You only get one chance to make a first impression, as the saying goes. A recent study has confirmed that first impressions are persistent and can be difficult to overcome. The opening statement of the adjudicator and of the parties at the beginning of a hearing is that first impression and will often set the tone for the entire proceeding.
In crafting any communication, the first question to answer is, "who is your audience?" In many cases there are primary and secondary audiences. For an adjudicator, the primary audience is the parties to the dispute. The secondary audience for the adjudicator may be those in attendance at the hearing. If the hearing is recorded or transcribed, the audience may be broader and include a judge in the event of a judicial review of their decision.
For the parties, the primary audience should be the adjudicator. An audience of almost equal importance for each party is the opposing party. Although representatives of each party may have had direct contact prior to the hearing, it is not always the case that parties have had contact with the other side’s representative. Another audience for each representative is their own client. If the hearing is recorded or transcribed, the representatives also have a broader audience, including a judge on judicial review.
The second question to answer when crafting an opening statement is, "what impression do you want to leave with your audience?" An adjudicator will want to convey that he or she is in control of the proceeding and is familiar with the file. The adjudicator will also want to demonstrate that he or she will treat the parties fairly. Each party will want to convey to the adjudicator that they understand their case and that they are organized. The parties’ representatives will also want to convey confidence in their position in the dispute.
Opening Statement by the adjudicator
An adjudicator should start with introducing his or herself and explaining their role in the hearing. The adjudicator should clearly identify who the parties are and the purpose of the hearing. He or she should also identify any preliminary issues that need to be addressed. It is also useful to clearly communicate expectations in terms of the schedule, including when breaks will normally be held. I also state the expectations of the length of the hearing day and ask the parties if there are any accommodations required in terms of ending times (to allow for family-related responsibilities, for example).
With the pervasiveness of smart phones, it is also worth reminding all of those at the hearing that phones should be turned off or put on silent mode. You may save someone the embarrassment of having their phone play the theme from the Exorcist in the middle of the hearing, as happened at the Conrad Black trial.
The Employment Insurance Board of Referees has a sample script for an opening statement that is tailored to their tribunal, but is a useful template for all adjudicators. This tribunal has many self-represented parties and it is suggested that the chair of the panel emphasize the independence and impartiality of the tribunal:
The Board of Referees is an independent, impartial tribunal consisting of three members from the community. We are not employees of the Department. We are trained to provide fair hearings and are knowledgeable in the Employment Insurance legislation. Be assured we have come to the hearing with an open mind; we will treat you fairly and with courtesy and we will make the hearing as informal as possible. We will make an impartial well-reasoned decision based on all of the evidence provided to us while applying the Employment Insurance legislation. …
An adjudicator should always ask the parties if they have any questions about the hearing process after completing the opening statement.
Opening statements by the parties
An opening statement by a party is often called a "road map" of the case. That assumes, of course, that the hearing will unfold in a pre-ordained manner. A hearing is more like a road trip with multiple drivers and a conductor (the adjudicator) who can order a change in direction. I think a better travel analogy is an itinerary – an intended path that may have little side trips and unexpected layovers. And that may be subject to negotiation among family members.
The Justice Education Society of British Columbia has a guide on how to prepare for a hearing and includes the following suggestions on opening statements:
The purpose of the opening statement is to:
- describe your case very briefly;
- tell the adjudicator what remedy, decision, or outcome you are seeking;
- outline the main points of your case; and
- tell the adjudicator what evidence you will be submitting. (You do not actually submit your evidence at this point.)
Opening statements by the parties are not required. As noted in Manpel v. Greenwin Property Management, 2005 CanLII 25636 (ON SCDC) it is usual to allow a party to make an opening statement, if the request is made. In fact, it may amount to a breach of procedural fairness if an adjudicator refuses a party’s request to make an opening statement. In Manpel, the Divisional Court found that preventing a party from giving an opening statement contributed to the overall finding of unfairness of the hearing.
The party that goes second at the hearing has the option of holding off on an opening statement until the commencement of its case. However, it is usually advisable not to do so, since the party will be missing the opportunity to shape how the adjudicator sees the case.
If one party asks to make an opening statement and the other party was not aware that he or she would have such an opportunity, the adjudicator will have to explain what an opening statement is and perhaps provide a short adjournment to allow the unprepared party to draft a brief statement. Otherwise, there may be a perception of procedural unfairness if only one party provides an opening statement.
Opening statements should be brief, generally no more than five or ten minutes. It is open to the adjudicator to tell the parties to keep their opening statements short (see Drzemczewska v. Grigorescu, 2006 CanLII 32426 (ON SCDC) at para. 11). However, an adjudicator should allow a party to address all of the points he or she had set out to address: Gravel v. Canada (Attorney General), 2011 FC 832 at para. 38.
The length of an opening statement also depends on how much the adjudicator can be expected to know about the file. In grievance hearings that I have conducted, I have had a very limited record to review prior to the hearing and appreciated a capsule summary of the evidence to be presented. However, in human rights applications the parties are expected to provide detailed applications and responses, so a summary of the intended evidence does not need to be as detailed.
An opening statement is an opportunity for the parties to narrow the issues before the adjudicator. For example, if a party is dropping issues that it had raised in the originating document, this should be raised in the opening statement. Similarly, if a responding party is dropping one of its objections or is conceding an issue, an opening statement is a good time to do so.
An opening statement can also serve as a vehicle to put the other party on notice of evidence that will be called or positions that will be taken in the proceedings: Plummer v. College of Massage Therapists of Ontario, 2012 ONSC 282. This can protect against claims of procedural unfairness by eliminating claims of surprise or lack of notice.
In Gravel v. Canada (Attorney General), 2011 FC 832, the court noted that it is appropriate for an adjudicator to remind a self-represented party that an opening statement is not evidence, even to the point of interrupting an opening statement. The difference between an opening statement and evidence is not always appreciated by self-represented parties. This is one reason for requiring self-represented parties to testify from the witness chair rather than the counsel table.
If the adjudicator has not asked about any accommodation needs of the parties, the opening statement can be used to alert the adjudicator to any accommodations that might be needed in the hearing, such as witness availability and any time constraints.
Opening statements by the adjudicator and the parties can set the stage for the proceeding to come and alert all participants of the major topographical features along the road. They cannot predict how the hearing will unfold in great detail, however. And that is a subject for another column.