologies.

Description

The purpose of the Canadian Human Rights Tribunal Rules of Procedure, 2020 is to codify and modernize the informal rules of procedure currently in use at the Tribunal. The main objective is to simplify the Tribunal procedures and make them more efficient. Most of the rules already in use at the Tribunal stay the same under the new rules. However, a few important changes should be highlighted, such as

• a rule allowing the Tribunal to sanction non-compliance with the rules of procedure or any order of the Tribunal;
• a rule on electronic service and filing;
• a rule requiring parties to file a list of documents and a copy of the documents they intend to introduce into evidence at the hearing. Parties will be required to file the list and the documents with the Tribunal and provide these to the other parties no later than 45 days before the beginning of the hearing;
• a rule defining the Tribunal’s official record, access to that record and retention and disposal of the record, to clarify the public’s right of access to exhibits and other documents related to the CHRT’s inquiry;
• more detailed requirements for statements of particulars, to help parties identify such essential elements of their complaints as the discriminatory practice being alleged, the remedies sought, and the defences being relied upon;
• a rule allowing the panel to order that a hearing be conducted in whole or in part by means of a telephone conference call, video conference or any other appropriate electronic means; and
• a rule establishing a time limit for the issuance of decisions by the panel.

Regulatory development

Consultation

These rules of procedure are prepublished in Part I of the Canada Gazette, and the consultation process will run for 60 days. Furthermore, the draft rules of procedure have been posted on the Tribunal’s website since June 2020, and all interested persons are invited to submit comments, feedback and questions. Finally, in conjunction with these actions, the Tribunal has sent an email to a large group of stakeholders inviting them to consult and comment on the new rules of procedure. The stakeholder group is composed of individuals who have appeared before the Tribunal, federal departments and agencies, federally regulated companies, labour organizations, Indigenous organizations and human rights organizations, to name a few.

Comments received as a result of these consultations will be addressed at the end of the 60-day period, and necessary changes will be made to the rules of procedure before their publication in Part II of the Canada Gazette.

Modern treaty obligations and Indigenous engagement and consultation

Since the Canadian Human Rights Tribunal Rules of Procedure, 2020 are procedural in nature, the Tribunal does not believe that they can have an impact on modern treaty obligations and Indigenous engagement and consultation in Canada. That being said, as indicated above, the Tribunal made sure to consult with Indigenous organizations and organizations that advocate for Indigenous rights in order to solicit their feedback.

Instrument choice

Subsection 48.9(2) of the Canadian Human Rights Act clearly states that the Chairperson of the Tribunal may make rules of procedure. Therefore, no other instrument was considered. However, it is true that the Canadian Human Rights Tribunal Rules of Procedure, 2020 are also supplemented by non-regulatory instruments, such as practice notes and guides designed to provide the parties appearing before the Tribunal with a better understanding of its process. These instruments are published on the Tribunal’s website.

Regulatory analysis

Benefits and costs

The adoption of the Canadian Human Rights Tribunal Rules of Procedure, 2020 has an impact only on the practices and procedures used by the Tribunal to inquire into complaints referred to it by the Canadian Human Rights Commission. These new rules should not impose any additional costs on parties appearing before the Tribunal. In fact, these modernized rules are intended to facilitate proceedings, for example by allowing a better use of technologies, potentially even lowering the costs of proceedings to the parties.

Small business lens

The Canadian Human Rights Tribunal Rules of Procedure, 2020 should have no impact on small businesses, inasmuch as the objective is to ensure proceedings are conducted as informally and expeditiously as the requirements of natural justice allow. Moreover, small businesses represent a minority of the parties appearing before the Tribunal. Nevertheless, the cost reduction generated by promoting the use of technology should benefit small businesses.

One-for-one rule

The Canadian Human Rights Tribunal Rules of Procedure, 2020 are the only rules or regulations that will have been adopted by the Chairperson of the Tribunal since the enactment of the Canadian Human Rights Act. Therefore, the one-for-one rule does not apply to the Tribunal’s situation.

