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:

• The Commission, which acts as the plaintiff when it decides to bring a case to the Tribunal on behalf of a complainant.
  
• The complainant. If the Commission finds that the complaint is well-founded but decides nonetheless to withdraw from the file, the complainant can, if certain conditions are met, go before the Tribunal on her own at her own expense.
  
• Someone else. For example, an organization can bring a case to the Tribunal.

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.

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.

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:

• application to have the complaint rejected
  
• application to have the case moved to another court
  
• application to postpone the case

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.

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.

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 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.

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.

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. 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.)

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

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:

• new facts are discovered.
  
• a legal or procedural mistake has made the decision invalid
  
• one of the parties was not able to appear in front of the Tribunal for a good reason

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.

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.

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 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.