C-12, r. 4 - Rules of procedure and practice of the Human Rights Tribunal

Full text
chapter C-12, r. 4
Rules of procedure and practice of the Human Rights Tribunal
CHARTER OF HUMAN RIGHTS — TRIBUNAL — RULES OF PRACTICE
Charter of human rights and freedoms
(chapter C-12, s. 110)
C-12
January 1 2016
Replaced, Decision 2015-12-17, 2016 G.O. 2, 73; eff. 2016-01-01; see chapter C-12, r. 6.
CHAPTER I
GENERAL
1. These Rules of procedure and practice are made pursuant to section 110 of the Charter of human rights and freedoms (chapter C-12). The purpose of these Rules is to simplify, facilitate and expedite application proceedings before the Tribunal. These Rules must be construed and applied in a manner that will ensure efficient case management and expeditious processing of matters. They complete the rules of procedure and proof set out in the Charter, to which it is appropriate to refer.
Except as provided in the Charter or this Regulation, the Code of Civil Procedure (chapter C-25), with the necessary modifications, applies to proceedings brought before the Tribunal.
Decision 2007-05-18, s. 1.
2. These Rules are intended to set out the law and ensure it is carried out.
In a reasoned decision, the president or the judge may derogate from the Rules where the interests of justice so require.
Decision 2007-05-18, s. 2.
3. In these Rules, unless the context indicates otherwise,
Charter” means the Charter of human rights and freedoms (chapter C-12); (Charte)
clerk of the Court of Québec” means a public servant of the Ministère de la Justice working in the office of a court and appointed for that purpose according to law, or any other person appointed to act in that capacity at the court to which the provision is applicable; (greffier de la Cour du Québec)
clerk of the Tribunal” means the deputy clerk of the Court of Québec appointed by order of the Minister of Justice to perform for the Tribunal, in addition to other duties and functions of deputy clerk, the duties and functions of the clerk of the Court of Québec; (greffier du Tribunal)
Commission” means the Commission des droits de la personne et des droits de la jeunesse; (Commission)
judge” means a judge of the Court of Québec designated as a member of the Tribunal; (juge)
office of the Court of Québec” means the office of the Court of Québec in which the application is filed; (greffe de la Cour du Québec)
office of the Tribunal” means the office of the Human Rights Tribunal; (greffe du Tribunal)
party” means the Commission, the victim, the group of victims, the complainant before the Commission, any person or organization on whom or which an application is served and the person on whom an affirmative action program has been or may be imposed; (partie)
president” means the judge appointed as president of the Tribunal by the Government; (président)
Tribunal” means the Human Rights Tribunal. (Tribunal)
Decision 2007-05-18, s. 3.
CHAPTER II
OFFICE AND CLERK OF THE TRIBUNAL AND THE COURT OF QUÉBEC
DIVISION I
OFFICE AND CLERK OF THE TRIBUNAL
4. The office of the Tribunal is open on juridical days from Monday to Friday, between 8:30 a.m. and 4:30 p.m.
Decision 2007-05-18, s. 4.
5. The clerk of the Tribunal prepares the roll in accordance with the procedure set forth by the president.
Decision 2007-05-18, s. 5.
6. The clerk of the Tribunal verifies that the records are complete and, if they are not, asks the parties to complete them.
Decision 2007-05-18, s. 6.
DIVISION II
OFFICE AND CLERK OF THE COURT OF QUÉBEC
7. The clerk and staff of the Court of Québec of the district in which an application is filed, or in which the Tribunal, or a division or member of the Tribunal sits, shall provide the latter with the services they usually provide to the Court of Québec.
Bailiffs are by virtue of their office bailiffs of the Tribunal and may make returns of service to the Tribunal under their oath of office.
Decision 2007-05-18, s. 7.
8. The registers, records, indexes and other files required for the purposes of the Charter are maintained in the office of the Court of Québec in accordance with the president’s directives.
Decision 2007-05-18, s. 8.
9. The clerk of the Court of Québec receives and records proceedings and exhibits that on their face comply with the requirements of the law, these Rules and the president’s directives.
Decision 2007-05-18, s. 9.
