Rules of Practice and Procedure

IN THE MATTER OF the Human Rights Act,
S.N.W.T. 2002, c. 18 as amended; AND IN THE
MATTER OF section 52 (1) thereof;

RULES OF PRACTICE AND PROCEDURE BEFORE THE ADJUDICATION PANEL

General

1. The purpose of these Rules is to assist the parties named in a complaint in obtaining just, fair and timely decisions and orders from an Adjudicator.

Definitions

2.Definitions:

“Accommodation” means adapting or adjusting facilities and services, to meet the needs of a party to a hearing;
“Adjudicator” means the member of the Adjudication Panel appointed under section 51 of the Act to hear a Referral or Appeal;
“Agent” means any person other than the legal representative of a party who, with the consent of a party, assists the party by making oral or
written representations to an Adjudicator;
“Appeal” means an appeal of a decision made by the Director of Human Rights to dismiss a complaint under s. 45 of the Act.
“Director” means the Director of Human Rights appointed under section 23 of the Act;
“Documents” include any writing that is filed with the Panel and writings intended to be used by a party at a pre-hearing or hearing;
“Hearing” means the process whereby the parties to a complaint may give and present evidence and/or make oral and written or written submissions in relation to an Appeal under section 45 of the Act or a Referral under section 46 of the Act;
“Mediation” means a process conducted by an Adjudicator with the consent of the parties that is intended to resolve all or part of the matters and issues raised by an Appeal or Referral;
“Panel” means the adjudication Panel appointed under Part 5 of the Act;
“Party” means any person who has filed a complaint under section 29(1),any person named in a complaint as having contravened the Act and any person named in sections 53(1)(2) and (3) of the Act;
“Proceeding” includes any pre-hearing conference, application, motion or hearing presided over by an Adjudicator;
“Pre-hearing Conference” and “pre-hearing” mean any prescheduled meeting between the parties and an Adjudicator in person or by telephone;
“Referral” means the referral of a complaint made by the Director of Human Rights under section 46 of the Act.

3. These Rules are applicable to all proceedings before an Adjudicator unless the Adjudicator, after consultation with the parties, directs otherwise.

4. No proceeding is invalid by reason only of a defect or other irregularity of form.

5. Parties, legal representatives, agents, advocates and witnesses may be provided with language translation services and other accommodation during pre-hearings
and hearings, on application made to an Adjudicator.

Obligations of the Parties

6. The parties to a proceeding before the Panel have the responsibility to treat each other, Panel members and Panel staff courteously and with respect. Such treatment includes:

Providing accurate contact information and reporting changes as quickly as possible;

Replying to requests for scheduling information quickly and accurately;

Reading all correspondence, documents, brochures, Rules and legislation necessary to prepare for pre-hearings and hearings before an Adjudicator;

Following the orders and directions of the Panel carefully and diligently;

Filing and serving upon the Panel and all parties any writings, including arguments and case law, in support of all applications, motions and Hearings.

Appeals

7. An appeal of a decision of the Director of Human Rights may be commenced by filing a Notice of Appeal in form.

Service and Filing of Documents

8. Documents may be served on a party in any of the following ways:

by personal service;
by registered mail or courier to the party’s last known address for service;
by facsimile transmission or Email where the facsimile number or Email address is stated to be the address for service on any document filed and served on a party or by agreement of the parties.

9. An Adjudicator may require a party to give formal proof of service by way of an Affidavit or Statutory Declaration.

10. All documents filed with the Panel and served on the parties to a complaint shall contain the following information:

the full name of the party filing the document and, where applicable, the name of the party’s legal representative or agent;
the mailing address of the party filing the document or that of the legal representative or agent;
the address for service of the party filing the document if it is different than the mailing address;
the file number and names of all of the parties to the proceedings.

11. Every party to an Appeal or Referral shall notify the Panel and every other party to the proceedings of any change of address for service within five (5) days of such change.

12. Documents filed with the Panel shall be filed before 5 p.m., Monday through Friday at the Office of the Panel. Documents filed by Email or facsimile may not exceed twenty-five (25) pages except with the express permission of an Adjudicator.

13. Upon the filing of a Notice of Appeal or a Referral, the address for service of the parties shall be the last known address of each of the parties contained in the Notice of Appeal or letter of Referral.

Calculation of Time

14. The time prescribed by these Rules or an Adjudicator to do any act or thing shall be calculated:

when calculating the number of days between two events, the day on which the first event happens is not counted. The day on which the second event happens is counted;
when the time period is less than seven days, holidays are not counted; and,
when the time expires on a holiday, including a Saturday or a Sunday, the act may be done on the next day that it is not a holiday.

15. An Adjudicator may extend or abridge the time limits fixed under these Rules.

Pre-hearing Conferences

16. On receipt of an Appeal or Referral, the Panel’s Office Administrator will contact the parties to determine their availability for a pre-hearing conference. If the Office Administrator is not able to contact the parties using a means other than by registered mail, the Office Administrator will issue a Notice of Pre-hearing Conference to the parties requiring that the parties reply within a reasonable period of time, providing their available times and dates for a pre-hearing conference.

17. If a party fails to respond to a Notice of Pre-hearing within a reasonable period of time, the Panel may issue a Notice of Pre-hearing Conference fixing a date and time for a Pre-hearing to take place.

18. Parties shall be prepared to discuss all matters relating to a Referral or Appeal at Pre-hearings, including:

The names and addresses and other contact information of the parties and their legal representatives, advocates or agents;
The names and contact information of any other person who may be added as a party or who may give evidence before the Adjudicator at a Hearing;
The issues that are to be decided by the Adjudicator on the hearing of the Referral or Appeal;
The number of witnesses to give evidence at the hearing and the need, if any, to exchange statements of what they will say at the hearing;
The remedies that are sought by the parties, including any remedy as to costs.
The appropriate means of filing materials with the Panel and effecting service on the parties;
Any accommodation needs of the parties;
Deciding the content of the Record, if any, to be used by the Adjudicator;
Deciding the mode of hearing that is appropriate and where the hearing will take place;
Establishing deadlines for the exchange of written arguments and the disclosure and production of will-say statements, documents and records;
Setting dates to discuss or argue any preliminary matters or to have additional pre-hearings and to hear the Referral or Appeal;
Discussing whether the parties wish to engage in Adjudicator-led mediation before proceeding with a hearing.

19. The Adjudicator who holds a pre-hearing may not be the same Adjudicator who presides over the hearing of an Appeal or Referral.

20. Proceedings at pre-hearings are not recorded. A party may make application to have a pre-hearing recorded or an Adjudicator may decide to record a pre-hearing, on his or her own motion.

21. If a party fails to attend a pre-hearing, the Adjudicator may, without
further notice to that party, make rules governing the practice and procedure in the proceedings and may schedule the next step in the proceedings, including another pre-hearing or a hearing.

22. Following a pre-hearing, the Adjudicator shall prepare and serve on the parties a Pre-hearing Memorandum summarizing the issues discussed and setting out any orders made or directions given to the parties.

Attendance of Witnesses

23. An Adjudicator may issue a Notice to a Witness to Attend a Hearing in Form A appended to these Rules, on written application to an Adjudicator which discloses (a) the name and address for service of the witness and (b) the nature of the evidence that
the witness is expected to give at the hearing.

24. If a witness fails to attend a hearing after being served with a Form A, the Panel or a party may apply to a Judge of the Supreme Court for the issuance of a process to require the appearance of the witness before a Judge of the said Court to be dealt with according to law.

25. Each party shall bear the costs of its own witnesses subject to any Order for costs made by an Adjudicator at a hearing.

Adjudicator led Mediation

26. Adjudicators may provide information about Adjudicator-led mediation to parties during pre-hearings. The mere provision of such information does not preclude an Adjudicator from hearing the assigned Referral or Appeal.

27. Parties who wish to apply for Adjudicator led mediation shall enter into a Mediation Agreement in Form “B” appended to these Rules with such changes as the circumstances may require.

28. An Adjudicator who participates with the parties in a mediation shall not preside over any subsequent proceeding.

Motions and Applications

29. Motions and applications may be brought by a party to a hearing by serving a completed Notice of Application upon (a) the Adjudicator and (b) the other parties along with any other documents or case law to be used during the making of the motion or application, at least fourteen (14) days before the motion or application is heard.

30. The party making a motion or application shall obtain a date and time for the hearing of the motion or application from the HRAP’s Office Administrator.

31. The party responding to a Notice of Application may reply to the motion or application in writing and, if so, shall serve the written reply upon the other parties and the Adjudicator at least five (5) days before the hearing of the Application.

Forms to Use

32. The forms of the Notice of Application and Reply are appended to these Rules as Forms “C” and “D”, respectively.

Withdrawal of a Complaint

33. A complainant may withdraw a complaint against a respondent, in whole or in part, at any time before a hearing is commenced with the consent of the respondent.

34. Both the complainant and respondent may be required by an Adjudicator to complete a Withdrawal of Complaint in the form set out in Schedule “F” to these Rules.

35. After a hearing is commenced, a complainant must make application to the presiding Adjudicator to withdraw a complaint.

36. The withdrawal of a complaint or part thereof shall result in its immediate removal from the Panel’s active file list.

37. The withdrawal of a complaint or part thereof shall have the effect of a final determination of the complaint unless the parties agree otherwise, in writing.

Hearings

38. The Adjudicator presiding at a hearing shall determine the practice and procedure for the conduct of the hearing.

39. The rules of evidence in civil actions and proceedings are not binding on an Adjudicator.

40. Hearings shall be open to the public unless an Adjudicator decides otherwise after hearing from the parties.

41. The Panel may publish the names of the parties to a hearing, the alleged grounds for discrimination at issue and reason for the hearing, prior to a hearing.

Mode and Place of Hearing

42. Hearings may occur by way of:

written and oral argument;
teleconference;
videoconference;
the calling and examining of witnesses, in-person; or
any combination of the above.

43. The presiding Adjudicator will decide the appropriate mode of hearing after hearing from the parties.

44. Hearings involving the examination of witnesses in-person before an Adjudicator will take place in Yellowknife unless otherwise ordered by the presiding Adjudicator, after hearing from the parties.

Interveners

45. Any person who is not a party to an Appeal or Referral may apply to an Adjudicator to call evidence and examine witnesses during a proceeding before an Adjudicator.

46. An Applicant under Rule 41 must demonstrate a substantial and direct interest in the subject matter of the proceeding as required under s. 7(1) of the Public Inquiries Act, S.N.W.T., 1988, c. 14, as amended.

Special Cases

47. If an Adjudicator proposes to obtain the opinion of a Supreme Court Judge on a question of law under section 61 of the Act, the parties shall have notice of the Adjudicator’s decision, the opportunity to provide written submissions to the Adjudicator before the opinion is solicited and a copy of the decision rendered by the Supreme Court Judge.

Orders and Decisions

48. Directions, Orders and the reasons for decisions made by an Adjudicator in relation to motions, applications and evidence on the merits of an Appeal or Referral shall be in writing and be served upon the parties.

49. Decisions made by an Adjudicator may be put into an Order prepared by an Adjudicator.

50. An Adjudicator may make an Order for costs against a party to a hearing, including the hearing of an Appeal, if the Adjudicator is satisfied that:

the complaint is frivolous or vexatious;
the investigation or adjudication of the complaint has been frivolously or veraciously prolonged by the conduct of a party; or,
there are extraordinary reasons for making such an order in the circumstances of the case.

51. An Order made by an Adjudicator may be filed with the Clerk of the Supreme Court and be enforced as a judgment of that Court.

Decisions and Orders Made Public

52. Decisions and Orders of an Adjudicator may be published on the Panel’s website and may otherwise be made available to the public unless an Adjudicator decides otherwise as a result of an application by a party to edit such Decisions or Orders, in whole or in part.

Communications with Adjudicators

53. Except during hearings, pre-hearings and mediations, all communications with Adjudicators shall be by telephone, fax, regular mail and Email addressed to the Adjudication Panel Office Administrator at:

#14 – 4915 48th Street
Yellowknife, NT X1A 3S4
Phone: 1-888-920-3188 or 1-867-920-3188
Fax: 1-877-920-6278 or 1-867-920-6278
Email: hrap_admin@hrap.nt.ca

50. Email may be used to communicate with the Panel in the following circumstances:

To file documents and materials in accordance with procedures established by an Adjudicator during pre-hearings;
To respond to requests for information, including scheduling information, made by Panel staff;
To obtain procedural advice from Panel staff;
To obtain information about the availability of an Adjudicator to hear applications or motions;
To make other general inquiries directed to Panel staff.

51. Email may not be used to communicate the following to the Panel:

Correspondence passing between the parties;
Written argument or other submissions except as allowed or directed by an Adjudicator;
Commentary relating to the proceedings or the parties to the proceedings.

Applicable as of September 1st, 2008