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Tips on Litigating a Constitutional or Human Rights Case
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The Honourable Mr. Justice Robert K. Sharpe,
My tips are from my perspective as a sole practitioner who represents individuals mainly, including young people and children in advocating for their rights.
Constitutional claims may arise at the outset or mid way through your matter. These considerations apply generally to either situation.
- I think that many lawyers who see the human rights, constitutional or civil liberties issues are also often politically and socially minded people with a particular view of social justice and how to best achieve it.
- It is often easy to see how your client's issue can further or set back a particular issue and to be tempted to use that to interpret your client's instructions.
- You have to be sure to listen carefully to your client's instructions that are not always clear and ensure that you are doing as instructed - not as you think or wish to be instructed.
- It is not unusual for the victimization to be more important to the victim than the solution.
- These clients usually have made the fact of their harassment their life.
- They will refuse all reasonable offers to settle.
- They may be too damaged emotionally and psychologically to take on the battle.
- They are difficult to get instructions from.
- If you sense that the problem is more important to the client than the solution be wary of taking them on.
- Listen to your gut instincts.
- Be sure to confirm everything in writing because these clients will likely forget your good advice and/or their instructions to you.
3. Remember the role of the human rights commission, be sure your client understands that role
- The human rights commission is not on your side or against you per se.
- The human rights commission takes carriage of the file.
- You have very little control over the timing of the process.
- Staying in touch with the investigator and responding quickly can help, but, if the opposing side is unresponsive the case can really drag on.
- Your client should avoid direct communication with the investigator - most investigators respect your role and will communicate directly with you.
- The self managing client can create problems for themselves.
4. Be sure to have proper support systems in place
- Constitutional claims are generally novel and labour intensive.
- As a sole practitioner, having an assistant, having a good printing service, a trusted process server and another lawyer who can act as agent on your other files while your constitutional claim takes over your practice is critical.
- Don't wait to act.
- Find another lawyer who can help you work through the procedural issues.
- Consider whether you need to seek injunctive relief - such as a stay of proceedings.
- Contact the other parties to obtain their positions on the injunctive relief you are seeking.
- As soon as you think there may be a constitutional issue, identify it, decide whether you are going to raise it (get instructions from your client), determine what forms you need to use - the forms are different in criminal and civil court and a tribunal may have its own process as well.
5. Be sure to obtain adequate funding
- If you are asking for a retainer, be realistic about the cost. Filing and copying fees alone can be expensive. Unless you are capable of carrying the cost, this alone can make your claim fail.
- Factums take a lot of time to prepare. Preparing to argue the case also takes time. You may need to prepare affidavits. In short, be sure to get a sufficient retainer.
- If you are getting outside funding,
. Funding for certain equality and language rights claims can be obtained through the Court Challenges Program - information about that is available on line at
http://www.ccppcj.ca/e/ccp.shtml
. Legal aid has a test case litigation program - information about it is available on-line
http://www.legalaid.on.ca/en/info/how_to_apply.asp
- Your client should be at least as committed to the case as you are and should be assisting you all the way in obtaining funding.
Remarks come from my practice in both private sector, advancing mostly interests of claimants/plaintiffs in human rights and constitutional contexts, doing my own Cerloxing, and with Ministry of the AG. I should emphasize at the outset that what I have to say tonight are my own views and do not represent those of the Attorney General of Ontario.
- Human rights can arise in a variety of forums, not just OHRC
- E.g. in arbitration under a collective agreement, arbitrators have the power to determine human resource issues and to award remedies for discrimination
- With the new Martin in SCC case (Oct. 3 - NS Workers Compensation Board v. Martin), this jurisdiction was expressly recognized to extend to other tribunals such as WSIB; recognized ability/obligation of those who decide questions of law to apply to Charter
- For
plaintiff this can mean choice of forum – different costs, delays, benefits
associated with various options
- For new lawyers in government, or those involved in reviewing or implementing new regulations such as WSIB, it is more important than ever to consider the human rights or constitutional issues which may arise.
- Sensible to consult with specialized Constitutional Law Branch whose specialty it is to provide advice to all government ministries on this issue.
If representing employers/businesses, those who tend to be respondents in human rights complaints, encourage “an ounce of prevention is worth a pound of cure” approach:
- Educate your clients about their human rights obligations.
- Encourage them to formulate and promulgate a policy against harassment and discrimination in the workplace: the approach of “head in the sand/we don’t have discrimination here and don’t need a policy/having a policy will just insult employees/get people riled up” is still alive in some workplaces.
- The twin benefits of having a policy are: First, the process of formulating a policy and communicating it to employees sends a clear message about the importance of human rights and identifies behaviour that will not be tolerated – which in turn reduces the likelihood of the behaviour occurring. Second, if a complaint is filed, existence of policy can be used by an employer or business to reduce its liability by showing it took steps.
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It is not enough to have a
policy. If a complaint is received, it
is important that the employer follow the policy and insure that its internal
processes of investigation and addressing the issue, which are usually great on
paper, are actually followed; there are excellent consultation and resources to
assist in this area for employers who need it.
- Since most documents generated in the course of such an investigation are generally producible to the complainant in litigation, make sure to advise your clients to keep all their documentation and to keep in mind that others may be reading them down the road.
Grant & Bernhardt