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The Human Rights Tribunal

The Human Rights Tribunal is a specialized court that handles cases concerning:



However, cases don’t go directly to the Human Rights Tribunal. Complaints must first be filed with the Commission des droits de la personne et des droits de la jeunesse. The Commission then has to decide whether the complaint is well-founded, which means that it is supported by the facts.

If the Commission decides the complaint is well-founded, it can bring the case to the Human Rights Tribunal and act on behalf of the person who made the complaint.

But sometimes the Commission decides to withdraw from the file even when it finds that the complaint is well-founded. If the Commission withdraws, the victim, or the person who made the complaint for the victim can, if certain conditions are met, go before the Tribunal on her own and at her own expense. She can also be represented by a lawyer.

The Human Rights Tribunal has several options when it intervenes in a situation of discrimination or exploitation. For example, the Tribunal can:





Judicial characters and concept

Judge

I am a judge at the Human Rights Tribunal.

I love my work at the Tribunal. Along with assessors (people who assist judges), I listen to what both parties have to say. I decide if there really was discrimination, harassment or exploitation, and decide on the appropriate response. This might be payment of money to a neighbour who was the victim of a racist insult in public, ordering that an employee fired because of his sexual orientation be given his job back or invalidating a municipal by-law that violates the freedom of religion. The variety of cases is something I really enjoy!

I was appointed to this Tribunal because of my experience and interest in human rights. But don’t get the idea that my colleagues and I are biased in favour of the Commission des droits de la personne et des droits de la jeunesse or that we give them an easy time! Like anyone else, the Commission must prove its claim to win its case.

At the Human Rights Tribunal, we’ve tried to relax the rules and limit the number of written legal documents, so that the process is as simple as possible. Obviously, it’s more difficult for people acting on their own without a lawyer. Often I have to interrupt them: “Watch out sir, this is the cross-examination right now, not the arguments stage…”, or “Careful madam, you can’t interrupt the witness. You’ll have a chance to tell your version of the facts later.” I can’t help them out just because they aren’t represented by a lawyer. That would be unfair to the other side.

One part of my work that I really enjoy is that the Human Rights Tribunal travels. It goes all over the province to hear cases in the communities where complaints come up. I can be in Chibougamau one week and the Iles-de-la-Madeleine the next. Let’s just say I’m on the road a lot! I’ve noticed that people prefer to tell their stories in an environment that is familiar to them. Testifying is stressful to begin with, so it’s better if people don’t have a tiring trip on top of that.

It’s also important to remember that in discrimination cases, people are often stressed and emotional. I listen to them carefully and respectfully. For them, it is very important to come to tell their story to the Tribunal. This lets them to make peace with the past, to turn the page. For a judge in my situation, listening is almost as important as mastering the law.

All judges must be objective and impartial. We don’t have the right to side with someone because of our personal feelings. Judges must be aware of their own prejudices and guard against them. It is a constant challenge.

The judges and assessors at the Human Rights Tribunal meet often. We have meetings every month and training sessions several times a year to keep up to date on developments in the law. Yes, the law changes and evolves constantly! We also organize “summits” twice a year, when people come to share their knowledge about specific human rights topics. The “summits” last 2 days and cover 3 aspects of human rights law: international, thematic, and social. Since we render justice on behalf of society, it makes sense that we would think about the values of our society and the way they are evolving. Our decisions must reflect the level of tolerance of modern Quebec society.



Assessor

Our role is to help the judge make a decision that takes into account different points of view. During the hearing, we act a bit like the judge: we sit on either side of her, listen to the witnesses and read the documents filed as evidence. We also take lots of notes that become useful after the trial has finished. Sometimes we ask the witnesses questions, but the judge always stays in charge of the tribunal. It is always the judge who rules on objections made by the lawyers.

Before the trial, we read the documents submitted by the defendant and the Commission or the person bringing the complaint. We also consult the authorities (judgments, texts on the subject, laws) referred to by the two parties. That’s a lot of reading, but it’s worth it: it means we are prepared to hear the cases, which can have a big impact on a lot of people.

After the trial, we talk about the case with the judge. This is called deliberation. However, it is the judge who makes the decision and signs the judgment. We are there to add our views of the case and to bring different perspectives based on our personal and professional experience.

Our work as assessors at the Human Rights Tribunal only takes up a few days per month. Some assessors are retired, others have various jobs. Fortunately, most of us have understanding employers who appreciate our involvement with the Tribunal and allow us to take time off. We come from diverse backgrounds: the majority are lawyers, but there are also doctors, social workers, psychologists, etc. As a result, there are a lot of different points of view around the table.

Why become an assessor? One thing is for sure: we were all chosen for our experience and the interest we’ve shown in human rights. Since Quebec is a mosaic of different cultures, by appointing us, the Justice Department works to encourage diversity and equality. For a court specialized in cases of discrimination, it makes sense, doesn’t it?



Defendant

I never thought I would find myself in court!

Where to begin? Probably with the visit of Mr. Lefebvre, since that’s why I am here. He came to visit the top floor of a duplex that I bought a few years ago, after I retired. I live below it. Mr. Lefebvre was friendly and I thought he would be nice to have as a tenant.

