On November 20, 2020, Tribunals Ontario, which includes the Human Rights Tribunal of Ontario (HRTO), provided new direction setting out the format of hearings and how a party can request a different hearing format.
The Three Types of Hearing Formats at HRTO
1. A written hearing is where the HRTO makes a decision based upon the written materials filed by the parties;
2. An electronic hearing is held by telephone or videoconference technology that allows the parties to hear and/or see each other; and
3. An in-person hearing is where the parties attend before the HRTO in person.
Only Two Types of Hearings the HRTO Currently Allows
Tribunals Ontario’s has directed all HRTO matters to proceed as:
1. Written hearings
2. Electronic hearings
There are just two exceptions…
The Two Exceptions
An in-person hearing may be provided:
1. If a party can establish that an in-person hearing is required as an accommodation for an Ontario Human Rights Code (Code) related need.
2. Where a party can establish that the hearing format will result in an unfair hearing.
How to Request A Format Change
Parties may request that their hearing format be changed on the basis that the hearing format or combination of hearing formats specified by the HRTO will result in an unfair hearing. A request to change the hearing format must be made under the HRTO’s Rules of Procedure. Parties, representatives, witnesses and other HRTO participants are entitled to accommodation of Code-related needs and may request a different hearing format as an accommodation by contacting the HRTO.
If a Requested Change is for Non-Accommodation Reasons
A party can request a different hearing format for non-accommodation reasons by contacting the HRTO. The request is expected to be made by a party as soon as possible after being notified of the hearing format and must be done in accordance with the HRTO’s Rules of Procedure. The party requesting the hearing format change must establish that the specified hearing format ought to be changed. For example, to change a written hearing, the party requesting a format change will need to establish, at a minimum, that there is a good reason not to hold a written hearing. To change an electronic hearing, the party requesting the format change will need to establish, at a minimum, that the hearing format will likely cause them significant prejudice.
The HRTO’s Considerations for Accommodations
The HRTO will consider the parties' arguments and decide whether the hearing format specified by the HRTO ought to be changed. This involves balancing various interests and rights, including the parties' right to a fair hearing as well as the public interest in having matters heard expeditiously. It is important to note that every request to change a hearing format will be decided based upon the specific circumstances of the case.
Factors for the HRTO’s Case-by-Case Considerations
The practice direction also sets out some of the factors the HRTO will consider when deciding a request to change the hearing format including, but not limited to:
1. Whether fairness requires the hearing format to change
- The HRTO has an obligation to ensure fair hearings. What constitutes a fair hearing is a flexible and variable concept that depends on the particular circumstances of the case;
- There is a growing acceptance in Ontario that electronic and written hearings are necessary for fairly facilitating access to justice;
- There is no inherent unfairness to the videoconference process;
- A video, telephone or written hearing may be appropriate depending on the circumstances of the proceeding;
- In-person or video hearings are not required to ensure fairness simply because a matter involves witnesses and their credibility; and
- While a party may prefer an in-person hearing, it is not necessarily in the interests of justice to have one. It is not in the interests of justice to adjourn matters indefinitely if they can be dealt with fairly via written or electronic hearings. Other matters that require an in-person hearing may be adversely impacted by matters that are unnecessarily adjourned.
2. Whether a party will be prejudiced by the current hearing format, or would be prejudiced if the hearing format were to change
- The HRTO considers whether the specified hearing format causes prejudice to the parties and also whether changing the format would cause prejudice to the parties; and
- A party's unfamiliarity with a new technology (for example, videoconferencing technology such as Microsoft Teams) is not enough of a consideration on it’s own to make an in-person hearing necessary.
3. The complexity of the matter
- The HRTO may consider the following factors when deciding the appropriate hearing format:
- The number of parties; and
- The nature and volume of the proposed evidence.
4. The length of delay that will result if the matter waits for an in-person hearing
- It is important for the HRTO to continue providing access to adjudication during the COVID-19 pandemic; and
- It may be in the interests of justice to have a matter heard through a written or electronic hearing if it has already been significantly delayed.
5. Any factor that may be relevant to the legislation under which the matter arose; and
6. Any other factor that is relevant to the appropriate hearing format.
Cases Relating to HRTO Hearing Format
To date there have been very few HRTO decisions about disputes over the appropriate HRTO hearing format. One HRTO case you may wish to review is here: Kozak v. Lakeridge Health, 2020 HRTO 782 (CanLII).
The HRTO decided that the hearing would be conducted by videoconference despite the respondent’s arguments that an in person hearing was necessary because the matter was factually complex; there are many volumes of materials and hundreds of pages of documents; many of the respondent’s witnesses, and some of the physicians to be called by the applicant, were essential health care workers managing the COVID 19 pandemic; and there were potential issues with the technology and hardware.
You can find the complete version of the new practice direction here.