The Conduct of Hearings

• Author: Ed Ratushny
• Pages: 307-354

307

chapter eight

The Conduct of Hearings

A. CONTROLLING PROCEEDINGS

This chapter is a more specif‌ic response to the criticism that the hear-

ings conducted by commissions of inquiry sometimes app ear to be “out

of control.” This probably was the perception of the Canadian govern-

ment when it shut down the Somalia Inquiry and of the Ontario gov-

ernment when it imposed a comparable time deadline on the Cornwall

Inquiry. Reference was made to the “circus” atmosphere ascribed to

some inquiries and to the frustrations expressed by one commissioner.1

He spoke of the “bitter confrontational approach” some parties took to

each other as they were “at each other’s throats.” He felt the inquiry was

“forced . . . to chase down many blind alleys.”

The following passage was quoted in Chapter 1: “At trials, strict rules

of evidence exclude unreliable sources of information, such as hearsay,

speculation, or opinion evidence by non-experts. At public inquiries,

witnesses are relatively free to trash the reputation of others in front of

a large television audience.”2 These comments may describe how some

hearings have unfolded in the past. They are not an accurate descrip-

tion of how hearings should be conducted.

1 See Chapter 5, Section D(1).

2 Bryan Schwartz, “Public Inquiries” in Allan Manson & David Mullan, eds., Commis-

sions of Inquiry, Praise or Reappraise? (Toronto: Irwin Law, 2003) at 445.

308 the conduct of public inquiries

There are a number of reasons why a commission of inquiry may fail

to control its hearings. The terms of reference may be broad and not ad-

equately broken down into manageable subjects for the purpose of the

hearings.3 A commissioner who resolves to “hear everything” may allow

the proceedings to drift into aimless meandering. Since the process is not

adversarial, there are no applicable rules of civil procedure and the strict

rules of criminal evidence do not apply. At the same time, there often

are parties who are adverse in interest, so that adversarial attitudes and

instincts may lurk beneath the surface. Most commissions adopt their

own rules of procedure but these seldom provide much assistance to the

commissioner in controlling the proceedings. The challenge is to impose

discipline on the hearings both in structure and in execution. The com-

missions’ hearings counsel has an important role to play in this respect

but ultimately the responsibility lies with the commissioner.

Commissions of inquiry have broad powers to conduct and control

their proceedings. Section 3 of the Ontario Act states:

the conduct of and procedures to be followed on an inquiry is under the

control and direction of the commission conducting the inquiry.

The Act specif‌ically states that this authority is subject to the rights of

parties and the general requirement that hearings be open to the public.

Most Acts do not have comparable provisions but section 5 of the Nova

Scotia Act provides:

The commissioner or commissioners shall have the same power to en-

force the attendance of persons as witnesses and to compel them to

give evidence and produce documents and things as is vested in the

Supreme Court or a judge thereof in civil cases, and the same privileges

and immunities as a judge of the Supreme Court.

Justice Cory interpreted this provision as suggesting that:

commissions of inquiry have a general power to control their proceed-

ings and are not tied to a narrow interpretation of the enabling statute.4

3 Consider the unfortunate consequences for the Erebus Inquiry discussed in Chap-

ter 6, Section B(3).

4 Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) [1995] 2

S.C.R. 97 at para. 174 [Phillips].

The Conduct of Hearings 309

Since this general power probably arises out of the power to compel

testimony and production, it is equally applicable to all of these Acts.

In any event, Justice Cory added that the “nature and purpose of public

inquiries” required the courts “to give a generous interpretation” to the

general power of commissioners to control their proceedings.5 In addi-

tion to the statutory authority, the terms of reference may authorize

the commissioner “to adopt any procedures and methods that he may

consider expedient for the proper conduct of the inquiry.” This phrase

has become standard in recent federal terms of reference.

Commissions of inquiry are not bound by the rules of evidence, with

some exceptions. For example, section 11 of the Ontario Act provides:

Nothing is admissible in evidence at an inquiry that would be inadmis-

sible in a court by reason of any privilege under the law of evidence.

Exclusion based on privilege is canvassed in Section E below.

However, the inapplicability of most rules of evidence does not mean

that “anything goes.” A commission’s hearings are still restricted in scope

by relevance to the terms of reference. It is not able “to ‘def‌ine its own

terms of reference under the guise of evidential rulings or admissibil-

ity’ and consequently to govern its jurisdiction.”6 The Ontario Court of

Appeal added that to reject reasonably relevant evidence or to accept

evidence that is not reasonably relevant is jurisdictional error.

A commission of inquiry is also bound by the principle of fairness

when considering evidentiary issues. The rejection of relevant evidence

may have such an impact on the fairness of the proceeding as to con-

stitute a breach of that principle.7 Although many specif‌ic rules of evi-

dence are not binding, the y may provide a helpful frame of reference

for assessing fairness in a particular situation. Assessing the admissibil-

5 Ibid. at para. 175.

6 Bortolotti v. Ontario (Ministry of Housing) (1977), 76 D.L.R. (3d) 408 at 417 (Ont.

C.A.) quoting Morden J. in Re Royal Commission into Metropolitan Toronto Police

Practices and Ashton (1975), 64 D.L.R. (3d) 477 at 485 (Div. Ct.) [Ashton].

7 Université de Québec à Trois Rivières v. Larocque, [1993] 1 S.C.R. 471 at 491, Lamer C.J.

writing for himself and La Forest, Gonthier, and Iacobucci JJ., L’Heureux-Dubé J.

delivering separate reasons. Here the arbitrator lost jurisdiction in spite of a very

broad private clause. See also Bond v. New Brunswick (Board of Management) (1992),

95 D.L.R. (4th) 733 (N.B.C.A.), where an arbitrator lost jurisdiction by relying on

hearsay for a serious f‌inding of misconduct.