At our second meeting, I saw his two hyperactive, noisy boys and I could only imagine those little feet running above my head all day long: boom, boom, boom! Don’t get me wrong - I love kids, but I’ve worked hard all my life and I think I deserve to live quietly in my little place. I don’t think that’s too much to ask. So I rented the apartment to someone else. My new tenant, Mrs. Larrivée, is an elderly woman. We have the same schedules and we get along well. I suggested to Mr. Lefebvre that he could rent another apartment belonging to a friend of mine, but he refused.

As a landlord, I have always respected the law regarding repairs, rent increases, visiting the apartment and so on. I’ve never even gone before the Rental Board! You can imagine that I was shocked when I received a notice from the Commission des droits de la personne et des droits de la jeunesse informing me that I was under investigation for a complaint of discrimination! Discrimination against whom? What kind of investigation? I decided to call a lawyer to find out more. He reassured me and explained that this process was not criminal, that the Commission wanted to see if I had discriminated against someone, and that if I wanted, he could help and advise me.

The investigators who came to meet me were polite. They asked me to talk about the two visits to the apartment and my conversations with Mr. Lefebvre. I would have liked to speak to Mr. Lefebvre himself to try to reach a compromise. I can’t rent him the apartment anymore, but I would have liked to tell him that I have nothing against him and his family, and maybe to try to find a solution. But he turned down my invitation and my lawyer said that we couldn’t insist because mediation, a process that gives people a chance to find a solution together, has to be voluntary.

After the investigation, the Commission recommended that I rent the apartment to Mr. Lefebvre. It said that I had shown “discrimination based on civil status”, to use their words. Apparently we do not have the right to refuse to rent an apartment to someone because they have children. I thought that I had to follow the Commission’s recommendation, but I did not want to throw Mrs. Larrivée onto the street! This didn’t seem fair at all. So my lawyer told me that it was possible to not follow this recommendation and wait to see if the Commission would go to the Human Rights Tribunal on behalf of Mr. Lefebvre. In the beginning, I confused the Commission and the Tribunal, but my lawyer explained the difference. The Tribunal is a specialized court and completely separate from the Commission. As a defendant before the Human Rights Tribunal, I am on an equal footing with the Commission.

The Commission did indeed file a suit against me and here I am. It is intimidating to have to tell my version of the facts to 3 people sitting above you. I would have called everyone “your honour”, but my lawyer said this wasn’t done in Quebec. We say “Madam Justice” or “Mister Justice” and “Mister (or Madam) Assessor”. I knew there aren’t any juries in civil cases, but I thought the witness box would be raised, facing the audience, beside a judge…you know, like in the movies? But no, you have to stand facing the clerk, who is sitting in front of the judge and the assessors. There is a little cushioned chair there that looks comfortable, but you’re not really supposed to sit on it, unless you have trouble standing when you testify.

My lawyer says you can’t predict how the Tribunal will decide. He can’t guarantee what will happen, but says that I have good arguments. According to him, by offering another apartment to Mr. Lefebvre, I tried to make a “reasonable accommodation,” which is a perfectly valid defence. I am really happy to be represented by someone who is not intimidated by these kinds of terms.

I don’t know if I will win. All I know is that I haven’t been this nervous since my wedding day!



Defence Lawyer

Please understand, I’m not here to help people, businesses, or institutions to discriminate as they please!

But the Commission is not always right. Sometimes it thinks the person filing a complaint (the “complainant”) was the victim of discrimination or harassment when it is reasonable to argue he was not. Like anyone else, a person accused before the Human Rights Tribunal has the right to defend himself and be properly represented. So I’m here to defend my client’s interests as best I can, using all my knowledge and skills.

In a trial before the Tribunal, my role involves challenging the complainant’s version of events or giving reasons that could justify my client’s behaviour. I therefore listen very carefully to what the lawyer for the Commission says, since I have to be able to respond to her statements and, if possible, present evidence contradicting them. For example, if a witness is questioned, I can cross-examine him to bring out facts that are more in my client’s favour, or to show that the witness did not remember things correctly. But I am not the Big Bad Wolf! My goal is not to make witnesses cry during cross-examination. I try, while respecting the truth, to present the facts in a way that supports my client’s case.

Arguing before the Tribunal is only a small part of my work. I meet clients, study important documents and question witnesses before the trial in the presence of their lawyers. We call this an “out-of-court examination” and we sometimes learn really interesting things there! I also speak with the lawyers for the other people involved, attend mediation meetings and write proceedings (legal documents used in court cases), legal opinions and anti-discrimination policies for businesses (better safe than sorry!). I also have to meet my witnesses to make sure they are well prepared to testify. On the whole, my work is very demanding but rarely boring.

The human aspect is also very important. Without overdoing it, it is crucial to be sensitive. The complainants often have the impression that I want to take away their rights and the defendants are outraged at being accused of discrimination. My client today, Mr. Martineau, is really upset. He is afraid he will stutter when he speaks in court or that he will unintentionally offend someone. I reassured him and explained how the trial would go, so that he would feel ready and confident.

