Chapters 12 and 13

Management and Control of the

Hearing Process and Conduct
Outside the Hearing
 Chapter 12 – Management and
control of the hearing process
1. A tribunal’s authority to manage its own hearings is
usually set out in a statute of general application (such
as the Ontario SPPA) and/or in a tribunal’s enabling statute.
2. Common law – at common law, Tribunals have the right to
take any steps necessary to control their own processes.
3. Tribunals make their own procedural rules which often
includes very specific procedures to be applied during the
hearing process.
4. Tribunals are responsible for explaining hearing
procedures to participants.
5. A tribunal’s rules of procedure need to be flexible and
have to be guided by principle – many tribunal rules
dealing with penalties and cost awards, for example, are
“discretionary” and need not be applied by the adjudicator if
this would create an injustice or an unfair hearing.
 Authority to control the conduct of
hearings
The SPPA gives Ontario tribunals the right to control
their own hearing process by passing rules of
procedure, specifically:
1. To bar incompetent legal representatives from a tribunal
hearing.
2. To call on a police officer for assistance in maintaining
order in the tribunal hearing room.
3. To award costs to against a party who engages in
needless, unreasonable, or vexatious conduct in the
tribunal hearing room.
4. To compel attendance of witnesses at a tribunal hearing.
5. To prevent abuses of processes in tribunal hearing
rooms.
A Tribunal’s power to make a costs sanction against a
party who engages in inappropriate behaviour in the
hearing room
Tribunal case decision example (TEL-26770-12 (Re), 2012
CanLII 46661 (ON LTB))
1.In this landlord and tenant board case, a tenant made a
single disparaging remark against the Tribunal adjudicator
during the hearing
2.The tenant made no apology for the remark and proceeded
to leave the hearing room when the member tried to address
the issue with him.
3.As a result, $100.00 in Board costs were ordered to be paid
by the applicant for his disrespectful behaviour. The Applicant
was given approximately 2 weeks to pay the costs award
made against him.
Other examples of conduct that may constitute
“contempt” during a tribunal hearing
1. Disruption of the hearing proceeding by a participant or
by a member of the public who is attending the hearing.
2. Failure of a witness to obey a summons to attend and to
give evidence at a tribunal hearing.
3. Failure of a party to comply with a valid order of the
tribunal.
4. A party’s provision of statements to the media intended
to influence the outcome of the tribunal hearing or that
improperly attack a tribunal adjudicator’s character or
integrity.
5. Failure of a witness to answer a proper question put to
him during a witness examination.
A tribunal’s ability to try and punish acts
of contempt by hearing participants
1. Since contempt is considered an “offence”,
tribunals do not have the authority to punish or
impose formal sanctions on the person
engaged in this offence.
2. Unless, of course, the tribunal’s governing
statute grants the tribunal this power.
3. Having said that, tribunals can refer an act of
contempt to the Divisional Court for
adjudication.
4. The Divisional Court can make an order finding
contempt and can make an appropriate
remedy.
 Ontario tribunals rarely exercise the referral
power to state a case for contempt to the
Divisional Court
In Marsden v. Ontario, the HRTO stated the
following:
The decision to state a case for contempt to the Divisional Court
is one which is exercised by adjudicative tribunals in only the
rarest of cases and where there are no other options available to
appropriately respond to the actions of a party. The HRTO has
never taken this step in its history. This is a dispute over
disclosure and, while the issues are very important to these
parties, this is not a case where the Tribunal would exercise its
discretion to state a case for contempt. The applicant’s Request
is denied. The applicant may, if she chooses, proceed to the
Divisional Court on her own motion seeking this relief.
 A.M. v. Michener, 2009 HRTO 795 (party
application for a contempt referral to Div Ct
fails)
Facts:
1.Respondents at the tribunal hearing sought an order for contempt against the
Applicant’s lawyer because he was repeatedly late in arriving at the hearing at
the commencement of the day and after scheduled breaks.
2.He was late on four occasions, in excess of 20 minutes each time.
3.HRTO member gave the Applicant’s lawyer an opportunity to respond and he
stated that the complaint arose from personal animosity between him and the
Respondents’ counsel.
4.He was also rude and refused to abide by the member’s direction to stop
talking and make the rest of his submissions about being late in writing.
5.Tribunal chair reserved his decision until the next day.
6.Applicant’s lawyer was late again the next day, explaining that it had become
impossible for him to arrive on time because of one reason or another, and that
he would need to be accommodated with later start times than those
scheduled.
 HRTO’s decision on request for
an order for contempt
Tribunal order made against the Applicant lawyer provided as
follows:
1.Counsel shall arrive on time by 10:00 a.m. for every hearing date
(unless the starting time is changed by the Tribunal) and arrive on time
following every break in the hearing day, unless there is a legitimate
reason such as a medical emergency, accident or other exceptional
reason in which case counsel should make all reasonable efforts to
advise the Tribunal of the same by telephone or other communication
prior to the starting time for the hearing or the resumption of the
hearing, as may be applicable.
2.Counsel shall conduct himself with courtesy and respect when
addressing the Tribunal, including complying with any directions that
the Tribunal may make.
 Additionally, the HRTO member
stated in its reasons for decision:
“In the event that counsel is late again and
fails to contact the Tribunal and provide a
legitimate reason for his lateness or
otherwise fails to comply with these
directions, the Tribunal may proceed with
the hearing in the absence of counsel and/or
receive submissions from the parties as to
what other relief should be granted.”
 A Show Cause Hearing to Address Acts of
Contempt in the Tribunal Hearing Room

