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When “Your Day in Court” Does Not Include an Oral Hearing

When a party to a proceeding says that they “want their day in court”, an oral hearing is usually what he or she is contemplating. Just ask Conrad Black: Conrad Black v. The Advisory Council for the Order of Canada, 2012 FC 1234. (For commentary on the other aspects of the decision, see here and here.

However, in most cases there is no automatic right to an oral hearing. Procedural fairness does not require an oral hearing in all circumstances. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court stated (at para. 33):

…it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. …

Courts are reluctant to second-guess a tribunal’s decision not to hold an oral hearing and will generally only intervene to prevent manifest unfairness: Xwave Solutions Inc v. Canada (Public Works & Government Services), 2003 FCA 301.

In determining the form of a hearing, the critical question is whether meaningful participation was allowed by the process chosen by the decision-maker.

The assessment of credibility is a common reason for choosing an oral nearing. In Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, a refugee determination case, the Supreme Court agreed that an oral hearing was not always required, but stated that where a serious issue of credibility is involved, “fundamental justice” requires that credibility be determined on the basis of an oral hearing. As stated by Justice Wilson (at para. 59):

I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.

The Ontario Court of Appeal relied on Singh in Khan v. University of Ottawa, [1997] OJ no 2650 in concluding that a law student was entitled to an oral hearing where her credibility was at issue. The student had failed an exam and appealed her failing grade on the basis that her instructor had marked her exam on the contents of three examination booklets while she maintained that she had handed in four booklets.

A tribunal’s statute may dictate the form that a hearing must take. The Ontario Human Rights Code, for example, provides that an Application within the jurisdiction of the Tribunal cannot be “finally disposed of without affording the parties an opportunity to make oral submissions” (section 43).

More recently, amendments to the Corrections and Conditional Release Act have changed hearings of the Parole Board of Canada on some matters from oral to written. The Canadian Bar Association made submissions critical of these changes:

The right to an in-person hearing before the Board is critical to the integrity and transparency of the parole process. At an in-person hearing, the Board can more effectively consider all aspects relevant to public safety. The Board has all accurate and complete information and relevant arguments. If confronted by gaps in the information record, Board members can question both the offender and the parole officer. They can probe beyond the limited issue of a breach of conditions and consider the legally relevant issue of whether the offender’s release represents a risk of re- offending. Credibility can often be determined only by a careful probing of the evidence.

The suspended offender’s opportunity to present their case and receive a fair decision is significantly enhanced at an in-person hearing. The offender learns what the Board members believe the facts to be, and is able to correct them, if necessary, and provide other relevant facts. The offender also hears what the Board’s concerns are arising from the alleged breach and has an opportunity to respond and, if the breach is admitted, provide further explanation.

Hearing the offender in person is an essential element of a fair process and the Board’s ability to fairly assess the risk to the public.

In Raymond v. Canadian Union of Postal Workers, 2003 FCA 418 the Federal Court of Appeal noted that the power in section 16.1 of the Canada Labour Code to “decide any matter before it without an oral hearing” gave the Canada Industrial Relations Board a greater discretion about the form of hearings than it had before (under the former provision which allowed for specific circumstances in which the Board could refuse to hold a hearing); accordingly, the Court must be “more respectful” of the Board’s decisions about holding hearings. The decision to hold a written hearing, the Court held, “is a matter of internal policy that is beyond the scope of judicial review barring exceptional circumstances.”

Similarly, subsection 111(2)(e) of the Ontario Labour Relations Act gives the Ontario Labour Relations Board (OLRB) the power to “accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not”. As stated by Ontario’s Divisional Court in Amalgamated Transit Union Local 113, 2007 CanLII 59152, this means that the manner in which evidence is received by the Board is within its discretion and there is no requirement that evidence be received in the form of oral testimony. The submission of evidence in writing is only circumscribed by the statutory obligation in subsection 110(16) of the Act to give the parties “full opportunity … to present their evidence and make their submissions”.

The Court stated (at para. 146):

I conclude that “full opportunity” to present evidence and make submissions does not entitle a party to command the tribunal’s process, particularly where the Board has been given specific jurisdiction to determine its own practice and procedure. “Full opportunity” must be assessed in the context of the problem under consideration and surrounding circumstances, which have been discussed extensively in these Reasons. The question is whether the Union had sufficient and fair opportunity to present its evidence and make its position clear to the decision-maker through submissions. In the urgency of the situation, I conclude that it did and that there was no failure of procedural fairness on that account.