I have been representing Mr. Martineau since the beginning of the investigation process at the Commission. He was still in shock when he called me to say that the Commission had sent him a notice of investigation after someone made a discrimination complaint against him. I met him and explained what this complaint and investigation meant. We spoke about Mr. Lefebvre’s visit and what happened on the day in question. When the investigators from the Commission came, I sat in on their discussions. Not to throw a wrench in the works, mind you, but simply to support my client and ensure that his rights were respected.

Some of my files never make it to the Tribunal. Sometimes, after the investigation, the Commission recommends a solution and my client agrees to it. Other times, I negotiate an agreement with the other side. In this case, it was impossible to reach an agreement, even though my colleague at the Commission and I tried our best. Mr. Lefebvre is determined to get this apartment and refuses to accept a settlement out of court. My client has already found another tenant. He doesn’t want to break his lease with this tenant and risk a lawsuit. So the Tribunal will have to settle the problem.

As you might have already guessed, I decided to practise in human rights law because I am fascinated by debates about values in society. I think my work helps shape society, and that gives me a lot of satisfaction.



Witness

I’m a witness.

A few months ago, I was quietly sitting at home, reading a good book, when a bailiff knocked at my door. I was really taken aback! I thought someone was trying to sue me! But it was an appearance notice ordering me to testify in court. I quickly learned that I would have to go before the Human Rights Tribunal to tell them things I know about personally.

The notice to appear, or “subpoena”, included the date and time when I was supposed to arrive at the Tribunal. I was a little uncomfortable. I was being asked to testify in a case against the owner of a duplex where I am the janitor. He is being accused of discrimination in his choice of tenant. I remember clearly what happened: Mr. Martineau’s friendly attitude changed when he noticed the two little boys running around the apartment. He had asked me to bring a key to give to Mr. Lefebvre in case they signed a lease: the key stayed in my pocket.

I’m worried that Mr. Martineau will be angry at me for testifying against him, but I don’t really have any choice but to obey the subpoena. When a witness is called to appear in court and doesn’t show up, the judge can have the person arrested and brought before him!

The subpoena doesn’t specify at what time I will testify. So I will have to take the day off work, which will leave a hole in my budget, since I am self-employed. If I were an employee, the law would protect me and prevent my boss from taking action against me. But, of course, he wouldn’t have to pay me for the time I didn’t work.

A few days ago, I decided that it would be better if I prepared a little bit. After all, the events they will ask about happened more than 2 years ago. I have to search my memory and remind myself of conversations and dates.
On the big day, afraid of being late, I arrived at the courthouse several minutes early. At the reception, I checked the room number on my notice to appear and it was the right one. Sometimes it can change: that happened to my sister-in-law! The receptionist also told me where I could go fill in a claim for transportation and meal expenses. It isn’t as much as my pay for the day, but it’s better than nothing.

When I got to the room where the trial was going to take place, the court clerk made a note that I was there. The lawyer who had called me as a witness came to meet me. After introducing herself and shaking my hand, she explained how the hearing would work. Here is the advice she gave me:


Soon after the trial got started, the judge asked me to leave the room to wait my turn, so that my testimony would not be influenced by the Mr. Lefebvre’s who would be questioned before me. Finally, my turn came and the court usher came to get me in the hallway. I was asked to stand in the witness box. The court clerk then asked me to solemnly swear to tell the truth, and asked me to state my name, age, and address. First, I was questioned by the lawyer for the Commission. Everything was going fine at that point.

Then, the lawyer for the defendant started to ask me questions. He seemed to want to trip me up, to make me think that I wasn’t really certain of what I had seen. He also asked me some questions that I would have preferred not to answer. But I had already been told that refusing to answer meant I might be in contempt of court. I didn’t want to end up having to pay a fine or biting my nails in a cell! Half an hour later, everything was finally over! I was exhausted, but proud of myself. I had fulfilled my duty as a citizen. And I was finally able to see up close how our justice system works.



Public

I am… a member of the public.

The cases heard by the Human Rights Tribunal are open to the public. Everyone has the right to attend. I am here today because I am very interested in discrimination issues. When people from minority groups can have their complaints heard when they are victims of discrimination, harassment or exploitation, this is a sign of an open society. When people act on their prejudices, the Tribunal becomes important.

Trials have been public for a long time. As a society, we have always been against the idea of having the administration of justice take place behind closed doors. In exceptional cases though, the Tribunal can still order an in camera hearing, which means that the public doesn’t have access to the courtroom.

But when the public attends a trial, it is important that people respect decorum (rules of respect in courtrooms). You’re not allowed to read the paper when witnesses testify, even if it’s boring. You can’t talk to a neighbour or eat a snack, because if you do, the court usher will come over and have a word with you. When the judge and the assessors enter the room, everyone stands up and stays standing until the judge and assessors sit down. From then on, the audience must stay silent. This is important so that the process takes place in a calm and impartial atmosphere. The public can’t applaud or boo the judgment. When the judge and the assessors are ready to leave the courtroom, everyone stands again and waits for them to leave before moving.

