Administrative Law

Chapter 10
Tribunal Procedures During
Hearings
 The conduct of a tribunal hearing
Starting point
• The conduct of tribunal hearings varies for the
following reasons:
1. Based on what the tribunal enabling statute and
regulations stipulate.
2. Based on the tribunal’s preference for more formal or
less formal procedures.
3. Based on the tribunal’s rules of practice and procedure.
4. Based on the complexity of the case brought to the
tribunal.
5. Based on the sophistication of the parties before the
tribunal.
 Differences in hearing procedure between
different tribunals
1. Most tribunals hold hearings in public; a few
tribunals hold their hearings in private (e.g.,
Social Benefits Tribunal).
2. Some tribunals apply the rules of evidence
strictly; other tribunals do not.
3. Some tribunals permit for intervenor
participation; other tribunals do not.
4. Some tribunals require witnesses to give
evidence under oath; other tribunals allow
for evidence to be given by affirmation.
Tribunal hearing formats 1. Oral
Hearings
Advantages of this hearing format:
- may reduce the need for documentation from parties.
- allows a tribunal to assess the demeanour and the
credibility of parties/witnesses in an optimal fashion.
- presentation of argument can be carried out more
efficiently.
- presentation of witness examination can be carried out
more efficiently.
- tribunal adjudicator has direct control over the hearing
room.
- tribunal may be able to intervene more effectively to
assist unrepresented parties.
- may facilitate better observation of tribunal proceedings
by the general public.
 Disadvantages of this hearing
format
- cost of the hearing space.
- delays in scheduling a hearing time.
- travel costs for parties and witnesses.
- stress of witnesses and parties having to
undergo cross-examination.
 2. Electronic Hearings
Definition of electronic hearing: this hearing format type
includes hearings held by telephone conference call or by
video conference.
Advantages of this hearing format:
-no travel cost.
-video conferences allow tribunal members to assess party
and witness demeanour.
-video conference hearings can be transparent and
procedurally efficient.
-gives the tribunal reasonably good control over the hearing
process.
 Disadvantages of this hearing
format
- the cost of using the video conferencing facilities.
- tribunals may have difficulty identifying witnesses or
parties.
- participants may talk over each.
- documents must be transmitted in advance of the
hearing (exhibits cannot be introduced during the
hearing through witnesses).
- teleconferences don’t allow tribunal members to
assess the demeanour of participants.
- the quality of the communications may be poor or
unreliable.
 3. Written hearings
Starting point
- sometimes parties present all the relevant
case information to a tribunal in writing.
Advantages of this hearing format:
1. Eliminates travel time and costs.
2. Eliminates the cost of providing hearing
facilities.
3. Eliminates the need to find a hearing time
that accommodates all participants’
schedules.
 Disadvantages of this hearing
format
- sometimes there are significant costs associated
with the preparation of written submissions.
- sometimes there are significant costs associated
with the delivery of written materials to the parties
and to the tribunal.
- tribunal hearings held in writing may take longer
given the correspondence, clarification questions,
and questions and responses that must be
exchanged between the parties and between the
parties and the tribunal.
- parties may need to clarify several procedures
before finalizing their written submission.
- there may be a lack of transparency.
 Factors to consider where a party has a
choice as to tribunal hearing format
1. Do you need to cross examine the opposing party and their witnesses?
Must the evidence be tested in this way?
2. Is a high level of transparency and publicity needed?
3. Will an electronic or written hearing cause significant prejudice to a party?
4. Does the public interest require an in-person hearing (will members of the
public be affected by the decision?).
5. Will witnesses need to be questioned about the contents of numerous or
lengthy documents?
6. Does the enabling legislation prohibit certain hearing formats?
7. Will a written hearing violate the requirement of procedural fairness?
8. Do the parties consent to a particular hearing format (Ontario’s workplace
safety and insurance appeals tribunals holds written hearings on consent
of the parties without any express statutory authority).
9. Is a mixed hearing format best?
 Stages in oral/video conference
hearings
1. Tribunal adjudicator presents his introductory
comments.
2. Tribunal adjudicator addresses preliminary
issues.
3. Parties present opening statements.
4. Parties present their evidence.
5. Parties cross-examine each other’s witnesses.
6. Parties re-examine their own witnesses.
7. Reply evidence is called (to reply to an issue
raised in the other party’s evidence).