10. The clerk of the Court of Québec maintains, among other records, a plumitif setting out:
(1)  the record number of each case;
(2)  the names of the parties;
(3)  the nature of the application;
(4)  a description and the date of receipt of each proceeding, exhibit or document filed at the office of the Court of Québec;
(5)  the date and nature of all incidental decisions;
(6)  the date of the hearing;
(7)  the date on which the matter was taken under advisement;
(8)  an indication of the manner in which the record was permanently closed, the date on which the record was closed and on which a certified copy of the decision was sent to the Superior Court, if applicable;
(9)  the date of filing of a motion for leave to appeal, and on granting of leave to appeal, the case number of the appeal;
(10)  the dates on which the record was transcribed and forwarded to the office of the Court of Appeal;
(11)  the date on which the record was returned from the office of the Court of Appeal; and
(12)  the date and conclusions of the judgment of the Court of Appeal.
Decision 2007-05-18, s. 10.
11. The clerk of the Court of Québec immediately informs the clerk of the Tribunal of all proceedings that have been filed and forwards them to the clerk forthwith, by messenger or any other method of delivery using information technology.
Decision 2007-05-18, s. 11.
12. The court clerk draws up minutes of the hearing and numbers and enters all exhibits filed and enters all decisions of the Tribunal. The court clerk writes down dictated admissions and makes a note of admissions that are made for the purposes of the recording of proceedings.
Decision 2007-05-18, s. 12.
13. The clerk of the Court of Québec taxes witnesses at the request of the Tribunal, the parties or the witnesses themselves.
Decision 2007-05-18, s. 13.
14. The clerk of the Court of Québec taxes bills of costs.
Decision 2007-05-18, s. 14.
15. Any person may have access to court records, registers and other files of the Tribunal at the office of the Court of Québec during court office hours.
Court records or exhibits may be consulted only in the presence of the clerk of the Court of Québec or a person designated by the clerk. Otherwise, a written acknowledgement of the consultation is obtained and remains in the file.
Decision 2007-05-18, s. 15.
CHAPTER III
PROCEEDINGS
DIVISION I
PROCEEDINGS AND EXHIBITS
16. Applications, other proceedings and exhibits are filed at the office of the Court of Québec.
Decision 2007-05-18, s. 16.
17. The application shall include the name, domicile of the Commission or the complainant, as applicable, and of the other parties. The application shall include the date of filing of the complaint with the Commission, the act complained of, the grounds and the conclusions sought.
Decision 2007-05-18, s. 17.
18. Where the Commission notifies a complainant of its decision not to apply to the Tribunal for the benefit of the complainant, the complainant has 90 days from the date of receipt of the notification to file an application with the Tribunal. The complainant must attach to the application a copy of the notification received from the Commission and state the date on which the complainant received it.
The clerk of the Court of Québec must verify that the complainant’s application is accompanied by the notification received from the Commission.
Failure by the complainant to comply with this requirement may result in the dismissal of the application if the complainant does not remedy the non-compliance within 30 days after the filing.
Decision 2007-05-18, s. 18.
19. Where the Commission ceases to act in favour of a complainant after applying to the Tribunal for the benefit of the complainant, the Tribunal is substituted by operation of law for the Commission following the notification by the Commission of its decision to cease to act to the complainant, the clerk of the Tribunal and the clerk of the Court of Québec.
Decision 2007-05-18, s. 19.
20. Within 15 days after the filing of an application other than a preliminary or incidental application or an application under sections 81 and 82 of the Charter, the Commission or the complainant, as applicable, must file at the office of the Court of Québec a brief setting out the allegations, including:
(1)  the facts and exhibits to be adduced;
(2)  the questions of law at issue;
(3)  the conclusions sought;
(4)  the list of the expert evidence to be produced;
(5)  the legislation, case law and authorities intended to be relied on; and
(6)  the number of witnesses and the estimated amount of time required for the hearing.
Decision 2007-05-18, s. 20.
21. If the Commission or the complainant fails to file the brief within that time, the president or the judge may direct the Commission or the complainant, as applicable, to appear and show cause why the application should not be dismissed. Notice of the summons is given to the parties.
Decision 2007-05-18, s. 21.
22. Within 30 days after service of the Commission’s or complainant’s brief, the other parties may also file a brief, which shall contain the particulars required by section 20.
Decision 2007-05-18, s. 22.
23. The time limits in sections 20 and 22 may not be extended except for a serious reason and only if the president or the judge considers that an extension is required in the interests of justice.