Journalists sometimes attend trials. But contrary to what we see in other countries, television cameras are not allowed in the courtroom in Quebec. The work of court artists gives a visual picture of what happened to people not in the courtroom. I love sitting next to the artist during a hearing. The role of journalists is to report what is said in court, unless the judge has ordered a publication ban.



Plaintiff's Lawyer


I've been a lawyer at the Commission des droits de la personne et des droits de la jeunesse for 6 years. My work has been challenging. I have defended the interests of many victims of harassment, discrimination and exploitation. I chose to work for the Commission because I like the idea that my work contributes to ridding Quebec society of certain prejudices, or at least limiting the negative impact they have. I’m thinking of racism, sexism, homophobia…the list, sadly, is long.

Today, I’m representing the Commission, which is suing a landlord after a complaint of discrimination in housing. It seems that the defendant refused to rent an apartment to the complainant because he and his spouse have 2 young, active boys.

Even though I am defending his interests, the complainant is not my client: he is the witness for the Commission. The Commission is the equivalent of the victim in criminal law. It is the Commission that pays my salary. If the complainant wants something different than what the Commission is requesting (for example, if he wants to ask for more money), he can, if certain conditions are met, take the case himself at his own cost.

My work begins long before my first contact with the complainant. When the investigators for the Commission finish examining a complaint, they submit their file. I consult the documents and testimony they collected from the complainant and the person complained about, and do some legal research, which is often very detailed. Then I and the other lawyers for the Commission decide whether the Commission should begin proceedings. If we conclude that the Commission should act, it issues a resolution. It is a bit like a demand letter – a last chance for the person to repair the damage done. If the person refuses, the Commission can begin legal proceedings.

My work is a lot like the work of any lawyer working in civil cases, except I am lucky enough to work only in the field of human rights. And the judges and assessors I argue in front of are all, like me, specialists in discrimination issues. When I mention the Charter, everyone knows what I am talking about! One of the most difficult parts of my work is comforting people who are stressed and under pressure. Even though I get angry sometimes about cases, I have to make sure my emotions don’t get the better of me and keep some professional distance from my cases. I have to keep a cool head and stay calm. No one ever won a point in court by yelling at the top of her lungs.



Complainant


I am... the complainant.

I would shake your hand, but you would find my hand kind of clammy. I am really nervous! I hope I’ll be able to testify clearly and calmly. Even though the events that brought me here happened two years ago, I am still a little worried I’ll get all worked up.

Imagine this: I thought I had found the perfect home for my family. It was big, bright and close to a park, a daycare and a school. I could afford the rent and the landlord, Mr. Martineau, was very friendly. So was Mrs. Gagné, the janitor. Mr. Martineau was very cooperative when I mentioned that one of the window frames in the back needed fixing. He suggested I come back for another visit after he’d had a chance to have it repaired. He shook my hand and told me not to worry about the fact other people wanted the apartment since I seemed like an ideal candidate.

When I came back, I brought my girlfriend and my 2 kids, Max and Thomas, who are 5 and 3 years old. Mr. Martineau looked surprised. The boys were very excited about the visit and ran all over the place. My wife also looked really excited. She loved the apartment. Mrs. Gagné, who was also there, chatted with us, but the landlord was less talkative than in our first meeting. He showed me the new windows, but kept looking at the boys, who were having fun opening all the doors.

When I said I was ready to sign the lease, Mr. Martineau mumbled something about a waiting period, and talked about appointments with other people interested in the apartment. The week after that he told me he had decided to rent to someone else. I was really disappointed. My family was going to have to stay another year in our apartment, which was too small for all of us. I was furious. This man never mentioned that he had decided to rent to someone else because of my kids. But during that second visit, I saw how they bothered him. He hadn’t been fair and I didn’t know what to do.

One of my colleagues told me about the Commission des droits de la personne et des droits de la jeunesse (also called the Human Rights Commission). She explained that discrimination is not just racism or sexism. It can also be discrimination based on “civil status”, which includes having children. I was reluctant to file a complaint. But finally, I told myself that a lot of other people have to deal with similar situations and it was time for this kind of thing to stop. I file a written complaint with the Commission. A little later, an investigator phoned me to set up an appointment. We talked about the incident.

I had no news for a while after that. Finally, a lawyer called me. She asked me if I was interested in a mediation session with Mr. Martineau to try to reach an agreement. But at the time, I was going crazy trying to find a new apartment because Julie was now pregnant with Nicolas. (Yes, another boy! And he will enjoy running around, just like his brothers!). I just didn’t have time to go, so I declined the invitation.

Afterward, I met the lawyer for the Commission. She explained that the Commission had decided to “take up my defence”, which meant it would take a case on my behalf against Mr. Martineau in front of the Human Rights Tribunal. I asked what her fees were, but thankfully she explained that she was an employee paid by the Commission. She also explained the different steps that would be taken and we met again later to discuss the case.