Regulatory cooperation and alignment

The Canadian Human Rights Tribunal Rules of Procedure, 2020 are the only rules or regulations that will have been adopted by the Chairperson of the Tribunal since the enactment of the Canadian Human Rights Act. Therefore, the Canadian Human Rights Tribunal Rules of Procedure, 2020 have no impact on regulatory cooperation and alignment initiatives.

Strategic environmental assessment

The Canadian Human Rights Tribunal Rules of Procedure, 2020 will not result in any environmental impacts.

Gender-based analysis plus (GBA+)

In light of the mandate given to the Tribunal by the Canadian Human Rights Act, the Tribunal wishes to ensure that any person whose complaint of discrimination is referred for inquiry has a full and ample opportunity to appear and present evidence and to make representations before the Tribunal. In this context, the Canadian Human Rights Tribunal Rules of Procedure, 2020 are intended to ensure that proceedings are conducted informally and expeditiously. They should have no negative impact on historically disadvantaged or vulnerable groups. On the contrary, they should enable all persons appearing before the Tribunal to understand the applicable procedure.

Implementation, compliance and enforcement, and service standards

The Canadian Human Rights Tribunal Rules of Procedure, 2020 will come into force on the 90th day after the day on which they are registered and will apply to all new complaints received by the Chairperson of the Tribunal on or after that day. If the parties to a complaint already before the Tribunal so wish, they may request permission from the Tribunal member to use the new rules of procedure from that time on.

The final version of the new rules of procedure will also be made available on the Tribunal’s website as soon as they are published in Part II of the Canada Gazette.

Contact

Jolane T. Lauzon
Counsel
Canadian Human Rights Tribunal
Email: CHRTrules-TCDPregles@chrt-tcdp.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 48.9(3) ^{footnote a} of the Canadian Human Rights Act ^{footnote b}, that the Chairperson of the Canadian Human Rights Tribunal, pursuant to subsection 48.9(2)^{footnote a} of that Act, proposes to make the annexed Canadian Human Rights Tribunal Rules of Procedure, 2020.

Interested persons may make representations concerning the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jolane T. Lauzon, Counsel, Canadian Human Rights Tribunal, 240 Sparks Street, 6th Floor West, Ottawa, Ontario K1A 1J4 (email: CHRTrules-TCDPregles@chrt-tcdp.gc.ca).

Ottawa, August 10, 2020

David L. Thomas
Chairperson of the Canadian Human Rights Tribunal

Canadian Human Rights Tribunal Rules of Procedure, 2020

Interpretation

Definitions

1 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 party that is added under an order referred to in rule 24 or 25. (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, in respect of an inquiry, the Commission, a complainant or a respondent. (partie)
• person includes an employer, employee organization, or employer organization and unincorporated entity. (personne)
• Registrar means the employee of the Administrative Tribunals Support Service of Canada who is responsible for the provision of 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. (intimé)

General

Inquiry

2 (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.

Conduct of inquiry

(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.

No panel assigned

3 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.

General principle

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

Non-exhaustive Rules

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

Varying or dispensing with Rules

6 A panel may, on the motion of a party or on its own initiative, vary a Rule, or dispense with compliance with if doing so advances the aims set out in Rule 4.

Consequences of Non-compliance

Non-compliance with Rules or orders

7 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, proceed with the inquiry, dismiss the complaint or order the party to remedy the non-compliance.

Vexatious conduct or abuse of process

8 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

Documents to be served and filed

9 Every document that must be served and filed under these Rules must be served on all parties and filed with the Registrar.

Methods of service

10 Service may be effected

• (a) by email to an email address provided by the other 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.

Electronic filing

11 (1) A document may be filed by transmitting to the Internet address designated by the Registrar.

Other methods of filing

(2) If it is not possible to file a document electronically, a document may also be filed by

• (a) delivering by hand or mailing two copies to the address designated by the Registrar; or
• (b) faxing it to the fax number designated by the Registrar.

Language of documents

12 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.

Request to Institute Inquiry

Request by Commission

13 (1) The request to the Chairperson to institute an inquiry into the complaint must be served and 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 name and telephone number of counsel representing the Commission,
  • (iv) the anticipated language of the inquiry, and
  • (v) any special arrangements required for the inquiry.

Update to information

(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

Statement of particulars — complainant

14 (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 presented or an order sought by any of the parties.