In Nadeau v. United Steelworkers of America (F.T.Q.), 2009 FCA 100 the Federal Court of Appeal examined the “exceptional circumstances” referred to in the Raymond decision. In this case, counsel for the union member submitted that the issue of credibility of a witness constituted an exceptional circumstance. The Court held that, in the context of a duty of fair representation complaint, credibility issues do not require the Board to hold an oral hearing. The Court noted that credibility issues “almost inevitably arise in antagonistic employer-employee relations” and that the power in the statute to proceed by written submissions would be “rendered completely meaningless and deprived of Parliament’s intended effect” if oral hearings were required whenever credibility issues arose. It is important to note the nature of the inquiry in a duty of fair representation is not the merits of the complainant’s grievance but the union’s decision-making process.

Some tribunals may set out the criteria they will use in deciding whether to grant an oral hearing for example, The British Columbia Workers Compensation Appeal Tribunal (WCAT) has set out the following criteria in its Rules (para. 7.5):

7.5 RULE: WCAT will normally grant the appellant’s request for an oral hearing where the appeal involves a significant issue of credibility, where there are significant factual issues in dispute, and/or where there are other compelling WCAT reasons for convening an oral hearing (e.g. where an unrepresented appellant has difficulty communicating in writing or in English).

WCAT will normally conduct an appeal by written submissions where the issues are largely medical, legal, or policy based and credibility is not at issue.

An earlier version of the WCAT Rules also referred to these additional criteria: multiple appeals of a complex nature and complex issues with important implications for the compensation system.

In Behnke v. Canada (Department of External Affairs), the Federal Court set out l factors for oral hearings of motions in the litigation context (at para. 7):

  • the complexity of the matter;
  • whether the issues raise questions of public interest that are novel;
  • where there is substantial reason for concluding that the applicant cannot adequately make submissions in writing;
  • where the matter is urgent and can be disposed of more expeditiously by way of an oral hearing; and
  • where so many people are interested in the matter that an oral hearing would be less cumbersome than a proceeding in writing.

Complexity is a factor that can cut both ways in deciding whether to have an oral hearing. Conrad Black wanted to convince the Council that no Canadian courts could possibly have returned a guilty verdict on the basis of the facts that were before the American courts. The court noted (at para. 84) that this was “obviously a complex argument to make” and “[c]omplex issues are often better dealt with in writing than orally”.

The ability of the applicant or complainant adequately to make submissions in writing is an important consideration. Conrad Black has no match in the ability to make voluminous submissions, as the court noted: “He has provided the Council with a copy of his book on the subject of his convictions which runs to more than 500 pages”.

When a party is self-represented, the ability to make written submissions is a significant concern. Low literacy has been identified as a concern for access to administrative justice. Leaving aside literacy concerns, self-represented complainants may not be able to articulate their concerns succinctly. It is not uncommon to get voluminous documentation from self-represented complainants, much of it poorly organized and containing information irrelevant to the complaint. In such cases, it may be more efficient to conduct an oral hearing.

What is missing from the analysis of whether to have an oral hearing is an assessment of what we lose by not conducting disputes in person. Written hearings are impersonal. On a practical level, we lose the opportunity to moderate disputes or even mediate or settle them. We also lose a bit of transparency, since a written hearing is not a public hearing in the same sense as an oral hearing. We also lose the informality that can be part of an oral hearing and the humanization of the decision-maker that can result. In addition, an oral hearing can humanize the opposing party. For the most part, it is more difficult to be mean and antagonistic in person.

Although the law is not concerned with such intangibles, tribunals should be when exercising their dispute resolution mandates.

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Comments

  1. Ontario’s Statutory Powers Procedure Act allows either written hearings or electronic hearings, if the rules of the relevant tribunal provide for them. The Act contemplates that sometimes an oral hearing will be appropriate.

    Written hearings

    5.1(1)A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding. 1997, c. 23, s. 13 (6).

    Exception

    (2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is good reason for not doing so.

    Same

    (2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters. 1999, c. 12, Sched. B, s. 16 (4).

    Documents

    (3)In a written hearing, all the parties are entitled to receive every document that the tribunal receives in the proceeding. 1994, c. 27, s. 56 (10).

    Electronic hearings

    5.2(1)A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding. 1997, c. 23, s. 13 (7).

    Exception

    (2)The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

    Same

    (3)Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.

    Participants to be able to hear one another

    (4)In an electronic hearing, all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing. 1994, c. 27, s. 56 (10).

    Different kinds of hearings in one proceeding

    5.2.1A tribunal may, in a proceeding, hold any combination of written, electronic and oral hearings. 1997, c. 23,

  2. With Respect

    Comrad Black’s book on his convictions being more than 500 pages long might well have meant that he was a bad, rambling writer, who could only make his make his point(s) effectively under the discipline of an oral presentatation , or through having someone make an oral presentation for him.

    Yours Sincerely