8. Parties present closing arguments.
Participants in the tribunal hearing
Party rights
• to be represented by a paralegal or lawyer of their choice.
• to present evidence and legal argument.
• to conduct cross examination.
• to call and examine witnesses.
Applicant or Appellant
1. This is name of the party who sets a tribunal proceeding in
motion.
2. This party must prove a prima facie case to be successful.
Respondent
1. This is the name of the party that replies to the tribunal
application or to the tribunal appeal.
 Continued.
Purpose of a legal representative
1. To present the party’s case as forcefully and strongly as
possible, within the limits of the law.
2. To take further action after the Tribunal has rendered its
decision.
3. To prepare the case effectively, which includes:
• preparing written submissions to the tribunal. preparing the
evidence to be presented.
• preparing witness examinations.
• preparing legal argument.
• preparing case strategy.
• preparing motions.
 Lawyer and paralegal advocates can only be
removed from Tribunal hearing rooms for serious
misconduct
1. Lawyers and paralegals can only be
removed from Tribunal hearing rooms
for serious misconduct.
2. Non-licensees can be removed for
lesser misconduct.
3. Hearing adjudicators often apply the
“three strikes you are out rule” to
abusive participants in the Tribunal
hearing room.
 Witnesses
1. Witnesses supply factual information
during a tribunal hearing. The tribunal
must consider this information in arriving
at its decision.
2. Information from witnesses is obtained
through questioning by counsel.
3. Under the SPPA and various tribunal
enabling statutes, witnesses’
attendance can be compelled by way of
a summons.
 Tribunal counsel
Tribunal counsel as prosecutor
- Tribunal counsel, in presenting a case to its own
Tribunal, cannot provide legal advice and legal
assistance to the adjudicator who is deciding the case.
- Tribunal counsel should have no communication with
the adjudicator outside of the hearing room and should
remain professionally detached from the hearing
adjudicator at all times.
Tribunal counsel as legal advisor
- The legal advice given to a tribunal member by a
tribunal counsel is privileged; it does not need to be
disclosed to the parties unless the tribunal statute
states otherwise.
 Role of the tribunal adjudicator
• to act as a passive and neutral referee.
• to enforce the procedure for the conduct of the
hearing.
• to listen attentively and make detailed notes of
arguments and evidence heard.
• to make a fair and well-reasoned decision
that reflects:
- the evidence.
- the law.
- the merits of the case.
 Tribunal hearing procedures
1. Introductory remarks
- Adjudicators often begin hearings by reminding the parties
of the purpose of the hearing and how the hearing process
will work.
- Longer remarks are given when one of the parties is
unrepresented by legal counsel.
2. Preliminary matters
- At the beginning of a tribunal hearing, parties may ask an
adjudicator to make rulings on procedural matters (e.g., a
motion to adjourn, a motion to decide a jurisdictional
issue, etc.).
3. Absence of a party
- You need to prove that the missing party was given notice
of the hearing; then you may prove your party’s case in a
relaxed fashion.
 Continued.
4. Requests for an adjournment
- At beginning of a Tribunal hearing, a request for an
adjournment will normally not be granted unless you
can show exceptional circumstances for the request.
5. Request for a stay (suspension) of the tribunal
hearing proceeding in two circumstances:
- A party needs must show that the subject matter of
the tribunal application is currently being adjudicated
in a paralegal civil or criminal court proceeding.
- Alternatively, a party may be able to show that it is
seeking judicial review of an earlier aspect of the
tribunal proceeding.
 Hearing the tribunal case on its
merits
1. Party opening statements – party opening
statements can help focus the hearing.
2. Presentation of the evidence
- The applicant or appellant presents his evidence
first, followed by the respondent.
- The burden of proof is on the applicant or appellant
to prove his case.
- Check the enabling statute for the standard of proof
- if it is “silent”, the tribunal will set a standard of proof
which is fair and reasonable: usually the balance of
probabilities standard.
 Continued.
3. Collecting the evidence
- If the enabling statute provides for an adversarial
hearing to be followed, collecting the evidence will
be the sole responsibility of the parties.
4. Closing arguments
- Tribunals must provide a party with an opportunity
to make a closing legal submission.
- Among other things, closing arguments
summarize the significant parts of the evidence
and ask the Tribunal to make certain legal findings
from it.