RUNNING A FAIR HEARING
Essential Information for Tribunal Members & Arbitrators
WEDNESDAY, FEBRUARY 24, 2010
9:00 Announcements
Understanding the Legal Framework That Governs Administrative Hearings
David A. Wright
Interim Chair, Human Rights Tribunal of Ontario
- What is fair?
- elements and scope of the duty of procedural fairness in relation to hearings
- is efficiency one aspect of fairness?
- is the content of the duty of fairness different in arbitrations? In written hearings? - Sources of fairness doctrine
- leading cases you should know about
- rules of procedure of the tribunal
- the statute that creates your tribunal
- statutes of general application such as Ontario’s SPPA
- rules of evidence - What does the right to be heard mean in practice and at law, in the tribunal context?
- notice
- disclosure and knowing the case to be answered
- requirements applying to oral hearings
- fairness regarding evidence and submissions - The rules of evidence: how far do they apply?
- The intersection between a tribunal’s rules and the duty of fairness
- The appropriate role of tribunal staff and counsel at and in preparation for a hearing
- should staff experts be sitting through hearings?
- can or should you make them a party?
- counsel vs. prosecutors/investigators - How pro-active can and should the tribunal be?
- what are the legal limits?
- the adjudicator as inquisitor: how many questions can you ask, and of what kind?
- inquisitorial vs. adversarial processes
- the adjudicator as mediator: what are the benefits and dangers, where the panel is both determining and resolving a dispute?
- ethical and legal implications of the interventionist tribunal - Addressing fairness challenges
- When will failures of procedural fairness lead to an unfavourable result on judicial review?
10:15 Networking Refreshment Break
Impartiality and Cultural Sensitivity
Peggy J. Blair, LL.D.
Barrister & Solicitor, Former Deputy Chief Adjudicator, Indian Residential Schools Settlement Process
Pamela Chapman
Arbitrator & Former Vice Chair, Ontario Labour Relations Board
- Impartiality of the adjudicator
- what will and won’t be considered bias?
- common mistakes that will lead to a reasonable apprehension of bias
- actual vs. perceived bias
- what kinds of past contact with a party will create a conflict of interest or a reasonable apprehension of bias?
- disclosing past contacts with parties, witnesses or counsel
- examples from the case law
- recognizing bias in yourself and your fellow panelists
- what to do when you identify bias in yourself or a colleague
- do you represent the constituency or interest group from which you were appointed?
- cultivating the “judicial mind” and the “distance of the bench”
- advice for panelists who were previously advocates and expert witnesses
- dealing with tenuous allegations of bias that are made as a stalling or strategic tactic by counsel
- should the adjudicator speak to the media?
- tips on phrasing questions - Avoiding exparte communications, or the perception of them
- should you eat meals or have coffee with counsel when hearing a matter out of town?
- can you have a casual conversation with one lawyer outside the hearing room? - How class or educational disparity between parties and adjudicators can influence the fairness of a hearing
- Keeping moral values out of the hearing room
- Influences that should not come into discussions among the panel
- Identifying occasions when the tribunal should include Aboriginal consultation
- Cultural sensitivity: boards in a multicultural society
- swearing in witnesses
12:00 Networking Luncheon for Delegates and Speakers
The Nuts and Bolts of Running the Hearing
Afternoon Team Leader:
James A. Ogilvy, PhD
Former Member, Canadian International Trade Tribunal
Afternoon Presenters:
Guy Dufort
Arbitrator
Athanasios Hadjis
Former Vice-Chairperson, Canadian Human Rights Tribunal
Planning and Preparing for the Hearing
- Scheduling the hearing
- do you need to canvass the parties and counsel about potential dates? - Questions to ask in advance to ensure the hearing will run smoothly
- Out of town and off-site hearings
- room layout and space requirements - Special considerations where there a panel of adjudicators
- Instructing staff who will be planning the logistics
- estimating hearing time
- electronic and a/v requirements of the tribunal and parties
- will the hearing be public or private?
