1. BCTA 308:
Administrative Law
Chapters 10, 11 & 12 Administrative Law,
Principles & Advocacy
Advocacy at Tribunals – Procedures During the Hearing

2. So…Into the Courtroom We Go
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3. 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:
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4. 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)
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5. But Wait…What Type of Hearing?
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6. 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
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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.
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.
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8. 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
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9. 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
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10. 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 notes
3. Listening to argument and examining cases
4. Making a fair, and reasoned decision that applies the
facts to the law and merits of the case
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11. 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/remarks
2. Calls the case, names the parties and calls them
forward
3. Describes the case. Asks if there are any pre-hearing
submissions
4. Describes the hearing process, giving evidence, cross
examination, closing submissions
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12. Adjudicators have an important role to play
The adjudicator usually follows a process similar
to this:
Functions during the hearing may include:
1.
2.
3.
4.
5.
6.
Dealing with any pre-hearing motions
Making evidentiary decisions as issues arise
Reminding the parties what the central issues are
Dealing with conduct issues
Keeping track of exhibits as they are admitted
Questioning witnesses, usually after they have been
examined and cross examined…remember, this is not
just adversarial, it is inquisitorial
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13. 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.
2.
3.
4.
Hearing submissions about costs
Thanking the parties for attending
Advising them when they can expect a decision
Describing the process if a party disagrees with
decision
5. Sometimes, an oral decision will be given, followed
by a written order
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14. Adjudicators have an important role to play
The adjudicator usually follows a process
similar to this:
Functions after the hearing may include :
1.
2.
3.
4.
5.
Speaking to tribunal counsel about legal issues
Review the law so it can be applied correctly
Re-convene the hearing if important info is missing
Providing a draft decision for review
Writing a decision with clear reasons
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15. 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, weight
2. The order and manner of witness examination,
examination in chief, cross examination and reply
3. Expert witnesses
4. Handling objections
5. Closing submissions
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16. The evidence begins
Phase
Preliminary
Issues
Purpose
Procedural issues
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17. The evidence begins
Phase
Preliminary
Issues
Opening
Statements
Purpose
Procedural issues heard before the facts are given
Where you are going and what you need to prove
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18. The evidence begins
Phase
Preliminary
Issues
Purpose
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
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19. The evidence begins
Phase
Preliminary
Issues
Purpose
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
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20. The evidence begins
Preliminary Issues
1. Adjournment request, just received disclosure, witness
is sick
2.
3.
4.
5.
Jurisdictional issues
Clarification of process
Request to exclude witness
Preliminary motions, strike pleadings, constitutional
question
6. Requests for disclosure
7. Request for special hearing block, hearing closed to
public
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21. The evidence begins
Opening Statements
1.Optional, usually done before you examine first witness
2.No more than 90 seconds
3.Give judge sense of where you are going, what you hope
to prove
4.Gives overview of issues
5.Details for adjudicator what order you are expecting
6.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
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22. The evidence begins – Fact Finding
Pattern of Question and Answers
Question
Examination in
Chief
Purpose
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.
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23. The evidence begins – Fact Finding
Pattern of Question and Answers
Question
Examination in
Chief
Cross
Examination
Purpose
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.
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.
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24. The evidence begins – Fact Finding
Pattern of Question and Answers
Question
Examination in
Chief
Cross
Examination
Re-Examination
Purpose
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.
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.
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.
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25. We are almost done
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.
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26. We are almost done
Closing Submissions
1. 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.
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27. 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.
2.
3.
4.
Statutory Powers Procedure Act
Decisions from reviewing courts
Their enabling statute
Their Rules of Practice and Procedure
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28. Tribunals have the Power to Control their Process
Statutory Powers Procedure Act – Name the Section!
1. Power to prevent an abuse of process
2. Power to make inquiries
3. Power to ask a court to commence contempt
proceedings
4. Power to bar an incompetent representative
5. Power to order costs
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29. 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 summonses
8. Power to examine witnesses
9. Power to make rules
10.Power to order disclosure
11.Power to hold closed hearings
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30. The tough work is done. Where to next??
Next Week…Conduct Outside the Hearing
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