Decision 2007-05-18, s. 23.
24. Unless expressly provided otherwise, any application during the course of proceedings is made by motion supported by an affidavit attesting the truth of all facts alleged for which proof has not already been provided in the record. The motion may be contested orally.
An application made during the course of proceedings may be submitted orally.
Decision 2007-05-18, s. 24.
25. The redress sought by a motion shall be set out in the form of a conclusion.
Decision 2007-05-18, s. 25.
26. All proceedings must be legibly written on one side only of a sheet measuring 21.25 cm by 28 cm (8.5 in. x 11 in.); the backing must indicate the nature and object of the proceeding, the amount at issue, as applicable the number of the record, the names of the parties, and the name, address, postal code, telephone and fax number of the filing party’s attorney or of the party if the party is not represented, and the computer code of the filing party’s attorney.
The parties and their attorneys, if any, must immediately notify the clerk of the Tribunal, the clerk of the Court of Québec and the other parties of any change in their contact particulars.
Decision 2007-05-18, s. 26.
27. All written proceedings must be signed by the party’s attorney. If the party is not represented by an attorney, the proceeding must be signed by the party or by its duly authorized representative if it is a legal person.
Decision 2007-05-18, s. 27.
28. The allegations contained in a written proceeding shall be stated in separate, consecutively numbered paragraphs.
Decision 2007-05-18, s. 28.
29. References to a statute or a regulation in proceedings must cite the title and reference and the provision referred to.
Decision 2007-05-18, s. 29.
30. Documents cited in support of written proceedings must be filed at the office of the Court of Québec, together with a list of the documents, not later than 15 days before the scheduled hearing date.
A party that fails to comply with this requirement may, on application, be precluded from citing that document.
Decision 2007-05-18, s. 30.
31. A list of exhibits must list the exhibits that accompany it and bear the number of the application, the names of the parties and the date, nature and number of each exhibit.
Decision 2007-05-18, s. 31.
32. Each exhibit number must be preceded by an identifying letter specific to each party.
Decision 2007-05-18, s. 32.
33. The record number and exhibit number must appear on the front of each exhibit and on the back, if any.
Decision 2007-05-18, s. 33.
34. The clerk of the Court of Québec numbers each proceeding received and records on it the date and time of receipt.
Decision 2007-05-18, s. 34.
35. When a file is forwarded to the Tribunal or the judge, a current plumitif is included in the file.
Decision 2007-05-18, s. 35.
36. A party that refers in a written proceeding to an exhibit or document in the possession of another party may ask the president or the judge to order the production of the exhibit or document at the hearing.
Decision 2007-05-18, s. 36.
37. Every written proceeding and exhibit must be filed in 5 copies (including the original) and an additional copy for each party to the proceedings must also be filed.
Decision 2007-05-18, s. 37.
38. A party that cites a judgment or doctrine must indicate the relevant pages and paragraphs and mark the passages cited with a vertical stroke in the margin.
Decision 2007-05-18, s. 38.
39. A party that cites regulatory or legislative provisions other than those of the Charter, the Civil Code or the Code of Civil Procedure (chapter C-25) must provide the number of copies required by section 37.
Decision 2007-05-18, s. 39.
40. Where a change is made to a written proceeding, all additions or substitutions must be underlined or indicated in the margin with a vertical stroke and all deletions must be indicated with a dotted line between brackets.
Decision 2007-05-18, s. 40.
41. Where particulars have been ordered for a written proceeding, a new proceeding incorporating the particulars must be filed in the record within the required time limit.
Decision 2007-05-18, s. 41.
DIVISION II
SERVICE AND NOTIFICATION
42. Service and notification are made in accordance with the rules provided in the Code of Civil Procedure (chapter C-25). Authorizations required by the Code may be obtained from the judge or the clerk of the Tribunal.
Decision 2007-05-18, s. 42.
43. Subject to the provisions of the Charter and these Rules, the clerk of the Tribunal serves or notifies the filed briefs to the parties.
Decision 2007-05-18, s. 43.
44. Subject to the provisions of the Charter and these Rules, proceedings, notices and other documents may be notified to the parties or the clerk of the Tribunal, as applicable, by any method of delivery using information technology.
Proof of the notification must be filed in the record.
Decision 2007-05-18, s. 44.