And here we are: today is the first time I’ve seen Mr. Martineau since everything happened. He seems to have aged and I feel a little sorry for him. But when I think of the way my family was unfairly turned down for that apartment, I can’t help having a grudge against him. Mrs. Gagné is here to testify. I don’t know if she will contradict or agree with what I have to say. The judge introduced herself and explained her role and the role of the assessors in a very friendly way. She is probably used to dealing with really nervous people! I was also surprised to see how polite and respectful the lawyers were toward each other. I wonder how they do it. I wish I could stay calm like that while waiting to see if justice will be done!



Court Usher


I'm the court usher. The word “usher” was originally used to describe a servant who was in charge of doors and allowing people to pass through them. But I’m not just a doorman!

One of my responsibilities is to make sure the courtroom is ready for the hearing. If there are a lot of documents in the case, I am the one who brings them from the office of the judge and assessors to the courtroom. And believe me, in some important cases, the documents can fill several boxes! I also make sure that the legal books the judge might need are available. One final, but important detail: thanks to me, the judge, assessors, lawyers and people in the case have water to drink!

Since the judge and assessors don’t come into the room until everyone else is there and ready for the hearing to begin, I have to find the lawyers, if they aren’t already in the courtroom. Generally, they aren’t too far away. There have been a few times, however, when I had to ask the clerk to call them on the intercom.

The hearing usually starts on time. But the judge sometimes delays it to give the parties time to negotiate an out-of-court settlement. In these situations, I act as the messenger and let the judge know how the negotiations are going. If the parties come to an agreement, everyone meets in the courtroom and the judge will confirm the settlement by giving a judgment that is in line with the settlement. If there is no settlement, the trial goes ahead as planned.

One of my most important functions is to ensure there is decorum (rules of respect) in the courtroom and that the hearing takes place in a calm and respectful manner. When the judge and assessors enter, I ask everyone to stay quiet. Once they take their seats, I deliver the famous line, “Silence! The Human Rights Tribunal is now in session, Judge So-And-So presiding.” I then invite everyone to take their seats and make sure cell phones and pagers are turned off. After that, if anyone talks, eats or reads the paper in the section reserved for the public, I quietly remind them of the rules.

During the trial, I often have to spend long hours sitting down without moving around. I listen to the testimony and the lawyers’ arguments, and keep an eye out for situations when I might be needed. I might be asked to go photocopy documents, meet witnesses waiting in the corridor or, in hearings that are closed to the public, ask people other than the parties and lawyers to leave the courtroom.

In my work, it is important to use a lot of discretion. If I am assigned to a case that involves people I know personally, I ask another court usher to replace me. I know it is difficult and intimidating just to be in court, so no one should have to tell his story in front of an acquaintance.

So the court usher is really the person who makes life a bit easier for the judge, assessors, lawyers, witnesses and parties involved in the case. The usher quietly makes sure everything is in order.



Court Clerk


I'm the court clerk.

In the courtroom, I’m the person sitting at the desk in front of the judge. Chances are I’ll already be there when you come in! In a nutshell, I act as a secretary for the judge and the assessors.

In the morning, I bring all the files for the cases that will be heard that day to the courtroom. The court usher gives me a hand when I need it! Before the judge and the assessors arrive, I figure out who is present and who is absent among the people who have been summoned. I ask each person to come forward to my desk and I make a note of their presence for the Tribunal’s records.

When the case is ready to be heard, the judge and assessors enter the courtroom. Once they are seated, I use my computer to start the recording of the hearing. And then we begin. The cases follow one after the other and are all very different! But no matter what kind of case it is, it’s up to me to ask each person who has to testify to make a solemn affirmation that she promises to tell “the truth, the whole truth and nothing but the truth”, and then to state her full name, age and address.

During the hearing I write down the details of what takes place in a document called the minutes. I take note of who speaks, the name and address of each person who testifies and the objections made by the lawyers. I also handle any evidence submitted to the court. I register each piece of evidence in the court record, which means that I number them so they are easy to fine later on. When you hear a lawyer say “Mr. Justice, I would like to refer you to exhibit D-4,” he’s talking about the fourth exhibit submitted by the defence. It could be a document, part of the record of the examination of a witness or even an object. When the lawyers would like the judge and assessors to read other court judgments or other documents, they submit them to me.

I’m not only the first one to arrive, but also the last to leave the courtroom. After the hearing, I finalize the minutes, make sure the room is empty and bring all the files to my office so they can be processed and filed in the file room.



Recording


In Quebec, what happens in a courtroom is digitally recorded. If your idea of a courtroom comes from the movies, you might be disappointed to discover there are no court stenographers bent over typewriters, typing furiously, and constantly hearing: “The witness is lying! Stenographer, read back what he said five minutes ago” or “Sir, that’s enough! Stenographer, strike that from the record”.

The recordings of hearing are used in a variety of ways:


The system is simple. All courtrooms are connected to a digital recording system by a network of wires, microphones and loud-speakers. The court clerk starts the recording at the beginning of a hearing. He stops the recording during breaks and at the end of the hearing.

