Contents


BC Human Rights Tribunal

Guide to Getting Ready for a Hearing

Please Note: The information in this guide is an overview of the hearing process under the Human Rights Code and to assist in preparing for a hearing. This guide is not intended as a substitute for the Human Rights Code or the tribunal’s Rules of Practice and Procedure. This guide is not legal advice. If you have legal questions, you should see a lawyer.

For further information, please see the section of this guide called “Where to Get More Help”.

The Purpose of a Hearing
Legal Representation
Confidentiality of Hearings
Preparing for a Hearing
What Happens at a Hearing
When to Expect a Decision
Where to Get More Help


The Purpose of a Hearing

If you are a party to a complaint before the BC Human Rights Tribunal (the tribunal), and your case has not settled, the tribunal will set dates for a hearing.

The hearing will:

  • give the complainant a chance to prove their complaint and the remedy they want
  • give the respondent a chance to defend themself against the complaint
  • allow the tribunal member to listen to both sides, to decide whether the complaint is justified and, if it is, to decide on an appropriate remedy

Legal Representation

Parties may have a lawyer or agent represent them at a hearing. If you don’t, you will represent yourself. The tribunal member who hears the complaint explains the hearing process, but cannot give legal advice or help you present your side of the complaint.


Confidentiality of Hearings

Hearings are usually open to the public. This means that the public can go to the hearing, listen to the witnesses and look at the documents provided to the tribunal as evidence.

This also means that you are welcome to attend other hearings to watch and learn about the hearing process in preparation for your hearing. You can phone the tribunal to find the location of current hearings, or look at the weekly hearing schedule posted on the tribunal’s website. (See contact information on page 14 of this guide.)

If a party asks, a tribunal member may decide to hear some evidence in private or to order that some documents be kept confidential. This will only happen if the tribunal member is convinced that the privacy interests are more important than conducting the hearing in public.


Preparing for a Hearing

The most important part of preparing for the hearing is planning what evidence you will need to prove your case.

What is evidence?

Evidence can be:

  • oral testimony: a witness answers questions in person, or over a speaker phone if the member agrees
  • documents: documents, such as pay stubs or letters, are given to the tribunal member by a witness and are marked as an exhibit at the hearing
  • things: sometimes witnesses give the tribunal member other things such as photographs – just about anything that helps prove your case – these things may also be marked as an exhibit at the hearing
  • affidavits or other statements: a witness’ evidence can be given to the tribunal in writing - this can be a statement such as a letter, or a statement made under oath or solemn affirmation called an affidavit
  • expert evidence: evidence from an expert that may be oral testimony, an affidavit, or a written report

What evidence will the tribunal accept?

The tribunal can accept almost any evidence that is relevant, which means that it relates to the complaint or to the response to the complaint.

Whether you are a complainant or a respondent, there are several steps that you should follow to prepare your case for hearing. You should:

  1. Make an outline
  2. Prepare your story
  3. Make a list of your witnesses
  4. Prepare your witnesses
  5. Summons your witnesses, if necessary
  6. Prepare your documents
  7. Decide if you need expert evidence
  8. Write out an opening statement
  9. Do legal research, if necessary

(a)  Make an outline

The best way to plan what evidence you need is to make an outline.

Start by reading:

  • the Complaint Form
  • the Response to Complaint Form
  • the complainant’s details of the remedy they want
  • the respondent’s response to the complainant’s remedy

If you are a complainant:

There are two parts to your case:

  1. You must prove that the respondent violated the Human Rights Code (the Code);
  2. You must prove what happened to you as a result of the discrimination, so you can explain why the remedy you are asking for is appropriate.

List the facts you need to prove.

Did the respondent agree with any of the facts you need to prove?  Make a list of the facts the respondent agrees with.

Then make a list of the evidence you have to prove each fact.

Suppose your complaint says that the ABC Company fired you because you are pregnant, and you are asking for money for wages you lost and for injury to your dignity, feelings and self-respect.

You would prepare an outline like this:

FACT #1:        ABC company fired me because I was pregnant.

