Tribunal Procedures During Hearings

• Author: Liz Nastasi/Deborah Pressman/John Swaigen
• Pages: 219-244

10

Tribunal Procedures

During Hearings

Learning Outcomes

After reading this chapter, you will understand

• the differences bet ween an oral hearing, an

electronic hearing, and a written hearing;

• the advantages and disadvantage s of each of these

hearing formats;

• the roles of various participants in a hearing; and

• the stages of a hearing and the procedures usually

followed at each stage.

Introduction 220

Hearing Formats 220

Oral Hearings 220

Electronic Hearings 221

Written Hearings 222

Choice of Hearing Format 223

Procedures in an Oral or Electronic Hearing 226

Procedures in a Written Hearing 226

Participants in the Hearing and Their

Roles 226

The Parties 227

Intervenors 228

Representatives 228

Witnesses 230

Tribunal Staff Providing Administrative

Support 230

Agency Counsel and Tribunal Counsel 230

The Court Reporter and Recordings 231

The Adjudicator 232

Hearing Procedures 233

Introductory Remarks 233

Preliminary Matters 234

Hearing of the Case on the Merits 237

Consultation with Tribunal Counsel 240

Chapter Summary 242

Key Terms 242

Cases to Consider 243

Review Questions 243

Exercises 244

Further Reading 244

219

Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.

220 PART II ADVOCACY

[I]t is of fundamental importance that justice should not only be done, but

should manifestly and undoubtedly be seen to be done.

Lord Hewart in R v Sussex Just ices, [1924] 1 KB 256 at 259

Introduction

Like pre-hearing procedures, the conduct of hearings varies greatly among tribunals.

Some of the differences flow from statutes governing particular tribunals, while others

reflect the tribunal’s preference for more formal or less formal procedures, or the

complexity of the cases brought before the tribunal. Examples of differences in hearing

procedures include the following:

• Most tribunals hold their hearings in public; a few hold them in private.1

• Some tribunals follow the strict rules of evidence established by the courts;

others provide much greater latitude in the kind of information that the parties

may present and the evidence they may admit and consider.

• Some tribunals require witnesses to give testimony under oath; others do not.

• Some tribunals permit intervenors and the participation of other interested

parties; others do not.

Even within a tribunal, the conduct of hearings may vary, depending on the nature

of the issues and the number and sophistication of the participants.

Hearing Formats

There are three possible formats for a hearing: oral, electronic, and written. The advan-

tages and disadvantages of each are described in the following sections.

Oral Hearings

In an oral hearing, all the participants are physically present in the same place,

receiving the same information at the same time. This offers several advantages, in

particular:

• Oral presentation of arguments and testimony reduces the need for

documentation and therefore may save preparation time and costs.

• Communication is direct and efficient.

• The physical presence of participants allows the tribunal, parties, and

representatives to assess the credibility of parties, witnesses, and

representatives, and allows parties and representatives to observe the

tribunal’s responses.

• Procedures such as cross-examination, presentation of arguments, and

responses can be carried out more efficiently than in other hearing formats.

1 For example, the Refugee Prote ction Division of the Immi gration and Refugee Board of Canada h olds hearings in

private to protect the a pplicant for refugee status, w hose life, because of the nature of the cl aim, might be at risk;

keeping the hearing pri vate provides safety.

oral hearing

a hearing in which all the

participants are physically

present in the same place,

receiving the same information

at the same time

Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.