How to Get a Recording

To get a recording, go to the office of the person in charge of recordings at the courthouse where the hearing took place. You must complete a form, indicating the date of the hearing, the number of the courtroom, the judge’s name and the exact time the hearing started and ended. If you’re unsure of any of this, you can consult the minutes of the hearing. The minutes are a document prepared by the clerk that outline what happened during the hearing. You can consult the minutes by visiting the office of the clerk of the court in question. Minutes are also sometimes available from the recording office at the courthouse. By looking in the minutes, you can even find out when a witness spoke or when the arguments you are interested in took place. This way you avoid paying for unnecessary minutes of recording.

Recordings cost 30 cents a minute. It takes 3 days to get them and you must specify the format you want: tape, CD or CD-ROM.

You can also obtain a written transcript in criminal cases for $3.70 a page. Getting a transcript can take 30 days at a minimum. For other types of cases, there is no transcription service. If you need an official written version of the proceedings (for example, for use in court), you must obtain the audio version and then hire an official stenographer at your own expense to transcribe the recording.

Some Exceptions

Not all recordings are available. The public doesn’t have access to recordings of cases held in camera (closed to the public), such as in the Family Division of the Superior Court, or the Youth Division of the Court of Québec.
There are also special rules for each court. For example, in Superior Court and the Court of Québec, you must get permission from the judge to get the recording of a judgment given from the bench (a judgment delivered orally rather than in writing).



The proceedings, step by step

This section explains the main steps in presenting a case in court. The idea is not to turn you into a legal expert, but simply to make sure you’re informed!


1. The Application

An “application” is a document submitted by a person filing a complaint before the Human Rights Tribunal.

The person who submits the application is called the plaintiff. The person against whom the complaint is made is called the defendant.

The application explains what the defendant is accused of doing, the plaintiff’s arguments and what the plaintiff is asking for.

The application is divided into numbered paragraphs. Normally, each paragraph contains one allegation. Allegations can be a fact, an argument or a reference to a piece of evidence.

The plaintiff must file the application with the clerk of the Court of Québec and serve the application on the defendant. (To “serve” a document means to deliver it in such a way that there is a proof it was received. Often, service is done by a bailiff.)

The Plaintiff - An Explanation

Depending on the situation, the plaintiff before the Tribunal can be:





2. The Briefs

Within 15 days of filing the application, the plaintiff must file a brief. The brief is a longer document explaining the case in more detail. The other parties, such as the defendant, can also file briefs.

The Plaintiff’s Brief

In the brief, the plaintiff must specify the evidence he plans to present (documents, witness testimony, expert reports). The brief must also include the legal basis for the application, including the laws and court decisions (other cases that have gone before the courts in the past) that support the application. Finally, the plaintiff must give an estimate of the time needed to present his case before the Tribunal. The Tribunal sends the brief to the defendant and the other parties, if there are any.

The Defendant’s Brief

The defendant can also produce a brief, if she wishes, within 30 days of receiving the plaintiff’s brief. In her brief, she must explain what evidence she plans to present (documents, witness testimony, expert reports) - just like the plaintiff. She must also identify the laws and cases supporting her defence. Finally, she must provide an estimate of the time it will take to present her defence to the Tribunal.



3. The Appearance

An appearance is an indication that the defendant intends to exercise his rights by challenging the claim. The defendant is not obliged to file an appearance with the Tribunal, but can choose to do so. Normally the appearance is filed in writing.



4. Preliminary Applications and Applications during the Proceedings

Throughout the proceedings, the parties may have requests or “applications” for the Tribunal. Some of these requests are made in writing, while others are presented orally. The Tribunal must decide on these special requests before giving a final judgment.

Preliminary Applications

Preliminary applications are written requests or “motions” presented to the Tribunal.

There are 3 types of preliminary applications:


A motion based on a preliminary application must have an affidavit attached if the facts mentioned in the motion are not yet proved and part of the court record. The affidavit, which is a kind of written testimony of a person, is treated as evidence.

Arguments over preliminary applications are done orally before the Tribunal. The parties explain their points of view, with or without the help of witnesses. The parties don’t always have to be present, and often the lawyers come to the Tribunal alone at this point. The decision of the Tribunal on a preliminary application must be given in writing.

Applications During the Proceedings

Applications can also be presented during the proceedings. These applications are called “incidental applications”. They can be used to try to change a proceeding (a written document filed with a court, such as a motion, affidavit, defence, etc.), get permission to participate or “intervene” as a party to the case, add another person as a co-defendant, or even ask for access to evidence in the possession of the other party. This evidence could include documents mentioned in the other party’s brief.

Incidental applications are presented to the Tribunal as motions, usually in writing, but they can also be made orally during the hearing.
An application must be accompanied by an affidavit if it refers to facts that are not yet proven and part of the court record. An incidental application can be challenged orally during the hearing in front of the judge.

A judge’s decision on an incidental application must be given in writing.



5. Intervention

A person or a group of people interested in a case can ask the Tribunal for permission to become parties to the case. They are then called ‘interveners’.

Automatic Intervention

A victim or group of victims are automatically parties to the case and can intervene before the Tribunal without needing permission. This means that they can produce a brief, present witnesses, question and cross-examine witnesses or even present arguments before the Tribunal.