EVIDENCE:

  • I will say that on July 10, 2001, I told my manager I was pregnant.
  • ABC company agrees that they fired me on July 11, 2001.
  • My record of employment says “pregnant” as the reason I lost my job.
  • My co-worker Jana Stevens will say that my manager told her that he had safety concerns about me working while I was pregnant.

FACT #2:        I lost $5,000 wages because of the discrimination (and I tried to reduce my losses by looking for another job).

EVIDENCE:

  • My pay stubs show I earned $2,500 per month at my old job.
  • I tried to find other work - I have photocopies of all the applications for work I sent, and notes of all the places I called looking for work. It took me two months to find a new job.

FACT #3:        I suffered injury to my dignity, feelings and self-respect.

EVIDENCE:

  • I will say that I was really upset that ABC company didn’t think I could do my job because I was pregnant.
  • My husband saw how upset I was.

If you are a respondent:

At the hearing, you will get to show the complainant’s version of what happened is not correct. List the parts of the complainant’s case that you want to challenge. Then list the evidence you have to prove it.

If you have a defence to the complaint, you will need to prove it at the hearing. List the facts you need to prove and the evidence you have to prove those facts.

Suppose you are responding to a complaint that you discriminated against an employee on the ground of disability. He says that you would not change a job duty (requiring that he type orders) after he was diagnosed with carpal tunnel syndrome. He says you fired him when he couldn’t do the job.

Suppose you have agreed that the complainant had carpal tunnel syndrome, but you say that he quit. You also say that you have a defence of “bona fide occupational requirement” for requiring him to type orders.

You would prepare an outline like this:

CHALLENGE to complainant’s case: I didn’t fire Peter. He quit.

EVIDENCE:

  • I will say that it is true that I said I couldn’t change Peter’s job duties. I was trying to talk to him about taking time off, and he got really angry. He shouted at me and left.
  • Gerry who works next door will say that he heard the argument.

DEFENCE: I have a “bona fide occupational requirement”.

FACTS:           I needed Peter to type the orders because, to run a delivery business efficiently, the orders need to be tracked on the computer system. I run a small company and there was no one else who could do the typing. I did everything I could reasonably do to help Peter keep his job.

EVIDENCE:

  • I only have one office employee, and typing is half the job. I think Peter would agree with this. Also, my sister, Susan, will say that she does the job when Peter is on holiday, and she agrees.
  • I will say that I suggested Peter take a leave until he could work again.
  • I will say that I couldn’t think of any other option that would work, and then Peter quit.

(b)  Prepare your story

You will probably be the main witness for your case. You should plan what you will say to tell your story.

Usually the best way to tell your story is to tell it in the order the events actually happened. Think about how you would explain the case to another person who doesn’t know you or the other people involved. Make a list of all the points you want to cover.

(c)  Make a list of your witnesses

You need to decide who you want to call as a witness. Review your outline. Who saw the event?  Are there people who can confirm your version of it? Are there people who wrote letters or notes that support your point of view?  These are the people who you should call as your witnesses.

Think of people who have personal knowledge of the facts you want the tribunal member to know. The evidence is more reliable and will help your case more than evidence from people who can only tell what they heard from someone else.

Suppose John heard the respondent say, “I won’t hire people over 50”, and that John told Sally what he heard. You want John, not Sally, as your witness.

(d)  Prepare your witnesses

At the hearing, you will need to ask your witness the questions you want them to answer to prove your case. This is called direct examination.

Think carefully about the questions you will ask your witnesses to get the evidence you need. Write the questions down.

Don’t ask questions that suggest the “right” answer. These are called “leading questions” and the other party can object. Instead, you should ask “open questions” that allow the witness to put their evidence in their own words.

Do not ask your witness, “Did you hear the complainant Sarah Chan tell me that she wouldn’t agree to any solutions I suggested to deal with her concerns?”  Instead, you can ask, “Did you hear Sarah Chan say anything to me on her last day of work?”   If the answer is “yes”, you can ask, “What did she say?”

Go over the questions you plan to ask your witness with them before the hearing. You can discuss the case with them, but do not tell your witness what to say.

Note: If you wish to have your witness testify by phone, tell the other parties and the tribunal. If the other parties disagree, the tribunal will decide whether or not to hear the evidence by speaker phone.