1. A person accused of contempt at a tribunal

hearing should be given the opportunity to
explain his or her behaviour before the tribunal
member decides whether to refer the contempt
matter to the Divisional Court.
2. The person should be given an opportunity to
apologize, try to justify their conduct, etc. to the
satisfaction of the adjudicator.
3. The adjudicator then decides whether to ask a
court of competent jurisdiction to commence
formal contempt proceedings against the person.
Tribunal Complaint to Law Society against an Abusive
Legal Representative

If the participant engaging in the misconduct in the

tribunal hearing room is a paralegal or lawyer,
licensed by the LSO:
1. The administrative tribunal can make a complaint
to the Law Society of Ontario against a licensee
acting for a party, instead of referring the person to
the Divisional Court for a contempt proceedings.
2. The LSO can discipline its own members for an
abuse of process committed before a Tribunal as
this would violate the Rules of Professional
Conduct.
 Tribunal power to exclude a party’s legal
representative from the hearing room
1. Tribunals can bar a party’s legal representative
from participating in the hearing if the
representative is incompetent or not acting
properly as advocate.
2. There is a higher bar to exclude lawyers and
paralegals from the hearing room than agents,
but anyone can be removed for engaging in
objectionable conduct.
3. An alternative recourse to exclusion from the
hearing room exists for lawyers and paralegals
– the tribunal can make a complaint against the
licensee to the Law Society of Ontario.
 Witnesses Appearing at
Tribunal Hearings
1. The SPPA empowers tribunals (in addition to parties)
to ask a judge of the Ontario Superior Court of
Justice to issue bench warrants to witnesses who do
not attend at hearings when properly served with a
witness summons to do so.
2. The SPPA gives witnesses a right to make their own
objections during a witness hearing.
3. Under the SPPA, non-party witnesses have the right
to have a lawyer or paralegal present to represent
them while testifying at a hearing – but the lawyer or
paralegal role is limited to advising the witness on his or
her rights as a witness.
 A Tribunal’s power to prevent
abuses of process
1. A tribunal’s power to prevent abuses of process
is part of a tribunal’s common law power to
control its own adjudicative processes, to ensure
they are fair.
2. Flagrant or serious violations of a Tribunal’s
rules of practice and procedure can constitute “an
abuse of process”.
3. Examples:
• trying to represent two interests in the same tribunal
proceeding.
• a party’s failure to have substantial grounds to
request a re-consideration of a tribunal decision.
 A Tribunal’s power to maintain order in the
hearing room
1. …Includes the power to ask participants to stop
offensive conduct in the hearing room, failing which
the person can be ordered removed from the hearing
room, made the subject of a contempt proceeding at
the Ontario Superior Court of Justice, or be made
subject to a complaint to the Law Society of Ontario.
2. ….Includes the power to call on police to maintain
order (sometimes this is needed immediately where
the conduct is particularly egregious).
3. If a tribunal hearing participant’s behaviour is
threatening or potentially violent – the tribunal
adjudicator should be asked to halt the hearing
proceeding and to summon security immediately.
 A Tribunal’s power to award
preparation costs
1. Check the enabling statute to see if the tribunal can award
preparation costs to the successful party at a hearing.
2. Under the SPPA, Ontario tribunals are only empower to
make a costs order against a party where the conduct of
the party has been unreasonable, frivolous, or vexatious.
Two requirements for a tribunal to award a party its
preparation costs:
1. Statutory authorization coming from the Tribunal’s
governing statute.
2. The Tribunal has establish rules for the ordering of costs,
the circumstances in which costs may be ordered, and the
amounts or costs or the manner in which the amount of
costs is to be determined.
 Unrepresented Parties and Abusive
Participants
Unrepresented parties
- Where “unrepresented parties” engage in
misconduct or a violation of the Tribunal’s rules of
procedure, Tribunal members show more leniency.
- Often the party is warned about his misconduct and
is given an opportunity to express his frustration.
Abusive participants
- Many tribunals apply a 3 strikes you’re out rule for
abusive participants.
- Let’s review the rule, as described on pages 279-
280.
 Open and Closed Tribunal
Hearings
Opening tribunal hearings
In Ontario, the default rule is that tribunal hearings
must be open to the public UNLESS:
- Matters involving public security may be disclosed
- Intimate financial matters may be disclosed
- Personal matters may be disclosed
Otherwise the open-court principle will apply to the
tribunal, meaning its hearings must be open to the
public
Example of an Ontario tribunal that holds closed
hearings:
- Social benefits tribunal
 Chapter 13 – Conduct Outside the
Tribunal Hearing
1. Ex parte communication with tribunal members
by parties violates the principle of procedural
fairness, especially the principle of impartiality.
2. Parties should NOT have direct access to
Tribunal members outside the hearing room.
3. Tribunal staff, and NOT hearing members, should
provide parties with updates and general guidance;
an adjudicator should not engage in this role.
4. Adjudicators should avoid “casual
conversations” with tribunal hearing
participants.
 Paralegal and Lawyer Contact with the
Media during a Tribunal Hearing
Rules that advocates need to follow:
1. Do not argue your case to the media.
2. Do not make statements outside the tribunal hearing
room that are intended to influence the outcome of the
hearing.
3. Make sure that the information you give to the media is
accurate and consistent with the evidence presented at
the hearing.
4. Do not make derogatory or offensive remarks about
the adjudicators, parties, lawyers or paralegals
participating in the hearing proceeding.
Can Tribunal Members Comment on their Own
Tribunal Decisions after they are Released?
1. Tribunal decisions should be written in such a
way as to “speak for themselves”.
2. Tribunal decisions need to be clear and
sufficiently explanatory so as not to require
clarification.
3. No further statements from the Tribunal member
should be required to explain the decision.
TWO CIRCUMSTANCES WHERE A TRIBUNAL
DECISION CAN BE REVISED AFTER IT IS
RELEASED:
1. To correct typographical errors.
2. To correct calculation errors.