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13 views13 pages

Al4 12

Uploaded by

lostbilla66
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Administrative Law: Principles and Advocacy, 4th Edition

CHAPTER 12
Management and Control of the Hearing
Process

Emond
Copyright Montgomery
© 2020 Publications
Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 2

Authority to Manage the Hearing


Process
• Principles of procedural fairness/efficiency require
tribunals to have authority and tools to manage
the hearing process
• Authority to manage hearings may be in a statute
of general application or in the tribunal’s enabling
legislation
• Tribunals should aim to balance certainty,
consistency, flexibility
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 3

Authority to Control the Conduct


of Hearings
Tribunals have inherent right under common law to
take any steps necessary to control their process,
including:
• Power to deal with contempt • Power to bar an
incompetent representative • Power to compel
witnesses • Power to prevent abuse of process •
Power to maintain order • Power to award costs or
expenses
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 4

Power to Deal with Contempt

Conduct that may amount to contempt includes:


• Disruption of the proceeding

• Failure of a participant to carry out undertaking

• Failure of a witness to obey a summons

• Failure of a party to obey a valid order of tribunal

• Statements by parties to media intended to


influence outcome of hearing
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 5

Authority to Control the Conduct


of Hearings
Power to Bar a Representative:
• If incompetent or does not understand/carry out
duties
• ATA permits tribunal to eject any person from a
hearing for disobeying an order or direction of
tribunal (s 48)—(See AM v Michener Institute for
Applied Health Sciences, 2011 HRTO 843 at para
53)
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 6

Authority to Control the Conduct


of Hearings (cont’d)
Power to Compel Witnesses
• If a witness fails to attend/refuses to provide
evidence, the tribunal may ask a judge to issue a
warrant for arrest
Power to Prevent Abuse of Process
• