Workplace Human Rights

Evidence at the Hearing

It has been well recognized that in hearings before administrative tribunals, the rules of evidence are not as strict as those of a civil court. In addition, most statutes specifically empower the tribunal to use its discretion to admit evidence, such as allowing evidence by affidavit.

This issue was noted by a tribunal under the Canadian Human Rights Act 1 which stated that the momentum to do relax the rules of evidence emanates from the principle that such administrative hearings are more concerned with a higher goal, the formulation of social goals:

Tribunals In administrative tribunals, the rules of evidence are usually relaxed. This is because administrative tribunals are striving towards goals that are different from those of a court of law, in particular, administrative tribunals are more consciously involved in the formulation of policy than are courts.

It was also then noted that the Canadian Human Rights Act specifically permits the circumvention of the strict rules of evidence and gives the Tribunal the discretion to accept questionable additional evidence. 2

This is a general theme of human rights statutes.

B.C. provides a similar power to its tribunal allowing evidence to be admitted by affidavit “or otherwise”, whether of not admissible in a court of law. Evidence may also be allowed in private, which presumably means not in a public forum 3

Alberta law contains a similar provision allowing evidence to be given “in any manner that the tribunal considers appropriate” and also repeats the same theme that the tribunal is not bound rules of evidence as is required in judicial proceedings. 4

Saskatchewan contains the same provision. 5 It also specifically deals with similar fact evidence and states that the human rights hearing will be allowed to “receive and accept evidence led for the purpose of establishing a pattern or practice of resistance to or disregard or denial of any rights secured by this Act”. 6

Yukon provides the same specific authority for the board of adjudication to receive evidence of similar acts to prove a pattern of conduct. 7 It has the same substantive term to allow evidence which a civil court may not accept.

Nunavut law follows that of the Yukon in both respects on this issue. 8 Its board of adjudication may receive evidence of similar acts for the purpose of proving a pattern of conduct or a practice.

Manitoba’s statute follows that of Alberta. 9

The Ontario statute is much to the same effect, 10 although it does not specifically oust the law of evidence of civil proceedings.

New Brunswick follows the same pattern as the western provinces. Its human rights statute references the powers of the Industrial Relations Act , s. 67(3) to be given to the tribunal. Prince Edward Island does the same. 11

The North West Territories legislation, s. 56(1) follows this pattern.

Nova Scotia law does not contain a similar provision, nor does Newfoundland and Labrador.