Note: Witnesses are asked to make a solemn promise to tell the truth. If your witness wants to swear an oath using a religious book, you must arrange to bring the book to the hearing. If you want to see a copy of the solemn promise in advance of the hearing, please contact the tribunal.

Review with your witnesses what happens at a hearing (beginning on page 9 of this guide).

(e)  How to require a witness to attend a hearing (see Information Sheet P9) on the Tribunal’s website.

Most of your witnesses probably will agree to come to the hearing to testify on your behalf voluntarily. However, if you think a witness might not come or if a witness prefers to be summonsed (for example, to show their employer to get time off work), you must deliver an Order to Attend Hearing to them.

Note: The tribunal can only summons a person who is in British Columbia.

You can get an Order to Attend Hearing by filling out and delivering a complete Form 8, Order to Attend, for each person you want to attend your hearing or a witness. Tell the tribunal:

The tribunal will process your Form 8, Order to Attend Hearing and return it back to you. You must “serve” the order on the witness. This means that you must hand the order directly to the witness or leave it at their home, or have another person serve the order on the witness.

The Code does not require you to pay witnesses to come and give evidence. Some collective agreements and employment policies say that an employee’s wages will be paid if they are summonsed to give evidence.

(f)  Prepare your documents

You need to decide what documents you want the tribunal member to consider. You should consider who is the best person to tell the tribunal member about the document.

The best person to tell the member about a letter is the person who wrote the letter or the person who received it. That person can identify the document by saying they wrote it, or signed it, or received it.

You must bring several copies of each document to the hearing:

  • one for the tribunal member
  • one for your witness to look at
  • one for each of the other parties
  • one for you

(g)  Decide if you need expert evidence

A party may want to have an expert witness give evidence.

You may want a doctor to testify about your physical disability.

The tribunal member may accept a witness as an expert if they have specialized knowledge because of their education or experience.

If you want to call an expert witness, you should tell the tribunal and the other parties at the pre-hearing conference, or as soon as possible. The tribunal’s Rules of Practice and Procedure set out specific time limits for when you must deliver either the summary of your expert’s evidence or the actual expert report. Contact the tribunal if you would like a copy of the rule about expert evidence.

(h)  Write out an opening statement

Before the evidence, the tribunal member gives the parties a chance to make an opening statement. In your opening statement, you should tell what witnesses you will call and what facts you plan to prove. You can use your outline to plan your opening statement.

An example of an opening statement by the complainant in the example on page 3 of this guide, might be:

Madam Chair, my human rights complaint is that the respondent, ABC Company violated section 13 of the Code when the boss fired me on July 11 because I was pregnant.

I will tell you about my employment with ABC Company, my talk with my boss about my pregnancy and my firing. I will also tell about my response to losing my job, the impact it had on me and my efforts to find another job.

I will be calling two witnesses; my co-worker Jana Stevens and my husband.

I will be putting in papers which will include my Record of Employment, my pay stubs and proof of my efforts to find work. I have already given all of my documents to the respondent.

I would like a remedy of wage loss in the amount of $5,000 and some money to make-up for injury to dignity and self-respect.

An example of an opening statement by the respondent in the example on page 4 of this guide might be: 

Mr. Chair, I did not fire the complainant, Peter Jefferson. I also have a good reason which is a bona fide occupational requirement defence for needing Mr. Jefferson to type the orders.

I will give evidence about the need to type the orders, about what happened when Mr. Jefferson told me he couldn’t type the orders, and about what happened the day that Mr. Jefferson quit.

I will call two witnesses, my sister Susan Ozaki, who did Mr. Jefferson’s job when he was on holiday, and Gerry MacDonald, who works next door to my delivery business.

My evidence will show that I did everything I could reasonably do for Peter to keep his job, but he got angry and quit before we could work anything out. I want the complaint to be dismissed.

(i)  Do legal research, if necessary

If you want to do legal research the following sources are recommended.