DIVISION III
EXAMINATIONS ON DISCOVERY AND EXPERT TESTIMONY
45. The president or the judge may authorize an examination on discovery, an examination on affidavit or the out-of-court examination of a witness by any method of communication using information technology to the extent that the method is reliable and proportionate to the circumstances of the matter, taking into account available facilities.
Decision 2007-05-18, s. 45.
46. If a party or a party’s attorney wishes to refer to an expert’s report, it must be filed in the office of the Court of Québec with a notice and copy served on the other parties not less than 60 days before the scheduled hearing date.
Except with leave of the president or the judge, no expert witness may be heard unless the expert’s report has been filed as provided in the preceding paragraph.
Decision 2007-05-18, s. 46.
47. At any stage of the proceeding, the parties may submit a request to the president or the judge to appoint a joint expert.
Decision 2007-05-18, s. 47.
48. At any stage of the proceeding, the president or the judge may, on his or her own initiative, order experts who have prepared opposing reports to meet, in the presence of the parties and attorneys who wish to attend, for the purpose of reconciling their opinions or identifying opposing positions. Within the specified time, they must report to the parties and file the results of their meeting in the record.
Decision 2007-05-18, s. 48.
49. In every proceeding, medical records and the expert report prepared by a physician, psychologist or social worker that has been filed in the record must be kept in a sealed envelope to which no one excluding the parties and their attorneys may have access without leave of the president or the judge. Access to the documents includes the right to make copies at their expense.
Decision 2007-05-18, s. 49.
DIVISION IV
SUMMONING WITNESSES
50. A party that wishes a witness to testify may summon him by means of a subpoena issued by a judge of the Court of Québec, a clerk of the Court of Québec or an advocate in the district in which the case is to be heard or any other district. The subpoena shall be served at least 10 clear days before the appearance.
In urgent cases, the judge or clerk of the Court of Québec may, by special order endorsed on the subpoena, shorten the service time. However, it may not be less that 24 hours before the time fixed for attendance.
Decision 2007-05-18, s. 50.
DIVISION V
CONDUCT OF PROCEEDINGS
§ 5.1.  — Case management
51. The Tribunal sees to the orderly progression of proceedings and intervenes to ensure proper management of the case. The Tribunal ensures that proceedings and time limitations are proportionate, taking into consideration the nature and complexity of the matter, with the purpose that the application be heard expeditiously.
Decision 2007-05-18, s. 51.
52. When required by the nature or complexity of the proceeding, the president may, on his or her initiative or on request, order special case management. In such a case, the president or the judge designated by the president sees to the orderly conduct of the proceeding.
Decision 2007-05-18, s. 52.
§ 5.2.  — Pre-hearing conference
53. The president identifies the applications that require a pre-hearing conference. In this regard, the president or the judge designated by the president sees to the orderly conduct of the conference.
Decision 2007-05-18, s. 53.
54. The judge designated to conduct the conference may, with the consent of the attorneys or the parties, hold the conference by any means of communication based on information technology.
Decision 2007-05-18, s. 54.
55. If the president or designated judge will also be presiding over the hearing on the merits, the president or the judge may be assisted by 2 assessors.
Decision 2007-05-18, s. 55.
56. The purposes of a pre-hearing conference include the following:
(1)  to define the issues to be argued at the hearing;
(2)  to assess the advisability of amendments to the written proceedings in order to clarify them or add more details;
(3)  to promote the exchange between the parties of documents to be produced at the hearing;
(4)  to plan the conduct of proceedings and proof at the hearing;
(5)  to examine the possibility of making admissions of facts or proof of facts by affidavit;
(6)  to examine any other issue that may simplify and expedite proceedings; and
(7)  to examine the possibility of an out-of-court settlement.
Decision 2007-05-18, s. 56.
57. When the parties and their attorneys, if any, are directed to attend a pre-hearing conference, they must forward in advance to the office of the Tribunal and the other parties a brief setting out:
(1)  a summary of the facts that have been admitted or that are to be proved; and
(2)  the questions of law at issue with a reference to the relevant provisions of law and a reference to the principal authorities that they intend to cite.
Decision 2007-05-18, s. 57.
58. The president or designated judge has the matters on which the parties have reached agreement and as well as the instructions given by the president or designated judge recorded in the minutes of the pre-hearing conference. A copy of the minutes is sent to the parties and their attorneys, if any. The minutes are filed in the record and serve as an admission of facts.
