Canadian Human Rights Tribunal Rules of Procedure, 2021: SOR/2021-137

Canada Gazette, Part II, Volume 155, Number 13

Registration
SOR/2021-137 June 11, 2021

CANADIAN HUMAN RIGHTS ACT

Whereas, pursuant to subsection 48.9(3) footnote a of the Canadian Human Rights Act footnote b, 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;

Therefore, the Chairperson of the Canadian Human Rights Tribunal, pursuant to subsection 48.9(2)footnote a of the Canadian Human Rights Act footnote b, makes the annexed Canadian Human Rights Tribunal Rules of Procedure, 2021.

Ottawa, June 7, 2021

David L. Thomas
Chairperson of the Canadian Human Rights Tribunal

Canadian Human Rights Tribunal Rules of Procedure, 2021

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 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

Non-application

2 (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.

Consent

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

General

Inquiry

3 (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.

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

4 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

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

Needs of participants

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

Notification to Registrar

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

Interpretation services

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

Rules not exhaustive

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

Varying or dispensing with Rules

8 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

Non-compliance with Rules or orders

9 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.

Vexatious conduct or abuse of process

10 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

11 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.

Methods of service

12 Service may be effected

Proof of service

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

Filing

14 A document may be filed by

Language of documents

15 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.

Representative of record

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

Notice

(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.

Information

(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

Request by Commission

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

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

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

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

19 (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

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

20 (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

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

21 (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.

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 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).

Expert witness

22 (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

Duty

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

Provision of documents

23 (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.

Documents not to be filed

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

Ongoing disclosure

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

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

25 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

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

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,

Addition of Parties and Interested Persons

Motion for interested person status

27 (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.

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 person is permitted to participate in the inquiry.

Motion for party status

28 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 party to add party

29 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

30 (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 in person, by telephone conference call, video-conference, or any other form of electronic communication.

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

31 At a case management conference, the panel may

Hearing and Evidence

Hours of hearings

32 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

33 (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 hearing

34 (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 hearing

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

Hearing in absence of party

35 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

36 (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.

Service on other parties

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

Undisclosed matters

37 A party may

Admission of documents into evidence

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

Exclusion of witnesses

39 (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

40 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.

Communication with witnesses during examination

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

Book of Authorities

Content

42 (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.

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

Electronically available legislation

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

Time Limit for Decision

Final decision

43 (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.

Decision on motion

(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

Notice of extension

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

Reassignment

45 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

Interest

46 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

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

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

30th day after registration

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Executive summary

Issues: For the first time since the establishment of the Canadian Human Rights Tribunal (the “Tribunal” or “CHRT”), rules of procedure adopted by the Chairperson are published in the Canada Gazette. These new rules of procedure largely codify the rules already governing proceedings at the Tribunal.

Description: The Canadian Human Rights Tribunal Rules of Procedure, 2021 are intended to govern proceedings before the Tribunal under the Canadian Human Rights Act.

Rationale: 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.

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, 2021 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, 2021 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, 2021 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

Regulatory development

Consultation

In June 2020, prior to the prepublication of the proposed rules in the Canada Gazette, Part I, a consultation process was launched when the draft rules of procedure were posted on the Tribunal's website and stakeholders were invited to submit comments, feedback and questions. On August 29, 2020, the draft rules of procedure were prepublished in the Canada Gazette, Part I. The consultation period was extended to November 27, 2020.

In conjunction with prepublication in the Canada Gazette, Part I, the Tribunal sent an email to a large group of key stakeholders inviting them to consult and comment on the new rules of procedure. The stakeholder group was composed of individuals who had appeared before the Tribunal, federal departments and agencies, federally regulated companies, labour organizations, Indigenous organizations and human rights organizations, among others.

Eleven written submissions were received from the stakeholder community at the close of the consultation process. As a result of the consultations and stakeholder input, changes were made to the rules of procedure for their publication in Part II of the Canada Gazette. Notable changes include reducing the time limit to file documents under rule 36(1) from 45 days to 30 days. In addition, the time period for the coming into force of the rules of procedure was reduced from 90 days to 30 days following registration.

Modern treaty obligations and Indigenous engagement and consultation

Since the Canadian Human Rights Tribunal Rules of Procedure, 2021 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, 2021 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, 2021 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, 2021 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, 2021 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, 2021 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, 2021 have no impact on regulatory cooperation and alignment initiatives.

Strategic environmental assessment

The Canadian Human Rights Tribunal Rules of Procedure, 2021 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, 2021 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, 2021 will come into force on the 30th 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

Danielle Linnen
Counsel
Canadian Human Rights Tribunal
Email: CHRTrules-TCDPregles@chrt-tcdp.gc.ca