Human rights decisions and discussion of human rights law can be found in the Canadian Human Rights Reporter, and other books, available at court house libraries in Victoria, Vancouver, Prince George, Kamloops, Kelowna, Nanaimo, New Westminster, the Vancouver Public Library, and the University of BC and University of Victoria Law Libraries.

You can find copies of all B.C. human rights decisions at the Vancouver Courthouse Library and on the tribunal’s website.


What Happens at a Hearing

The hearing is held in a room that has tables set up in a “U” shape. The tribunal member usually sits at the head of the table with the complainant on one side and the respondent on the other side. You may call the tribunal member Mr. Chair or Madam Chair.

Usually there is one tribunal member, but in some cases, a panel of three members will hear the complaint.

The hearings take place at the tribunal offices in Vancouver for Greater Vancouver complaints. For complaints outside Vancouver, the hearings are usually held in the community where the complaint arose. The tribunal will send a notice that tells you the time, date and place of the hearing. Hearings usually start at 9:30 a.m. and finish at 4:30 p.m. with a morning and afternoon break, and a lunch hour. If you have a special request about the hours of hearing or the number of breaks, you should tell the other parties and the tribunal ahead of time.

The tribunal member will start by explaining the process to be followed. Usually, the process is as follows:

Introductions

The tribunal member will ask the parties to introduce themselves.

Preliminary matters

The tribunal member will deal with any preliminary matters that the parties raise.

A party might tell the member that one of their witnesses had a family emergency and would like to give their evidence by telephone instead of coming to the hearing in person.

Opening statements

The tribunal member will ask the parties to make their opening statements. The complainant goes first. The respondent may go next, or may want to wait until the complainant’s evidence is finished.

The evidence

The tribunal member will start by making the Complaint Form and the Response to Complaint Form the first exhibits (documents accepted as evidence) in the hearing.

The tribunal member will ask the complainant to start their case. The complainant will usually be the first witness and may call other witnesses. After each witness is finished, the respondent can cross-examine them.

When the complainant has finished their case, the tribunal member will ask the respondent to start their case. The respondent will usually be the first witness for their case and may call other witnesses.

If the respondent has raised something new in their case, the tribunal member may give the complainant a chance to respond or put in another relevant document (called rebuttal evidence).

Witnesses wait outside

Except for the complainant and respondent, witnesses wait outside the hearing room until they give their evidence.

Solemn promise

The tribunal member will ask the witness to sit in the witness chair and to solemnly promise to tell the truth.

If a witness wants to swear an oath using a religious book, the party calling the witness is responsible for bringing the religious book.

The witnesses’ evidence

If you are the witness, you must sit in the witness chair and solemnly promise to tell the truth. If you have a lawyer or advocate, they ask the questions. If you are unrepresented, you give evidence by telling the tribunal member your story. If you call a witness, they give evidence by answering your questions. This is the direct examination.

Documents

When you are the witness, you must give the tribunal member the documents that are relevant to your case.

If you decided that another witness is the best person to tell the tribunal member about a document, you will hand out the document (to the tribunal member, the witness and the other parties) when the witness is giving their evidence. You ask the witness to identify the document and then ask your questions about it.

Keep a list of the documents (or other things) that the tribunal member accepts as evidence. This is because the member or parties may refer to them by the exhibit number.

Cross-examination

After a witness tells their story, the tribunal member will ask them to answer questions asked by the opposing party or their lawyer or agent. This is called cross-examination. Leading questions that suggest the right answer are allowed in cross-examination.

Question: “You couldn’t actually hear what Mr. Singh said because of the noise from the factory, correct?”

Reply

The tribunal member will ask if you have more questions about new matters raised in cross-examination. These questions are called the reply. If you are the witness, you can make a few more comments.

Tribunal member’s questions

The tribunal member may also ask the witness some questions to make sure they understood the evidence. Then, the parties will be given a chance to ask any questions that are connected to the tribunal member’s questions.

Objections

If a party believes that the tribunal should not accept certain evidence, they can object. You can tell the tribunal member you object to certain evidence by interrupting the proceedings by saying, “I object”. The tribunal member will ask you why you object. The most common reason is that the information does not relate (is not relevant) to the case.

After you have had a chance to say why the information should not be allowed, the other party will be asked to explain why the information should be accepted. You will be given a chance to respond to what the other party has said.

