BCTA 308:Administrative Law

Chapters 10, 11 & 12 Administrative Law, Principles & AdvocacyAdvocacy at Tribunals – Procedures During the Hearing

So…Into the Courtroom We Go

2

But Wait…What Type of Hearing?

Different agencies allow different types of hearings, depending on a number of factors:

•The distance of the parties to the court•The cost and timeliness of the proceeding•The format that would allow the most fairness•The necessity of public access to a hearing

Adjudicators sometimes allow input on the type of hearing, and will deal with submissions by the parties in a pre-hearing conference:

3

But Wait…What Type of Hearing?

Hearings can Held in Several Formats:

• Section 5.2 of Ontario SPPA allows tribunal to hold an electronic hearing unless prejudice arises

• An oral in-person hearing is the traditional method

• An electronic hearing through videoconferencing or telephone is becoming more common

• A written hearing in which the evidence is presented to the parties and adjudicator in written form (not suitable when issues of credibility exist)

4

But Wait…What Type of Hearing?

5

But Wait…What Type of Hearing?

Written Hearings are Special:

• Notices are sent out to parties, indicating next steps and deadlines

• Applicant is required to submit documents and argument first

• After deadline, respondent is asked to comment and provides their evidence and argument

• Sometimes there is a need for the applicant to reply

• The tribunal then makes its decision, and sends it to the parties

6

Who gets to take part in the proceedings

It’s not all up to you, each Board, Agency, Tribunal and Commission has its own ways of doing business.

Who Has Standing:

This is also universal, the agencies enabling statute will determine jurisdiction, and who has a right to participate. For instance, under the Residential Tenancies Act the parties are the landlord and the tenant, and in a limited circumstance, a prospective tenant or a former landlord.

7

Who gets to take part in the proceedings?

It’s not all up to you, each Board, Agency, Tribunal and Commission has its own ways of doing business.

Why is Standing Important:

Only parties with standing have a right to:

• Give evidence• Make submission• Cross examine witnesses• Receive a copy of the decision• Review or appeal

8

Agencies have counsel for 2 reasons

Depending on the type of agency, there is usually counsel for the agency providing one of two functions, or both:

Functions may include:

1. Presenting a case to the tribunal on behalf of a party or society in general, in an agency that acts as a prosecutor. They act for agency, not tribunal.

2. Providing legal advice to the members of the agency

9

Adjudicators have an important role to play

Depending on the type of agency, the adjudicator has a central role in having the matter resolved fairly.

Functions may include:

1. Establishing procedures for conduct that are fair and efficient

2. Listening to evidence, taking notes3. Listening to argument and examining cases4. Making a fair, and reasoned decision that

applies the facts to the law and merits of the case

10

Adjudicators have an important role to play

The adjudicator usually follows a process similar to this:

Functions at the start of the hearing may include:

1. Opening preamble/remarks2. Calls the case, names the parties and calls

them forward3. Describes the case. Asks if there are any pre-

hearing submissions4. Describes the hearing process, giving

evidence, cross examination, closing submissions

11

Adjudicators have an important role to play

The adjudicator usually follows a process similar to this:

Functions during the hearing may include:

1. Dealing with any pre-hearing motions2. Making evidentiary decisions as issues arise3. Reminding the parties what the central issues are4. Dealing with conduct issues5. Keeping track of exhibits as they are admitted6. Questioning witnesses, usually after they have

been examined and cross examined…remember, this is not just adversarial, it is inquisitorial

12

Adjudicators have an important role to play

The adjudicator usually follows a process similar to this:

Functions at the end of the hearing may include :

1. Hearing submissions about costs2. Thanking the parties for attending3. Advising them when they can expect a

decision4. Describing the process if a party disagrees

with decision5. Sometimes, an oral decision will be given,

followed by a written order

13

Adjudicators have an important role to play

The adjudicator usually follows a process similar to this:

Functions after the hearing may include :

1. Speaking to tribunal counsel about legal issues

2. Review the law so it can be applied correctly3. Re-convene the hearing if important info is

missing4. Providing a draft decision for review5. Writing a decision with clear reasons

14

The evidence begins

Chapter 11 in the textbook deals with issues of witness examination and evidence. You should have dealt with this in advocacy and evidence law, but you must be familiar with:

1. Rules about evidence, admissibility, weight2. The order and manner of witness

examination, examination in chief, cross examination and reply

3. Expert witnesses4. Handling objections5. Closing submissions

15

16

Phase Purpose

Preliminary Issues

Procedural issues

The evidence begins

17

Phase Purpose

Preliminary Issues

Procedural issues heard before the facts are given

Opening Statements

Where you are going and what you need to prove

The evidence begins

18

Phase Purpose

Preliminary Issues

Procedural issues heard before the facts are given

Opening Statements

Where you are going and what you need to prove

Fact Finding Testimony is presented, cross examined and re-examined

The evidence begins

19

Phase Purpose

Preliminary Issues

Procedural issues heard before the facts are given

Opening Statements

Where you are going and what you need to prove

Fact Finding Testimony is presented, cross examined and re-examined

Closing Submissions

Where you convince the court, based on what has been seen and heard, to grant an order in your favour

The evidence begins

Preliminary Issues1. Adjournment request, just received disclosure,

witness is sick

2. Jurisdictional issues3. Clarification of process4. Request to exclude witness5. Preliminary motions, strike pleadings,

constitutional question6. Requests for disclosure7. Request for special hearing block, hearing

closed to public

20

The evidence begins

21

Opening Statements1.Optional, usually done before you examine first

witness2.No more than 90 seconds3.Give judge sense of where you are going, what you

hope to prove4.Gives overview of issues5.Details for adjudicator what order you are expecting6.Time to refer to legislation specifically and on what

authority you are asking for the order i.e. eviction based on Section 62 notice for damages

The evidence begins

22

Pattern of Question and Answers

Question Purpose

Examination in Chief

Representative for one side asks questions of its witnesses, using very open-ended questioning. Focus on the “WHO, WHAT, WHEN, WHERE and WHY”. You cannot lead a witness to the answer.

The evidence begins – Fact Finding

23

Pattern of Question and Answers

Question Purpose

Examination in Chief

Representative for one side asks questions of its witnesses, using very open-ended questioning. Focus on the “WHO, WHAT, WHEN, WHERE and WHY”. You cannot lead a witness to the answer.

Cross Examination

Representative for other side gets to ask them questions about evidence just given, drawing out inconsistencies, contradictions and lies. Cross examination questions can be leading, seeking either “YES” or “NO” as an answer.

The evidence begins – Fact Finding

24

Pattern of Question and Answers

Question Purpose

Examination in Chief

Representative for one side asks questions of its witnesses, using very open-ended questioning. Focus on the “WHO, WHAT, WHEN, WHERE and WHY”. You cannot lead a witness to the answer.

Cross Examination

Representative for other side gets to ask them questions about evidence just given, drawing out inconsistencies, contradictions and lies. Cross examination questions can be leading, seeking either “YES” or “NO” as an answer.

Re-Examination

If witness was damaged or less than clear in cross examination, representative whose witness it is can ask for clarification or expansion of evidence given in order to rehabilitate testimony.

The evidence begins – Fact Finding

Closing Submissions• Time when everything is tied together• Sometimes called closing argument or summation• Where you try to convince the Court, based on

what they have heard and seen, to do something.• Time to ask for the order and be specific, whether it

be termination, rent, money, conduct conditions, costs, interest, compensation for damage etc.

• Ask the adjudicator for written reasons if you wish to have more than a bare-bones order.

25

We are almost done

Closing Submissions1. Recite “briefly” the major issues you believe you have

proven through your evidence, or through the cross examination of the other side’s witnesses.

2. Describe the section of the statute that contains the remedy or relief for which you applied.

3. Try to superimpose the facts you feel you’ve proven, to the section of the law on which you are relying. Talk about public policy, the big picture.

4. Use court decisions, preferably binding ones from appellate courts, to show the adjudicator how Courts have dealt with the issue, and what decisions might be binding on them, requiring the granting of order you are seeking.

26

We are almost done

Tribunals have the Power to Control their Process

While tribunals are not courts with inherent power, it is long established that they have rights to control their process, within reason. This power comes from many places:

1. Statutory Powers Procedure Act2. Decisions from reviewing courts3. Their enabling statute4. Their Rules of Practice and Procedure

27

Tribunals have the Power to Control their Process

Statutory Powers Procedure Act – Name the Section!

1. Power to prevent an abuse of process2. Power to make inquiries3. Power to ask a court to commence

contempt proceedings4. Power to bar an incompetent

representative5. Power to order costs

28

Tribunals have the Power to Control their Process

Statutory Powers Procedure Act – Name the Section!

6. Power to dismiss if frivolous or vexatious

7. Power to issue summonses8. Power to examine witnesses9. Power to make rules10.Power to order disclosure11.Power to hold closed hearings

29

The tough work is done. Where to next??

Next Week…Conduct Outside the Hearing

30