How to Prepare for an Ontario Tribunal Hearing - Administrative Law

Updated November 2016

This How-To Brief outlines the steps to take to prepare for a tribunal hearing in Ontario.

1Gather what you need


  • Read the Statutory Powers Procedure Act (SPPA): It applies to many provincially regulated tribunals.
  • Read ss. 3 and 32 of the SPPA: Determine if the SPPA applies to the tribunal. Section 3 excludes some tribunals, including all those that make decisions without an oral hearing. Section 32 provides that express provisions in other statutes or regulations may prevail and apply despite the provisions of the SPPA.
  • Meet your client and request that he or she bring documents that establish the facts related to the complaint.
  • Determine which tribunal has jurisdiction to hear the complaint by reading its empowering legislation. There are over 200 provincial tribunals in Ontario, including the Human Rights Tribunal of Ontario (HRTO), the Ontario Securities Commission, and the Workplace Safety and Insurance Board.
  • Become familiar with the tribunal's website.  It generally contains a database of previous decisions, rules of procedure, practice directives, guides, and frequently asked questions. For example, an Applicant's Guide to Filing an Application with the HRTO is available on the HRTO's website. It provides information on how to prepare a complaint and information on the HRTO and how it processes the complaints it receives.

2Review the tribunal's jurisdiction


  • Consider the following:
    • What is the time limit for making a complaint to the tribunal?
    • Has another proceeding such as a grievance or a civil claim been started which is based on the same issues you intend to bring before the tribunal?
    • Is the tribunal authorized to make the order desired by your client? Can the tribunal order a financial award or make a future compliance order that addresses systemic issues? v
    • What facts and evidence are necessary to justify that order?
    • What evidence is admissible and what is the procedure for tendering evidence? Tribunals strive to proceed informally and expeditiously.
    • What is the burden of proof? Tribunals apply the civil standard of proof, which is proof on a balance of probabilities.
    • Read Cuddy Chicks Ltd. v. Ontario (Labour Relations Board): Does the tribunal have authority to address Charter arguments, if you will be raising one?
    • Read s. 17.1 of the SPPA: Does the tribunal have jurisdiction to order costs?
    • Does the tribunal offer mediation services?
  • If you have questions on procedure, call a registry officer.
  • Research the tribunal's technological capabilities: Does the tribunal offer electronic hearings?  Can a witness testify via video conference or teleconference?  Can parties present evidence on an iPad?  

3 Prepare and serve the initiating process


  • Determine the tribunal's initiating process (i.e., the document that starts the proceeding).
  • Prepare the initiating process. For example, at the HRTO, the initiating process is an application. It can be completed on the HRTO website with the Smart Form Application Form and can be emailed directly to the HRTO.
  • Consider the tribunal's rules on service and filing.
  • Inform the tribunal of required accommodations.
  • Read s. 6 of the SPPA: Most tribunals are required to give the parties reasonable notice of the hearing date.
  • Read s. 10.1 of the SPPA: It outlines the parties' participatory rights.
  • Read ss. 11 and 14 of the SPPA: They outline the witnesses' rights.
  • Read s. 16.1 of the SPPA: It states that a tribunal can make interim decisions on motions. Examples of motions include a motion to compel production of documents, a motion to determine the scope of the complaint, and a motion for an adjournment.

4Determine if the disclosure of evidence is required prior to the hearing


  • Read ss. 5.4 and 8 of the SPPA: The purpose of disclosure is to ensure a fair hearing and to ensure that each party knows what the case is all about. There is an ongoing disclosure obligation.
  • Discuss disclosure parameters with opposing counsel.  For example, parties may consent that documents between a specific timeframe are not relevant.
  • Some tribunals allow parties to have an input on disclosure dates.

5Determine if it is necessary to call any witnesses in support of your client's position

  • Consider the following:
    • Do you need to prepare, serve, and file any subpoenas/summonses? Do you have to pay the witness an allowance?
    • Do you need to give the opposing party advance notice of the persons you will be calling to testify? Do you need to submit a will say statement for each witness? What is the procedure for filing one?
    • Will you be calling an expert witness? Does the tribunal have any special rules relating to expert witnesses or expert reports? Does an expert need to prepare a report or can the expert testify without preparing one?
  • Review the tribunal's rules on oral evidence, electronic evidence, and evidence.