- anticipating public participation if any
- electronic media coverage of the hearing if any
- security of persons, information and personal property
- accommodation of special needs
- will you need a breakout room, and where should it be? - The role of paralegals
- Notice of the hearing
- will public notice by way of advertisement be necessary?
- use of web sites
- proof of service
- protecting the interests of third parties
- public participation
- standing before tribunals
- special concerns for public-interest tribunals
Effective Use of Pre-Hearing Conferences
- Why and how pre-hearing conferences can be effective
- Who should run them
- board counsel? one of the adjudicators? someone else? - Use of teleconferences and videoconferences
- Setting an appropriate timetable
- written or oral argument, and provision for rebuttal of written arguments
- timely filings of materials - Setting the ground rules
- Lists of exhibits, witnesses and undertakings
- Ensuring the proper parties are involved and have received notice
- Eliminating as many potential objections and procedural motions as possible
- preventing counsel from unnecessarily delaying the proceedings - Subpoenas
- when should they be used?
- authority for issuance
- who prepares and serves them: the tribunal or the parties? - Disclosure
- getting parties to do what they’re supposed to do
- deadlines for exchange of evidence
- making sure delays don’t prejudice one of the parties
- disclosure issues for commercial arbitrations - Narrowing and clarifying the issues
- who gets to frame them: you or the parties?
- encouraging admissions - Encouraging mediation or med-arb and settlement
- Dealing with preliminary motions at pre-hearings
- Handling requests for intervener status
- written or oral submissions?
- time limits
- intervener funding - Case management for commercial arbitrations
Expeditious Handling of Preliminary Motions
- How much do you need in the way of submissions?
- What to do if a constitutional question is raised
- jurisdiction
- notice - Finding the time you need to sort out the issues
- Asking for more information or argument
- Making sure preliminary and procedural matters don’t take up the entire allotted hearing time
- working with your panel - Dealing with jurisdictional issues
- can the tribunal raise this on its own motion? - Oral vs. written rulings on preliminary motions
- Publication bans and confidentiality orders
- Requests for in camera hearings: what is the standard for granting such requests?
- the consequences of a misstep in this area - Exclusion of witnesses
- Getting appropriate assistance from board counsel
Conducting the Hearing
- Your introductory remarks: what should be covered?
- Parts of a hearing
- opening the hearing and setting the stage
- explaining the process to the parties and observers
- oaths and affirmations if applicable
- order of proceedings
- understanding the rules for examination, cross-examination and re-examination - Conforming to the culture of the tribunal and the style of hearing to which counsel are accustomed
- Dealing with advocates
- understanding the difference between lawyers and agents, and the procedural ramifications that follow - Dealing with witnesses
- swearing or affirming witnesses
- what can and should you do if a witness is subpoenaed but does not show up?
- recalling witnesses
- instructing witnesses (and their counsel) whose testimony or cross is interrupted by a break
- qualifying expert witnesses
- dealing with witnesses of questionable competency to testify - Dealing with interpreters
- how do you know whether an interpreter is needed?
- swearing in interpreters
- ensuring the interpreter is qualified and objective
- what do you do if you get a long answer and a short interpretation, or vice versa?
- what happens if the interpreter’s schedule takes him or her away from the hearing?
- do you address questions to the interpreter or the witness? - Dealing with interveners
- ways to ensure that interveners perceive that the hearing is fair - Media access to the hearing
- what to do before the reporter starts taking notes
- what are the tribunal’s powers?
- what level of access does the media have to evidence and testimony?
- can reporters record in the hearing room?
- can photographs take pictures in and outside the hearing room or facility?
- transparency of the proceedings
- “public record” nature of proceedings - Keeping track of documents and other objects in evidence
- marking exhibits
- expert reports
- the importance of the record
- tips for note-taking
- using your note-taking to control the pace of the hearing
- note keeping where an appeal is possible vs. where no appeal is available, and where there is or is not a transcript - When should you consider adjourning for a mid-hearing mediation?
- What do you do during the hearing if you think counsel or the parties are not addressing the issues?