Decision 2007-05-18, s. 58.
§ 5.3.  — Settlement conference
59. At any stage of the proceeding, the president or the judge designated by the president may, at the request of the parties, conduct a settlement conference. In their request, the parties must present a summary of questions at issue.
The president or the designated judge may also, on his or her own initiative, recommend the holding of a settlement conference to the parties. If they agree, the president or designated judge sees to the orderly conduct of the conference.
Decision 2007-05-18, s. 59.
§ 5.4.  — Peremption of proceedings
60. If more than 6 months have elapsed since the last relevant written proceeding, the president or the judge designated by the president may advise the parties of his or her intention to consider the proceeding lapsed and close the record in 60 days.
The Commission or the complainant, as applicable, may prevent peremption of the proceeding by sending a notice to that effect to the office of the Tribunal and the office of the Court of Québec, with a copy to the other parties. The notice must specify the reasons why the proceeding should not be considered lapsed.
The president or the designated judge considers the reasons set out against peremption and makes the decision he or she considers appropriate in the circumstances. A copy of the decision is notified to the parties by the clerk of the Tribunal.
Decision 2007-05-18, s. 60.
CHAPTER IV
HEARING
DIVISION I
SCHEDULING AND NOTICE OF HEARING
61. At the expiry of the time limit set out in section 22 of these Rules, the president or the judge designated by the president schedules the hearing date after consulting with the parties.
Decision 2007-05-18, s. 61.
62. Notice of the hearing date is notified by the clerk of the Tribunal to the parties and their attorneys, if any, within the time limit and in the manner provided in section 120 of the Charter.
Decision 2007-05-18, s. 62.
63. Preliminary or incidental applications or applications under section 81 or 82 of the Charter are heard on the date scheduled by the president or the judge to whom the application has been referred.
Decision 2007-05-18, s. 63.
DIVISION II
POSTPONEMENT
64. An application for postponement of a scheduled hearing is made by motion to the president or the judge setting out the grounds in support of the application at least 10 days before the date fixed for the hearing.
Notwithstanding the foregoing time limit, if the grounds for postponement become known less than 10 days before the scheduled hearing date, the president or the judge may accept a motion for postponement and decide in a manner that will best serve the interests of justice.
Decision 2007-05-18, s. 64.
65. Applications for postponement are granted only for serious reasons. The consent of the parties is not in itself sufficient grounds for granting a postponement.
Decision 2007-05-18, s. 65.
DIVISION III
ORDER, DRESS CODE AND DECORUM
66. Hearings of the Tribunal are open to the public wherever they may be held; however, the president or the judge may, on his or her own initiative, or on motion and in the interests of morality or public policy, order that a hearing be held in private or ban or restrict the disclosure, publication or release of any specified information or document.
Decision 2007-05-18, s. 66.
67. Hearings of the Tribunal begin at 9:30 a.m., unless otherwise indicated in the notice of hearing or by the presiding judge.
Decision 2007-05-18, s. 67.
68. All persons present at a hearing must rise when the member or members enter the court room and remain standing until the court usher asks them to be seated.
At the adjournment, the persons present again rise and may not leave their places until the members have retired.
Decision 2007-05-18, s. 68.
69. At the opening of the hearing, the court usher says aloud:
“Silence! The Human Rights Tribunal is now in session, the Honourable .....................presiding, assisted by assessors ......................”
Decision 2007-05-18, s. 69.
70. For the hearing of an application on the merits, Tribunal members wear a black gown, dark trousers, dress or skirt, a white shirt and bands.
Decision 2007-05-18, s. 70.
71. In matters contested on the merits, a male attorney may not address the Tribunal unless he is wearing a black gown, dark suit, white shirt and white bands. A female attorney must wear a black gown and white bands with a dark dress, suit or trousers. The same rule, except for the white bands, applies to articling students.
Decision 2007-05-18, s. 71.
72. In matters where the black gown is not required, male attorneys or articling students must wear plain trousers, jacket, shirt and tie and female attorneys or articling students must wear a plain skirt or trousers with a blouse and jacket, dress or suit.
Decision 2007-05-18, s. 72.
