Chapter 9: Tribunal Procedures During Hearings

Reasons conduct of tribunal hearings vary

what enabling statute/regulations say

tribunal’s preference for formal/less formal procedures

tribunal’s practice and procedures rules

complexity of case

sophistication of the parties

How are tribunals different from from each other

some hold public hearings, some private

some strictly apply rules of evidence

some permit intervenors

some require evidence under oath and some allow it by affirmation

Oral hearings advantages

reduced need for documentation

easier to assess demeanour/credibility of a person

more efficient presentation of arguments and witness questioning

adjudicator has control over the room

easier for tribunal to intervene or assist

may facilitate better public observation

Disadvantages of oral hearings

cost of hearing space

scheduling delays

travel costs

stress of cross-examination

Electronic hearing: definition

held by telephone conference or video conference call

Advantages of electronic hearing

no travel cost

members can still assess demeanour

transparent and procedurally efficient

good control over hearing process

Disadvantages of electronic hearings

cost of conferencing facilities

difficulty identifying witnesses/parties

talking over each other

documents must be transmitted in advance

teleconferences don’t allow visibility

poor communication quality

Written hearings

all relevant case information is submitted in writing

Advantages to written hearings

no time and travel costs

no facilities cost

easier to accommodate all schedules

Disadvantage of written hearing format

significant costs associated with preparing and delivering materials

may take longer

may be a need for clarification

lack of transparency

What type of hearing is best if there is a need for a high level of transparency and publicity

oral

Stages in oral and video conference hearings

adjudicator makes introductory comments and addresses preliminary issues

opening statements

evidence is presented

cross examination

re examination

possibly reply evidence

closing arguments

Applicant/appellant is the party who

sets the proceedings in motion

Respondent

party that replies to the application or appeal

Legal representative: preparing a case effectively includes preparing

submissions

evidence

witness examinations

legal argument

case strategy

motions

When can lawyers/paralegals be removed from the hearing room

only for serious misconduct

Who can be removed from the hearing room for less serious conduct

non-licensed participants

What rule is often applied before removing a participant

three strikes and you are out

Purpose of witness evidence

supply factual information during a tribunal hearing

The SPPA and other tribunal statutes, allow witness attendance to be compelled by

summons

Tribunal counsel as prosecutor cannot

provide legal advice to adjudicator who is deciding the case

Tribunal counsel as legal advisor

is allowed to give advice to adjudicator

The advice given to the adjudicator by tribunal counsel does or does not have to be disclosed

does not (unless statute says otherwise)

Role of adjudicator

passive and neutral referee

enforce procedure for conduct of hearing

listen attentively and make detailed notes of arguments and evidence

make a fair and well-reasoned decision

Decision made by adjudicator should reflect the

evidence

law

merits of the case

If a party is absent then the party that is present must show

absent party was given notice of the hearing

In an adversarial hearing who has the sole responsibility for collecting evidence

the parties