- considerations for public-interest tribunals - Complex hearings
- multiple parties
- where two tribunals are holding joint hearings
- interjurisdictional joint hearings
- statutory authority
- lawyers’ rules of professional conduct - Keeping the hearing on schedule without creating procedural unfairness
Dealing with Objections
- Why lawyers make objections
- Options for the tribunal where there is no appeal from the hearing: can you mediate process disputes?
- Typical types of objections you may encounter
- Ruling on objections
- Avoiding the yo-yo effect where a witness is repeatedly asked to leave the hearing room while objections are argued
- What can and should you do if counsel does not object to something that should not be happening?
- why and how to recognize and neutralize improper questions on re-examination
5:00 Course Adjourns
THURSDAY, FEBRUARY 25, 2010
9:00 Keeping Control of the Hearing & Facing the Challenges of Dealing with Unrepresented or
Underrepresented Litigants
Morning Team Leader:
Douglas Ruck, Q.C.
Special Advisor to the Chair, Canada Industrial Relations Board
Morning Presenters:
Bob Fitches
Police Discipline Adjudicator
Mark Hart
Vice-Chair, Human Rights Tribunal of Ontario
- Taking control from the outset – and keeping it
- tips on setting the ground rules - How the tribunal’s demeanor can influence the conduct of the parties and counsel
- effective use of the formality of the process
- keeping your cool
- is it appropriate to use humour to attempt to put parties at their ease?
- how to behave if one of the counsel before you is a friend - Balancing control with ensuring parties have their say
- Tips and traps for cutting off irrelevant or prejudicial evidence
- Dealing with the out-of-control party or witness
- Dealing with diffi cult, unruly or intimidating counsel
- appropriate use of “off the record” discussions
- defusing hostility among parties or counsel - Controlling the behaviour of observers to the hearing
- what to do when emotions are running high
- protesters
- dealing with the rowdy or mentally unbalanced observer - Keeping a multi-person panel united with respect to procedures
- Making sure the parties don’t take control of the hearing
- how to maintain order without appearing despotic
- can the panel question the number and nature of witnesses to be called, or do the parties have total control over their witness list?
- recognizing and dealing with game-playing on the part of counsel
- reasonable vs. unreasonable requests for adjournments to prepare for cross-examination
- dealing with repetitive submissions
- when can the adversarial system go overboard?
- tips for keeping counsel on track - Ensuring all the relevant evidence is adduced
- Keeping within the allotted hearing time
- when should you allow the hearing to go longer?
- when can you refuse to hear witnesses?
- can you switch to a written hearing midstream? - Dealing with requests for adjournments and stays of proceedings
- alleged disclosure failures
- granting adjournments with conditions - Appropriate use of the tribunal’s authority
- Judicious use of the civil contempt sanction, if available
- Special issues regarding public participation in the hearing
- chairing the “town hall” type of hearing
Facing the Challenges of Dealing with Unrepresented or Underrepresented Litigants
- How much help, and of what kind, can you give to the unrepresented party?
- How to avoid descending into the arena
- Special issues where one party is represented and one is not
- or where one party is competently represented and one has incompetent or unreasonable representation
- or where one party is unrepresented and the other is incompetently represented
- how much assistance can you give an inexperienced counsel? - Keeping it fair
- Respecting experienced counsel without appearing biased
- How tribunal staff can help
12:00 Networking Luncheon for Delegates and Speakers
Mock Hearing Demonstrations and Discussion
Afternoon Team Leader:
Karen Bock, PhD
Partner, Davis LLP, Toronto
Afternoon Presenters:
Judith Allen
AIM (Arbitration Investigation Mediation)
Robert Monti
Partner, Nelligan O’Brien Payne LLP
For the final afternoon, well-known arbitrator Judith Allen will play the role of adjudicator and the other two presenters will play the roles of opposing counsel,
as the team acts out a variety of challenging situations that may arise in a hearing. There will also be the opportunity for Q&A and class discussion.
4:00 Course Concludes