6Prepare your written and oral submissions to the tribunal


  • Consider preparing an agreed statement of facts to reduce the time required for the hearing.  This will dispense a party from proving certain facts.
  • Review the tribunal's rules to determine if written submissions are permissible.
  • File relevant case law or previous tribunal decisions. Determine if the tribunal is bound by its previous decisions. Consider filing a joint book of authorities.
  • Determine if the tribunal maintains a book of commonly cited authorities, which obviates the need to file further copies.

7Prepare your documentary evidence


  • Read s. 15 of the SPPA: It outlines what evidence is admissible at the hearing.
  • Determine whether to submit individual documents into evidence or whether documents can be assembled into a document brief (also called a book of exhibits). Consider filing a joint document brief. Determine if original documents are necessary.
  • Make sufficient copies of the document brief for the adjudicator(s), the opposing party, the witness, your client, and the tribunal's registrar.
  • Determine if documentary evidence can be presented electronically at the hearing, for example, by PowerPoint. 

8Prepare your client and your witnesses


  • Prepare your client and your witnesses to give evidence. Ensure that they know the facts and documents. Remind them that the adjudicator(s) will be hearing the facts and reading the documents for the first time. Facts that your client and witnesses know very well and have experienced are new to the adjudicator(s).   Witnesses must be believable, likeable, and trustworthy. Counsel should ask open ended questions with less than six to eight words.
  • Explain the importance of telling the truth and the tribunal's procedures for swearing or affirming a witness.
  • Speak to your client and your witnesses about the possibility of an "exclusion of witnesses" order being made by the tribunal.  If this order is issued, a witness will only be in the hearing room during his or her own testimony and will not be permitted to hear other witnesses' evidence before testifying.
  • Explain to your client and to your witnesses of the limitations on your ability to communicate with them while they are giving evidence.  Explain that you will only be able to answer questions before and after their testimonies (which include examination-in-chief, cross-examination and any re-examinations), not during.
  • Ensure that your client and witnesses know where they are going and what time they are expected to arrive. Explain the layout of the room and the people who will be present.  Consider taking them to the hearing room.  This trip will alleviate a lot of stress.

9Prepare your cross–examination of the opposing party and their witnesses


  • Read s. 23(2) of the SPPA: The tribunal can limit cross-examination.
  • Understand the tribunal's rules of evidence and procedure.  Object if the opposing party is not properly tendering evidence and/or not following procedures. Be prepared to state the basis of your objection and to cite case law.  Anticipate objections:  Prepare a "cheat sheet" listing sample objections on the left and their authorities on the right.

10Attend the hearing


  • Each tribunal's procedure for conducting a hearing is unique. You may wish to attend a hearing in advance to familiarize yourself with the process.
  • Dress professionally and arrive early.
  • Familiarize yourself with the hearing room, the facilities, and the services offered during the hearing. Some tribunals record the hearing.  Some tribunals record the hearing and may be able to email you a transcript of a hearing day on the following day.
  • Explain to the client that the tribunal often reserves its decision. The tribunal will make an order in due course.
  • Once you receive the order, discuss it with your client. Research appeal rights, if necessary.

Resources

  • Robert W. Macaulay, Q.C. & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, looseleaf (Toronto: Carswell, 1991).
  • Robert W. Macaulay, Q.C. & James L.H. Sprague, Hearings before Administrative Tribunals, 3rd ed. (Toronto: Carswell, 2007).
  • Sara Blake, Administrative Law in Canada, 4th ed. (Toronto: Butterworths, 2006).
  • Philip Anisman & Robert Reid, Administrative Law: Issues and Practice (Toronto: Carswell, 1995).
  • Franklin R. Moskoff, ed., Administrative Tribunals: A Practice Handbook for Legal Counsel (Toronto: Carswell, 1989).

Case Law

  • Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 SCR 5.

Statutes