The Human Rights Tribunal of Ontario (the HRTO) has developed the following approach to the form of its proceedings (hearing formats) during the COVID-19 pandemic.
At this time, there are no in-person hearings. All hearings are being conducted by written hearing, telephone hearing or videoconference hearing.
The HRTO's practice of scheduling in-person hearings is informed by the reality of the COVID-19 pandemic. Indefinitely adjourning matters that previously would have been heard in-person to an unknown date in the future does not promote the fair, just and expeditious resolution of matters before the HRTO.
The procedure outlined in this document provides general information only. It is not a rule within the meaning of the HRTO's Rules of Procedure. The HRTO may vary the approach to hearing formats where appropriate.
This document is available on the internet at www.sjto.ca/hrto and in various accessible formats.
For an alternative format or a paper copy, please contact the HRTO at: 416-326-1312, toll-free: 1-866-607-1240, TTY: 416-326-2027, TTY toll-free: 1-866-607-1240.
As set out in Rule 3.5 of the HRTO Rules of Procedure, the HRTO may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate. Currently, in-person hearings are not being scheduled because of the Covid-19 pandemic.
The parties are notified of the hearing format in the HRTO's Notice of Hearing.
In a written hearing, the HRTO makes its decision based on the written materials filed by the parties. The HRTO typically holds written hearings for procedural matters, for example, amending an application or document disclosure.
The Human Rights Code and the HRTO Rules of Procedure state that no application that is within the HRTO's jurisdiction will be finally disposed of without affording the parties an opportunity to make oral submissions. Therefore, for hearings which may result in an application being dismissed, the HRTO will typically not hold a written hearing, unless the parties consent and waive their right to make oral submissions.
In a telephone hearing, the HRTO hears the parties' evidence and legal argument by telephone. The HRTO typically conducts preliminary and summary hearings by telephone.
In a videoconference hearing, the HRTO hears the parties' evidence and legal argument by videoconference using the internet and device with a webcam. During the COVID-19 pandemic, videoconference hearings will typically be conducted for hearings of the merits of an application.
Tribunals Ontario has adopted a Guide to Videoconferencing Proceedings and Microsoft Teams for its tribunals, including the HRTO. It can be found here: http://www.sjto.gov.on.ca/en/videoconferencing/
A party may object to the hearing format.
Parties, representatives and witnesses are entitled to accommodation of Code-related needs and may request a different hearing format if accommodation is required. Hearing format accommodation requests should be made as soon as possible and sent by email addressed to the Registrar at email@example.com. Parties may be asked to provide supporting documentation.
A party may be of the view that the hearing format chosen by the HRTO is not appropriate. If so, a party may file a Request for Order During Proceedings objecting to the hearing format. The other party must then file a Response to Request for Order During Proceedings setting out their response to the objection.
The HRTO adjudicator assigned to hear the application will consider the parties' arguments and make a decision as to whether the hearing format chosen by the HRTO is appropriate.
The HRTO may proceed by written or electronic hearing, which includes telephone or videoconference, where it is fair, just and expeditious to do so.
The circumstances where the HRTO will not hold a written or an electronic hearing are set out in the Statutory Powers Procedure Act ("SPPA") and the HRTO's case law.
The HRTO will not hold a written hearing if a party satisfies it that there is a good reason for not doing so: SPPA s. 5.2(1).
The HRTO will not hold an electronic hearing if a party satisfies it that holding an electronic hearing rather than an in-person hearing is likely to cause the party significant prejudice: SPPA s. 5.2(2). Some of the factors that the HRTO may consider where a party objects to proceeding by electronic hearing include where a party or a witness cannot participate because they do not have the necessary equipment, whether the HRTO can conduct a procedurally fair hearing in an electronic format, and the delay arising from indefinitely postponing an in-person hearing. This is not an exhaustive list. Each case is different.
The HRTO may hold a written hearing or an electronic hearing even where both parties oppose the format chosen by the HRTO. Decisions regarding the appropriate hearing format remain at the discretion of the HRTO adjudicator assigned to hear the application.