Chapter 8: Trial Procedures Before Hearings

Goal of pre-hearing processes

identify participants

focus and narrow issues

establish procedures to be followed

Pre-hearing processes will vary according to

type of hearing

Types of hearings

oral
written
electronic

Arbitrator Gray in Thermal Ceramics said the extent of prehearing exchange of information should be decided by who

the agencies

Arbitrator Gray in Re thermal Ceramics said what should always be considered in regards to a pre-hearing procedure or order

the effect it will have on a timely resolution

Historically, courts used lengthy pre-hearing procedures but tribunals

did not

Advantage of tribunals not having extensive pre-hearing procedures

process simple cases quickly

Possible negative effects resulting from lack of pre-trial hearings

possible unfairness
possible adjournments once hearing starts
unnecessarily long and complex proceedings

Purposes of tribunals use of pre-hearing procedures

clarify or resolve issues

promote settlement

prepare case for presentation at hearing

T/F: pre-trial hearings must ALWAYS be initiated by the tribunal

false, some may be initiated by the parties

Procedural fairness requires anyone impacted by a proposed decision must be given

notice of intended decision and opportunity to challenge it

First action taken by a tribunal once a person commences a tribunal proceeding

give notice to anyone who might have a right to paticipate

Necessary parties always includes

organizations and/or individuals most directly affected by the decision

At a minimum the hearing notice must state

date, time, location
purpose
information about the hearing/pre-heairng
steps that interested person must take to participate

SPPA warning in hearing notice states that what could happen if the party does not attend tribunal hearing

tribunal may proceed in the person’s absences and need not give any further notice about what happens

Party status in a tribunal hearing established in what ways

enabling statute
nature of issues to be addressed
legal test

General legal test to met to obtain party status

individual must demonstrate a significant interest in the outcome of the hearing

Intervenor

person who may be adversely affected so is allowed to participate but does not have the full rights of those with party status

The SPPA does or does not grant Ontario tribunals the right to grant intervenor status

does not

Why might it be important to allow intervenor status in a Charter case

Charter decisions tend to have a substantial effect on people other than the parties

Two questions to ask to determine if Ontario Tribunal has right to grant intervenor status

does tribunal statute grant the tribunal the right to grant intervenor status

what factors should be considered to grant status on on the scope of participation

Common factors considered in granting intervenor status and scope of status

nature of the case
nature of person’s interest
extent to which person is impacted
likelihood person can make useful contribution
will person’s involvement will cause injustice to immediate parties, undue expense, undue delay
whether charter issue, systemic issue, or human rights issues are involved

Rights commonly attached to party status

disclosure of evidence

to give evidence

to call witnesses

to cross-examine

to make submissions/participate in final argument

to appeal decision or apply for JR

Pre-hearing conferences allow tribunals to

make procedural orders

obtain agreements

promote settlement

allow hearing to run smoothly

Obligations of parties at PHC

must have authority to make or accept settlement offers

be prepared to set hearing/disclosure dates

be prepared to articulate issues

provide a witness list

Settlement portions of PHC can be _ from _ portions

severed; procedural

Tribunal normally requires the parties to do what before hearing begins

disclose evidence they will present

Section 5.4 of SPPA

permits tribunal to order various forms of disclosure

6 forms of disclosure

exchange of documents

oral/written questions

witness statements

expert witness reports

access to other relevant evidence

Witness statements do what

set out testimony the witness is expected to give at hearing

Timing of disclosure is determined by

statue

tribunal rule

requirements set out in notice of hearing

discussion at PHC

by request through a motion

Does disclosed evidence become part of the record

some tribunals leave it to the member

some tribunals have rules that it automatically becomes part of the record

If the tribunal rules are unclear about whether or not evidence becomes part of the record, one should

consider bringing a motion for directions on the issue

Ontario SPPA and particulars

allows tribunals to order details to explain grounds for a party’s case

Two legal issues for tribunal members with respect to particulars

should particulars be used to help parties plead their case or become part of the record

should particulars be binding on the party who offered them

Advantages of settling a dispute before a tribunal hearing

can settle case on their own terms (flexibility)

cost savings

Three circumstances where a tribunal may reject a settlement and proceed to trial

settlement doesn’t safeguard public interest
only some parties enter into a settlement but not others (partial settlement)
settlement is contrary to interests of other parties

Three basic ways tribunals can encourage parties to settle

orders for disclosure

setting a firm hearing date

keep adjournments short and for a specified time period

Affidavit evidence

sworn statement setting out the facts in support of the request being made on motion

Motion for directions

motion to seek clarification of a procedural matter

Motions commonly brought

motion for directions

motion for summary judgment

motion to determine a jurisdictional issue

motion to decide a constitutional question