Guidelines for Preparing for a Hearing

Table of Contents

1. Introduction
2. Language and Hearing Site
3. Hearings Procedure
4. Preparing for a Hearing
5. Costs of the Hearing

Introduction

These guidelines are designed to assist individuals or groups who are preparing to present a case before the Tribunal. They are guidelines only.

The main thing to keep in mind is that the Tribunal can only rule on the evidence and submissions that are placed before it. The hearing time and date specified on your Notice of Hearing have been assigned to your case, and it is wise to take the time to prepare and present your case fully and completely so that the Tribunal has the facts and evidence that it needs to make an informed decision.

Language and Hearing Site

Hearings are normally conducted in English in a room provided by the Tribunal or the municipality. If you require French language services or physical accommodation you must inform the Tribunal staff as soon as possible so that your needs can be provided for at the hearing.

Hearings Procedures

Although hearings before the Tribunal are similar to court hearings, they are less formal. Parties appearing before the Tribunal are not required to be represented by legal counsel, but are free to have legal representation, if they so wish. Certain minimum procedural rules apply to hearings before the Tribunal, and it is useful for parties intending to appear before the Tribunal to be familiar with these procedures. (Reference, the Statutory Power Procedure Act)

Appeals are normally heard by a panel of three or more Tribunal members, and presided over by a member assigned by the Tribunal Chair. The panel hearing an appeal has members with background and expertise in the subject matter of the appeal. The main parties to appeals are the person or group appealing, known as the appellant; and the person who made the decision that is under appeal (the municipality, program administrator, marketing board, the Farm Products Marketing Commission, or the Director), known as the respondent.

The order of presentation at most hearings, is as follows:

• The panel Chair outlines the procedures to be followed for the hearing.
• The appellant presents his or her case to the Tribunal panel first. The appellant chooses the manner of presentation of his or her case. This could involve: reading a written presentation, presenting verbal evidence, calling witnesses, and the presentation of documents to the Tribunal. The appellant may wish to outline briefly the matters to be considered by the Tribunal at the beginning of the presentation. Appellants may have someone else act as their spokesperson if they wish (e.g. their lawyer, accountant or other advisers). The object of the appellant's presentation is to present to the Tribunal all of the facts that are relevant to his or her case and to persuade the Tribunal that the appellant's position is the correct one and that his or her request should be granted.
• The respondent has the opportunity to question the appellant, and any witnesses who testify on behalf of the appellant. The Tribunal panel will also have a chance to question the appellant and the appellant's witnesses.
• Following the completion of the appellant's case, the respondent will make its presentation. The appellant will then be given an opportunity to question the respondent and its witnesses. The Tribunal panel will also have the opportunity to question the respondent.
• The appellant will have the opportunity to provide evidence in reply to any new matter that is raised by the respondent. However, it is emphasized that the appellant must try to cover his or her whole case during the initial presentation.
• Following the presentation of evidence by the parties, both sides will be given an opportunity to sum up or present their argument before the conclusion of the hearing.
• When the hearing is complete the parties leave and the Tribunal deliberates the evidence and makes its decision. A written decision, with reasons, is sent to the parties, usually within 30 days of completing the hearing.

So the Tribunal can focus attention on the issues, it is helpful for the respondent and appellant to discuss the case before coming to the Tribunal to determine which issues they agree can be resolved and which issues the Tribunal must rule on.

In appeals under the Drainage Act, the engineer who prepared the report under appeal will be asked at the start of the hearing to provide an overview of the project. This introduces the Tribunal to the project and the issues. Questions of clarification are allowed when the engineer has finished this brief presentation. If assessments are under appeal, the engineer will then be asked to provide the details of how the assessments were calculated. Appellants then present their case as outlined above.

In appeals under the Farm Registration and Farm Organizations Funding Act normally the appellant presents their case to the panel, the panel asks questions and compares the evidence provided to the criteria specified in the legislation and makes a decision. A respondent is not normally present.

If at any point in the hearing, a party is unsure of the procedure to be followed, he or she can ask the Chair for direction.

Preparing For A Hearing

Most people who appear before the Tribunal, find that they are more comfortable and make a better presentation if they take the time to organize their information, documents and witnesses beforehand. It may be useful to write down the points that you wish to cover, or a brief summary of what the case is about, which can be referred to or read to the Tribunal panel at the hearing.

Although the Tribunal has read the materials filed prior to the hearing, you should not assume that the Tribunal panel has any prior knowledge about your case, your operation or the way that your industry operates in relation to your case. It is best to provide as complete a picture of your situation as possible to the Tribunal panel so that it has a full understanding of your circumstances, and what it is that you are requesting.

Every effort should be made to substantiate any facts or statements that you present to the Tribunal. It is better to present the Tribunal with first-hand knowledge or evidence whenever possible. If you are relying on information that someone else has told you that directly concerns your case, bring the person who has direct knowledge of that information to testify. The next best option would be to bring that information to the hearing in a written document signed by that person.

If you have documents that support the case that you are making to the Tribunal, including copies of correspondence, business records, photographs and the like, the Notice of Hearing directs that the parties deliver to each other party one copy of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing as an exhibit and a specified number of copies to be delivered to the Tribunal by a date specified in the notice of hearing. The presentation of the parties may be included if desired. These documents are normally entered as exhibits in the hearing and are left with the Tribunal so make sure you have a copy for yourself that you can take away with you after the hearing. If you bring additional documents to the hearing be sure you have enough copies for the Tribunal and the other parties to the hearing.

If you are bringing expert evidence, either in person or by expert report, tell the other parties before the hearing date and provide them with the expert opinion so they can adequately respond at the hearing without the need to ask for an adjournment.

It is not necessary for you to send in your argument in advance but you can if you wish.

Hearings before the Tribunal are public and the exhibits are available to the public. You should consider the need for confidentiality of the documents you provide. If you have confidential information that is vital to your case you can ask that the confidential information be provided at the hearing "in camera" (everyone but the parties, Tribunal and staff have to leave the hearing room) and that any written confidential information be sealed and put in the file. You will have to persuade the panel that the information is in fact confidential before this privilege is allowed.

Costs of the Hearing

The Drainage Tribunal has the authority to award the costs of a hearing between the parties. Section 98 (11) of the Act specifies what costs the Tribunal can award. The section is as follows:

98. (11) The costs chargeable or to be awarded in any proceedings may include the costs of witnesses and of procuring their attendance, the costs of secretarial staff and such other costs as the Tribunal may direct. R.S.O. 1980, c. 126, s. 98(11).

The Drainage Tribunal does, when it considers it appropriate, award costs of hearings to parties. This means that the municipality may have to pay part of the cost of the appellant or the appellant may have to pay the cost of the municipality depending on the decision of the Tribunal.

For all other Tribunals each party pays their own costs incurred for the hearing.