73. At hearings of the Tribunal, court clerks, court ushers and other officers of the Tribunal must at all times be attired in the manner described in section 71.
Decision 2007-05-18, s. 73.
74. Any person appearing before the Tribunal must be appropriately attired.
Decision 2007-05-18, s. 74.
75. Officers of the Tribunal performing duties and functions at the hearing must take their assigned place and remain there from the opening of the Tribunal until adjournment.
Decision 2007-05-18, s. 75.
76. Any disruption of the decorum and orderly proceedings of the Tribunal is prohibited.
Prohibited activities include newspaper reading, photography, filming, and radio and television broadcasting.
Audio recording by the media of proceedings and the decision is permitted unless prohibited by the judge. The broadcasting of such recordings, however, is prohibited.
Decision 2007-05-18, s. 76.
77. The security of the persons present at a hearing is ensured in accordance with the Regulation of the Court of Québec (chapter C-25, r. 4).
Decision 2007-05-18, s. 77.
DIVISION IV
TAKING AND PRESERVATION OF TESTIMONY
78. Testimony and arguments are taken by stenography or recorded in any other manner authorized by the Government.
Decision 2007-05-18, s. 78.
79. The clerk of the Court of Québec ensures the filing, custody and preservation of the testimony and arguments taken by stenography or recorded in any other manner authorized by the Government.
Decision 2007-05-18, s. 79.
CHAPTER V
MATTERS UNDER ADVISEMENT
80. The clerk of the Tribunal verifies that the record of the matter to be taken under advisement is complete before giving it to the judge. If the record is incomplete, the clerk informs the parties so that they may complete it.
Decision 2007-05-18, s. 80.
81. No matter may be taken under advisement until the record has been duly completed, unless the judge decides otherwise.
Decision 2007-05-18, s. 81.
82. It is not necessary to re-draft and re-sign on a separate sheet a written judgment endorsed on a proceeding and an authentic copy of the endorsed judgment may be issued by the clerk of the Court of Québec.
Decision 2007-05-18, s. 82.
83. A judge may suspend the advisement to order additional evidence if it is useful for the purposes of the judge’s decision. The judge informs the parties accordingly without delay.
An advisement may also be suspended at the request of a party for any reason considered valid.
Decision 2007-05-18, s. 83.
84. Should the parties fail to conclude the proof or complete the record within the period fixed by the judge at the hearing of a case, whether contested or not, the judge may remove himself from the case or hand down a judgment on the case as it stands or any other order he considers appropriate.
Decision 2007-05-18, s. 84.
85. In the first week of each month, the clerk of the Tribunal must inform the president of the applications that have been held under advisement for more than 5 months. The president, with the consent of the parties, may decide to refer the application to another judge who, as regards the evidence, may rely on the transcripts of the testimony or rehear the application.
Decision 2007-05-18, s. 85.
CHAPTER VI
OUT-OF-COURT SETTLEMENTS
86. If an out-of-court settlement is reached, the parties must immediately inform the clerk of the Tribunal and the clerk of the Court of Québec and file a statement to that effect, before the hearing on the merits, signed by the parties or their attorneys, if any.
Decision 2007-05-18, s. 86.
87. If it is not possible to obtain one party’s signature, the Tribunal may, on motion, declare the record closed.
Decision 2007-05-18, s. 87.
CHAPTER VII
QUARRELSOME CONDUCT
88. If a person acts in a quarrelsome manner, namely by exercising the right to bring legal proceedings in an excessive or unreasonable manner, the Tribunal may prohibit the person from making an application without prior authorization.
The unauthorized proceeding is then deemed not to exist.
Decision 2007-05-18, s. 88.
89. The prohibition order may be general or restricted to one or more districts or be directed to one or more persons.
Decision 2007-05-18, s. 89.
CHAPTER VIII
FINAL AND TRANSITIONAL PROVISIONS
90. For the purposes of section 60, time starts to run 6 months after 26 July 2007.
Decision 2007-05-18, s. 90.
91. These Rules replace the Rules of procedure and practice of the Human Rights Tribunal adopted on 16 March 2001.
Decision 2007-05-18, s. 91.
92. (Omitted in part).
These Rules apply to proceedings pending on 26 July 2007.
Decision 2007-05-18, s. 92.
REFERENCES
Decision 2007-05-18, 2007 G.O. 2, 1965