Guide to a Human Rights Hearing
This document will provide you with general information on what to expect if your complaint goes to a public hearing.
What is a human rights hearing?
A human rights hearing or adjudication hearing is a legal process similar to a court hearing. An adjudicator, who is like a judge, considers evidence and argument so he or she can decide if a complaint is proven. The hearing is public. The parties present their evidence to the adjudicator through witnesses and documents. There is also an opportunity to cross-examine each witness and for parties to make opening and closing statements, and a legal argument.
What is the purpose of the hearing?
The adjudicator will make a decision about whether or not the Complainant was discriminated against as set out in the complaint. If the Complainant was discriminated against, the adjudicator will order the Respondent to do certain things to address the discrimination, which usually includes compensating the Complainant.
Do all complaints go to a hearing?
No. The Board of Commissioners makes a decision about whether there is enough evidence of discrimination to warrant an adjudication hearing. The Board makes this decision based on its review of the complaint, the reply, the investigation report and any responses to the report. If the Board determines that there is enough evidence of discrimination and the complaint cannot be resolved through mediation, it will request that an adjudicator be appointed to make a decision about the complaint.
How is the adjudicator selected?
The Chief Adjudicator will designate an adjudicator to the complaint when requested to do so by the Commission. It will select an adjudicator from a list of adjudicators appointed by the Minister of Justice to conduct human rights hearings in this province. Adjudicators are independent and are not Commission staff or on the Board of Commissioners. The adjudicator is usually a lawyer practicing in Winnipeg.
How long will the hearing take?
The Commission makes an effort to keep the process as straight forward as possible. The adjudicator will set the number of hearing days based on the number of witnesses, documents and the complexity of the complaint. Most hearings are between 3 and 5 days.
How do I know when the hearing will be?
The Commission will usually request a pre-hearing teleconference or meeting for all parties to schedule the hearing dates and address how to prepare for the hearing. The Commission will usually request that the adjudicator provide deadlines for the parties to exchange evidence, witness lists and to request that subpoenas be issued to require a witness to attend the hearing to give evidence. The adjudicator will send all parties a notice of the hearing, indicating the date, time and location of the hearing. A notice is also published a few days before the hearing in the local newspaper and on the Commission’s website.
Will my name be identified?
The names of the parties are part of the public notice unless a special request is made to the adjudicator to have names removed. The adjudicator considers the reasons for the request and decides whether or not to remove the name of some or all of the parties prior to the notice being published.
Who participates in the hearing?
The Complainant, the Respondent and the Commission are each independent parties to the adjudication. The Commission’s lawyer works with the Complainant to present the evidence in support of the complaint to the adjudicator. The Complainant may wish to add other evidence or witnesses. The Respondent presents evidence to show that it did not discriminate or that what it did was reasonable. A court reporter is often present to record the proceedings. Anyone may attend the hearing, including the public and the media. The adjudicator will determine the use of cameras and recording devices. Audio/visual equipment is not ordinarily permitted during the hearing. The adjudicator may also prohibit publication or broadcast of the parties’ identity until a final written decision is released.
Do I need a lawyer?
No. You may be represented by a lawyer or other advocate or you may represent yourself. The adjudicator will always make an effort to explain the process in terms understandable to non-lawyers.
What information does the adjudicator have before the hearing starts?
The adjudicator is provided with a copy of the complaint and the reply if one had been sent to the Commission. The adjudicator does not receive a copy of the Commission’s Investigation Assessment Report. By agreement, the parties may choose to give the adjudicator an Agreed Statement of Facts or an Agreed Book of Documents for the adjudicator to review before the hearing starts.
Can I contact the adjudicator?
As a party to the proceedings, you are entitled to contact the adjudicator; however as a courtesy, your communications should be copied to the other parties as well.
Can an individual be forced to attend as a witness?
Yes. If an individual does not wish to attend as a witness voluntarily, you can request the adjudicator issue a subpoena that will require the person to attend and give evidence under oath.
What if I want to resolve the complaint without going to a hearing?
The parties can enter into a settlement agreement at any time. The Commission’s lawyer will usually try and see if the parties are interested in resolving the issues without a hearing at some point before the hearing. These are called a “without prejudice” settlement discussions because they will not affect either parties’ position if the hearing does take place. If the parties reach a settlement, an agreement and release is signed and the adjudicator is informed that a hearing will not be necessary.
How long will it take to get the decision?
After the hearing, the adjudicator will deliver a written decision. The adjudicator should issue the decision within 60 days of the conclusion of the hearing, and if the adjudicator cannot, he or she must advise the Chief Adjudicator as to why not. The decision is made by the adjudicator, not the Commission.
The adjudicator determines if there has been a violation of The Human Rights Code and if so, may order that the Respondent do one or more of the following:
- Stop the discriminatory action or behaviour
- Compensate the party discriminated against for any financial loss, expenses incurred or benefits lost because of the discrimination
- Compensate the party for injury to their dignity, feelings or self-respect
- Pay the party exemplary damages, if the adjudicator considers this appropriate, for any malice or recklessness involved
- Adopt or implement a policy or program designed to prevent further discrimination
The adjudicator’s written decision is sent to all parties. The Commission will usually issue a news release and must make the decision available to the media and the public. The news release and decision will be on the Commission’s website.
Is there an appeal process?
You can apply to the Court of Queen’s Bench for a review of the decision based only on the following reasons:
- The adjudicator committed an error of jurisdiction
- The legal process was not fair
- There was an error in law