Intervention with Permission

A person, a group of people or an organization can also become interveners. To do this, the person, group or organization must ask the Tribunal to recognize that they have a sufficient stake in the case. Also, each time the person, group or organization wants to present or question witnesses, have access to the evidence or comment on it, they must ask for permission.



6. Examination on Discovery

Each person gets a chance to ask questions of the other parties about the written proceedings, including the application and the briefs. Everything that is said is recorded and the written out by a stenographer  (http://www.ecoledestenographie.ca/description.html) in what is called a “transcript”. If the person being questioned is represented by a lawyer, the lawyer will be present at the examination as well.

An examination on discovery can help the defendant prepare her brief and think about negotiating a settlement.

A person can also question a third party, such as a witness. But one thing neither party can do is ask questions to the Commission’s staff. Investigators and other Commission workers have an obligation of confidentiality.

Using the Examination on Discovery

Once the examination on discovery is finished, the stenographer prepares the transcript. The transcript can be added to the court record – in part or in its entirety – if the party that asked for the examination in the first place chooses to do so. The questions and answers then form part of the evidence the Tribunal must consider. This is why it is important to be well prepared before coming to an examination on discovery: the answers given in the examination have the same weight as if they were given during a hearing before a judge.



7. The Pre-Hearing Conference and Settlement out of Court

Before the hearing, the judge sometimes calls a meeting called a “pre-hearing conference”. The purpose of this meeting is to prepare for the trial. It is also a chance for the parties to meet and talk about the file, and perhaps arrive at a settlement.

The Pre-Hearing Conference

The president (head judge) of the Tribunal decides when a case should have a pre-hearing conference. Before the conference, the parties have to prepare a summary of the facts they admit (the facts that are not challenged) and the facts that will have to be proven. They must also explain what, in their views, are the legal questions the Tribunal must decide. The pre-hearing conference can take place over the telephone or in person.

At the pre-hearing conference, the judge is sometimes accompanied by 2 assessors (people who assist the judge). The judge identifies the legal issues at stake and sees where there is disagreement and where the parties agree on certain parts of the case. During the pre-hearing conference, the parties are asked to consider settling the case. If no settlement is possible, the Tribunal will plan how the hearing will unfold so that it will run efficiently.


Settlement out of Court

Sometimes the parties accept a negotiated settlement of the case. This agreement, called an “out-of-court settlement” can come as a result of the pre-hearing conference or after informal negotiations between lawyers for the parties.

When a settlement is reached, the agreement must put in writing, signed and submitted to the Tribunal. This puts an end to the case.



8. The Trial

When the parties cannot arrive at a negotiated settlement, the application is presented and argued before the Tribunal during a trial (also called a «hearing”).

For the trial, the Tribunal sits in a “division” of 3 members of the Tribunal: a judge and 2 assessors  (http://(www.educaloi.qc.ca/cotecour/tribunal_droits_personne/illustration/assesseurs). The judge runs the trial and gives the final judgment. The assessors help the judge with certain tasks, but do not have any decision-making power. It is the plaintiff that has the burden of proof, which means it is his job to prove the truth of his complaint.

Time and Place of the Trial

The trial takes place in the judicial district (region) where defendant resides or is domiciled, or where he has his main place of business. The president of the Tribunal chooses the date of the trial with the help of the parties. Sometimes the defendant does not produce a defence or even a brief and there is no pre-hearing conference. In that case the Tribunal contacts the defendant, or her lawyer if she has one, to find out what the defendant intends to do and to schedule a date for the trial.

Once the date has been chosen, the Tribunal sends the parties a notice of the hearing, at least 10 days prior to the trial. The notice specifies the date, place and time. Once this notice is sent, the trial can take place even if one of the parties does not show up. A party can also ask the Tribunal to postpone the trial (by making a “motion for postponement”) for a serious reason, such as illness or the absence of a key witness.

How the Trial Unfolds

The trial is generally open to the public. The parties take turns presenting the evidence to support their points of view. The plaintiff (either the Commission or, in some cases, the complainant) presents first. The other parties’ lawyers can then question the plaintiff’s witnesses. Once the plaintiff has finished, the other parties present their evidence. The plaintiff can then question the other parties’ witnesses.

Evidence

The Tribunal can accept any evidence that is relevant and useful. This evidence can include witness testimony, documents, expert reports, videos, tape recordings, photographs and objects. The rules of evidence before the Tribunal are more flexible than in other courts.

Because the rules are relaxed, the judge has a degree of discretion. But the Tribunal still has to respect the general principles of justice, such as the right of each party to be heard or to cross-examine witnesses, and the duty of the Tribunal to make fair decisions.

A party that wants to use a document or other piece of evidence must file it with the clerk of the Court of Québec at least 15 days before the trial date. If a party wants to have an expert heard by the Tribunal, he must first serve the expert’s report on the other parties and also file the report with the clerk of the Court of Québec at least 60 days before the trial. (To serve a document means to have it delivered in a way that provides proof it was received. Service is usually done by using a bailiff.)