After listening to what the parties have to say, the tribunal member will “rule” on the objection – that is – decide whether to accept or keep out the evidence.

What if a witness doesn’t come to the hearing?

If a witness does not come to the hearing, you will need to prove that you served an Order to Attend Hearing on the witness before the tribunal can take any steps to deal with it. If you served the witness you tell the date and place that you gave the witness the order. If you do not know the witness personally, you must be able to say how you identified them. (For example, you looked at their driver’s licence.)  If someone else served the witness, the usual practice is for that person to provide “an affidavit of service”.

Closing argument

After all the witnesses are finished, the tribunal member will ask the parties to make a closing argument.

A closing argument briefly summarizes the evidence that the tribunal member has heard at the hearing that supports your case. It can refer to other human rights cases, which are similar to your case and support your point of view.

A closing argument can be written out and read to the tribunal member or can be handed-in.

If you are representing yourself at a hearing, the tribunal member will understand that you can’t be expected to present a legal argument that would be presented by a lawyer. The tribunal member will consider the law relevant to your case whether or not you specifically refer to it. If you want to refer to an earlier decision of the tribunal, another human rights tribunal decision or a court decision, you should have a copy of the decision to give to the other parties and the tribunal member.

Some decisions do not need to be photocopied and given to the tribunal member. You can contact the tribunal for that list of decisions.

If you are a complainant, you should tell the tribunal member why you think there has been a violation of the Code and how you think your evidence supports your case. You should finish by telling what remedy you think is appropriate for you.

If you are a respondent, you should tell the tribunal member why you think the complainant has not proved a violation of the Code and/or that you have proven a defence to the complaint of discrimination. You should finish by stating your position on the complainant’s request for a remedy.

Both parties may need to say why the tribunal member should believe their witnesses and why the other party’s witnesses should not be believed.


When to Expect a Decision

After the closing arguments, the tribunal member may give an oral decision or may adjourn to write a decision.

The tribunal member will dismiss the complaint if it is not justified. If the tribunal member finds that the complaint is justified, they will order a remedy for the complainant.

The tribunal gives the parties a copy of the decision before the decision is made public.

Depending on how complicated the case is, parties should be prepared to wait several months for written decisions.

Tribunal decisions are published on the tribunal’s website and are often reported by legal reporters, such as CanLII, QuickLaw and the Canadian Human Rights Reporter, including on their websites.


Where to Get More Help

If you need help or legal advice, you should contact a lawyer or human rights advocate. Assistance may be available at:

BC Human Rights Clinic operated by Community Legal Assistance Society
300-1140 West Pender St.
Vancouver, BC V6E 4G1
Phone: (604) 622-1100
Fax: (604) 685-7611
Toll free: 1-855-685-6222
Email: inforbchrc@clasbc.net
www.bchrc.net
The Law Centre
Suite 225-850 Burdett Ave.
Victoria, BC V8W 0C7
Phone: (250) 385-1221
Fax: (250) 385-1226
www.thelawcentre.ca

UBC Law Students’ Legal Advice Program
Room 129 Allard Hall
1822 East Mall
University of British Columbia
Vancouver, BC V6T 1Z1
Phone: (604) 822-5791
Fax (604) 822-1661
www.lslap.bc.ca

Access Probono
Phone: (604) 878-7400
Toll free: 1-877-762-6664
www.accessjustice.ca

You can also find legal information about human rights on the following websites:

BC Human Rights Tribunal
BC Human Rights Clinic
BC Government
Canadian Human Rights Reporter

This guide is one in a series of guides available from the tribunal or at a BC Service Centre. The titles are:

BC Human Rights Code and Tribunal
The Settlement Meeting
Getting Ready for a Hearing
Guide for Self-Represented People

The tribunal also has a series of information sheets available from the tribunal or on our website.

BC Human Rights Tribunal
1170-605 Robson Street
Vancouver, BC V6B 5J3
Phone: (604) 775-2000
Fax: (604) 775-2020
TTY: (604) 775-2021
Toll free: 1-888-440-8844
www.bchrt.bc.ca