Focus: Human Rights Tribunal of Ontario Releases Practice Direction on New Case Processing System
New Case Processing System at the Human Rights Tribunal of Ontario
The Human Rights Tribunal of Ontario (“HRTO”) recently released a practice direction on a new case processing system in response to an increased caseload and in an effort to process cases more quickly. This post will outline the new system and the potential implications it may have on practice at the HRTO.
Overview
If you regularly appear before the Human Rights Tribunal of Ontario (“HRTO”), you may have noticed an administrative backlog in processing cases. According to the HRTO, in the past year and a half, it has experienced an unprecedented 25% increase in its caseload.
To address this increase, the HRTO has rolled out a new case processing system for all applications filed on or after March 1, 2018. The HRTO hopes that the new system will have a number of benefits such as resolving cases more efficiently and improving the HRTO’s ability to track case progress. In particular, the new system includes three main changes:
- Assignment of one Vice-chair to each application from the time of filing until the case closes (exclusive of Mediation),
- Most hearings will be scheduled for one day, and
- Mandatory Case Management Conference Calls for each case will be scheduled approximately 30 days before the first day of the hearing.
Practice Implications
Of these changes, the one that may have the most significant impact on practice at the HRTO is the mandated Case Management Conference Call (“CMCC”).
CMCCs will be scheduled for one hour on a Monday approximately 30 days prior to the first day of hearing. The purpose of the CMCC is three-fold: to address any remaining preliminary or procedural issues in advance of the hearing, to discuss how the hearing will proceed, and to explore the potential for mediation/adjudication at the start of the hearing.
a) Addressing Preliminary or Procedural Issues
Issues Appropriate for the CMCC
Addressing Preliminary or Procedural Issues
The CMCC adds a significant procedural step in a case at the HRTO with respect to addressing certain kinds of issues. The HRTO identifies the following as appropriate issues to be addressed during a CMCC:
- Objections to hearing documents or witnesses,
- Requests for a witness to testify by way of alternative means (via video or phone) or at a specified time,
- Requests for proper or more specific witness statements, and
- Other issues that arise out of the disclosure of witness statements and hearing documents.
A party who wishes to raise one of these procedural matters at the CMCC must identify that issue at least 7 days prior to the CMCC in writing (by way of letter or email) directly to the Registrar and copying the other parties. The other parties may respond in writing, but are not required to do so. A formal Request for Order (Form 10) or compliance with Rule 19 is not required.
At the CMCC, parties must be prepared to make submissions to the assigned Vice-Chair on the identified issues. The Vice-Chair may make oral rulings at the CMCC or may issue written rulings without detailed reasons. If a party could have raised an issue at the CMCC but failed to do so, the Vice-Chair may prohibit that party from raising the issue later at the hearing.
In this way, the timing of the CMCC may have significant implications for unrepresented parties. At approximately 30 days before a hearing, the CMCC will take place after the deadline for parties to exchange witness statements and hearing documents. Therefore, under the new system, requests for extensions to file witness statements and hearing documents will only be granted in “exceptional circumstances.”
This is a marked change in current procedure at the HRTO. Previously, the HRTO took a more contextual approach to requests for extensions to file witness statements and hearing documents. A review of a handful of recent HRTO decisions processes in accordance with the old system suggests that requests for extensions to file documents were often considered on a balance of fairness and expediency. For example, see Mobin v Clintwood Non-Profit Housing Co-operative, Deschenes v White Spruce Apartments, Skevington v Health Sciences North, and Mt Pleasant v Native Canadian Centre of Toronto.
Further, permitting these kinds of preliminary issues to be decided orally or with limited reasons may have the unintended consequence of reducing transparency and procedural fairness at the HRTO. Preliminary issues often raise interesting or novel legal arguments about procedure. For example, a novel legal issue may arise from a party’s request for further and better witness statements or from a party’s request for accommodation to participate in the hearing.
In the old system, the HRTO was in the practice of regularly addressing preliminary issues by way of unpublished Case Assessment Directions (“CAD”), instead of published, final Interim Decisions (“ID”). CADs are provided to parties directly, while IDs are available online and add to the body of HRTO jurisprudence.
While CADs carry the same weight as IDs, the failure to publish decisions on procedural or preliminary issues may create an access to justice barrier by decreasing transparency at the HRTO and creating barriers to appeal mechanisms. In a climate where unpublished CADs are already commonplace, a mechanism that permits preliminary, yet often significant, issues to be decided without written reasons may compound this negative impact on access to justice and procedural fairness.
Further, while the HRTO may not be formally bound by its own decisions, the failure to publish decisions on preliminary issues may have the effect of stunting the development of the jurisprudence by preventing parties from relying on previous preliminary decisions. As an administrative tribunal that purports to be progressive and reflexive to the changes in the common law and society, the failure to publish decisions on preliminary issues may have regressive outcomes.
Issues Not Appropriate for the CMCC
While certain preliminary issues are siphoned off to be dealt with by way of a CMCC, the HRTO expects other preliminary or procedural issues to be raised and addressed well prior to the CMCC by way of Request for Order (Form 10). For example, the HRTO has identified the following issues (among others) to be raised as soon as possible:
- Requests for additional disclosure,
- Requests to remove personal respondents,
- Requests to dismiss all or some of the application for delay or as having no reasonable prospect of success,
- Requests to defer pending the completion of another proceeding, and
- Requests for particulars or details of the allegations.
Particularly with respect to issues related to disclosure, the HRTO strongly discourages parties to wait until the CMCC to raise disclosure issues. If disclosure issues are raised at the CMCC, the Vice-Chair may consider the request to be delayed and will weigh that against ordering further production.
The benefit of this approach is that it forces parties to fine tune their position and arguments earlier on in the case and may prevent surprise issues from cropping up at the eve of the hearing. However, the notable downside is that different mechanisms for addressing different kinds of issues may be cumbersome and confusing for unrepresented parties. This is particularly so for unrepresented parties who are already at a disadvantage in the litigation process.
b) Discussing the Hearing Process
The CMCC also provides an opportunity for the Vice-Chair and the parties to discuss the technicalities of how the hearing will proceed. The HRTO recommends that parties be prepared to discuss topics such as the order in which the witnesses will testify, time limits for questioning witnesses, whether opening statements are required, marking of exhibits and the adoption of witness statements, and a clarification of issues to addressed at the hearing.
In this way, the CMCC has potential to ensure that parties are better prepared for the hearing and to ensure that hearing dates are used in an efficient and effective manner. However, for unrepresented parties, the CMCC may prove to be a barrier to access to justice because it may be challenging to turn their minds to these issues in the abstract.
c) Exploring Mediation/Adjudication
Finally, where appropriate, the CMCC provides an opportunity for parties to discuss whether they are open to participating in mediation/adjudication. With the parties consent, the Vice-Chair may conduct settlement discussions by way of phone or email prior to the hearing.
Because hearings will now only be scheduled for one day at a time, pre-hearing settlement discussions facilitated by the Vice-Chair in the weeks prior to the hearing may prove to be an efficient use of time. However, for unrepresented parties, this approach may be challenging to maneuver.
In the coming year, ARCH will be monitoring cases at the HTRO to assess the implications of the new system and whether it addresses the increased caseload at the HRTO in an efficient, transparent and fair manner. If you are an unrepresented applicant or an applicant-side lawyer or paralegal with questions about how to prepare for a CMCC, an ARCH lawyer may be able to provide basic legal information to assist you.