Privileged documents

(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.

Statement of particulars — Commission

15 (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 presented or an order sought by any of the parties.

Privileged documents

(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.

Response to statements of particulars — respondent

16 (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 presented or order sought by any of the parties.

Privileged documents

(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.

Reply

17 (1) Each of the complainants and the Commission, if it is participating in the inquiry, may 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.

Witnesses or documents in reply

(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 14(1)(e) and (f) and subrule 14(2) and, in the case of the Commission, the information set out in paragraphs 15(1)(c) and (d) and subrule 15(2).

Expert witness reports

18 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.

Provision of documents

19 (1) A party that discloses a document in accordance with paragraph 14(1)(f), 15(1)(e) or 16(1)(e) or subrule 20(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.

Documents not to be filed

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

Ongoing Disclosure

20 (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 presented 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 14(1)(f), 15(1)(e) or 16(1)(e) is inaccurate or incomplete.

Privileged documents

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

Notice of constitutional questions

21 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

Notice of motion

22 (1) Unless the panel agrees to proceed differently, 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.

Service and filing

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

Response

(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 Parties

Motion for interested party status

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

Content of motion

(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.

Decision of panel

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

Motion for party status

24 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.

Motion by a party to add a party

25 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

Scheduling by panel

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

Manner

(2) A case management conference may be held by telephone conference or in person.

Notice to Registrar

(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.

Conduct of conference

27 At a case management conference, the panel may

• (a) hear arguments on a motion or give the directions referred to in paragraph 22(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 14 to 19; and
• (e) deal with any other matter relating to the conduct of the inquiry.

Hearing and Evidence

Hours of hearings

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

Form of hearing

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

Remote conferencing

(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.

Technological assistance

(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.

Evidence taken outside a hearing

30 (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.

Directions for taking evidence outside a 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.

Special arrangements

31 A party that requires the services of an interpreter or other special arrangements at the hearing must notify the Registrar and the other parties of the requirement as soon as feasible.

Hearing in absence of a party

32 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.

List of documents

33 (1) Each party must file, no later than 45 days before the first scheduled day of the hearing, a list of the documents, other than any expert reports referred to under rule 18, that it intends to introduce into evidence at the hearing; and a copy of each of those documents.

Service on other parties

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

Undisclosed matters

34 A party may

• (a) raise an issue at the hearing only if that issue was raised under rule 14, 15, 16 or 17;
• (b) call a witness at the hearing only if that witness was identified and a summary of their anticipated testimony was provided under rule 14, 15, 16 or 17;
• (c) subject to paragraph (e), introduce a document into evidence at the hearing only if that document was disclosed under rule 14, 15, 16 or 17, provided under rule 19 and filed under subrule 33(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 14, 15 or 16; and
• (e) call an expert witness or introduce an expert report into evidence at the hearing only if the party complied with rule 18.

Admission of documents into evidence

35 Despite paragraph 34(c), a document is admitted into evidence only when

• (a) the document is introduced at the hearing; and
• (b) the document is received and accepted by the panel under paragraph 50(3)(c) of the Act.

Exclusion of witnesses

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

Exception

(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.

Communication with excluded witnesses

37 Unless authorized by the panel, a person may not communicate with a witness who has been excluded under subrule 36(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.

Communication with witnesses during examination

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

Book of Authorities

Content

39 (1) A party may serve and file a book of authorities containing copies of the legislative provisions, case law and other legal authorities to which the party intends to refer at the hearing.

Highlighted passages

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

Electronically available case law

(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.

Electronically available legislation

(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

Final decision

40 (1) In the case of a decision under section 53 of the Act, the panel must issue its decision within six months after the conclusion of the presentation of arguments and evidence by the parties.

Decision on motion

(2) In the case of a decision on a motion, the panel must issue its decision within three months of the presentation of arguments and evidence by the parties.

Notice of extension

41 The panel must give notice to the parties of an extension to the time limits referred to in rule 40.

Reassignment

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

Interest on Orders to Pay Compensation

Interest

43 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

Content

44 (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.

Public access

(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.

Retention

(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

90 days after registration

45 These Rules come into force on the 90th day after the day on which they are registered.