9. Matters under Advisement and Judgments

After hearing the evidence and arguments of the parties, the judge gives a written decision about the complaint. The judge is not always able to give a decision right away, and she can take the time she needs to think about the case.

Matters under Advisement and Judgment

The judge can reject the application, accept it, or accept it in part. The judge cannot give more than what is asked for in the application or brief.
The decision can be given orally before the parties, but it still must be put in writing later and served on the parties. The judge can write and sign her decision directly on the application.

Often, the judge is not ready to make a decision right away following the arguments by the parties. She can take time to discuss the case with the assessors, who have also heard the evidence, and then come back before the parties to give a decision orally.

When the case requires even deeper reflection, the judge can declare the hearing suspended to take the decision “under advisement” and make a decision later.

When it accepts an application, the Tribunal can order an end to the wrongful behaviour and, if necessary, order that money be paid to the victim(s). In addition, the Tribunal can order the creation of an “an affirmative action” program and it has the power to change, continue or cancel an existing program.

Payment of Damages

The payment of damages (money) is meant to compensate a person for any harm suffered as a result of wrongful behaviour that violated a right protected by the Charter.

“Material” damages compensate for money spent or lost as a result of a Charter violation (for example, where the plaintiff lost a job as a result of discrimination).

“Moral” damages compensate for suffering, inconvenience, loss of quality of life, lost sleep, loss of appetite, low self-esteem, anxiety, anguish, etc., experienced as a result of wrongful behaviour that violates the Charter.

“Punitive” damages can be ordered if the Charter right was violated intentionally. For a violation to be considered intentional, the defendant must have intended to cause the result of his behaviour



10. Correction, Revision and Revocation

Correction

As long as the judgment has not been put into force, the Tribunal can correct an error of writing or calculation. For example, an error may have appeared in the text of the judgment, or numbers could have been missing from the calculation of damages.

Revision and Revocation

On request or on its own initiative, the Tribunal can also revise or revoke a judgment that has not been put into force in 3 situations:


When there is a revocation, the decision is cancelled and a new hearing must be held. When there is a revision, the decision is modified but there is no new hearing. Revision and revocation only happen in rare cases.



11. Appeals

An appeal is a procedure used to challenge a judge’s decision when one of the parties believes that judge has made an error. An appeal is not a way for dissatisfied parties to have a second trial on a matter already decided by the Tribunal.

Appeal

The party that launches an appeal must show that the judge committed an error in her appreciation of the law or the facts. This error must be serious and must have influenced the result of the trial. The appeal is not a second trial. At the appeal stage, witnesses and evidence are very rarely presented. Any evidence submitted on appeal must be new evidence.

Procedure

Appeals require the permission of a judge of the Court of Appeal of Québec and are heard by that court. An application for permission to appeal a decision must be made within 30 days of the date of the Tribunal’s decision.

The rules of the Court of Appeal of Québec provide that each party must prepare an appeal brief, called a factum. This document outlines the facts of the case and the parties’ arguments in detail. Before the appeal hearing, the judges study the factum carefully. Since the Court of Appeal does not hear witnesses, the parties must use the factum to tell the Court of Appeal about any important evidence or witness testimony presented before the Tribunal.



12. Enforcing a Decision

Enforcing a judgment (decision) means taking the necessary measures to have it respected. Decisions of the Tribunal that order someone to pay a sum of money are enforced in the same way as decisions of the Court of Québec or the Superior Court.

Definition

The losing party can decide to respect the judgment voluntarily. This is called voluntary execution. But if this does not happen, certain measures are available to oblige a party to respect the judgment. This is called forced execution. For example, the person who won the case can do an examination after judgment, which means she can ask the losing party questions about any property and income of that party that could be seized to pay money owed.

Orders to Pay Money

This type of judgment can be executed from the time the judgment is filed with the clerk of the Court of Québec, or with the clerk of the Superior Court. (The court where a judgment is filed depends on the amount of money awarded. The Superior Court deals with bigger amounts of money than the Court of Québec.)

In the case of a forced execution, there is generally a seizure of furniture, land or wages. The party who wants to seize must get a “writ of seizure”, a formal authorization from the court. The writ must be approved by the clerk of the Court of Québec or the Superior Court, depending on the case. The clerk is said to “issue” the writ. There are fees to pay for the writ and carrying out the seizure.

But be careful! There are rules  (http://www.educaloi.qc.ca/en/loi/other_infosheets/408/) about what can be seized. A party cannot seize all of the opposing party’s property, even if a judgment has ordered the payment of a large sum of money.

Other Decisions

There are judgments other than orders to pay money. For example, a judgment can order someone to stop harassing the plaintiff or to give Mr. X his job back.

These judgments can be executed as soon as the time limit to appeal expires. In some cases, the Tribunal can order that a decision be executed sooner. Still, if the case is appealed, the Court of Appeal can suspend the execution of the judgment.

Failure to respect a judgment of the Tribunal is considered to be contempt of court, an offence that can lead to up to a year in prison and/or a fine of $50,000. The person in contempt can also be held responsible for any damage resulting from the fact the judgment was not executed.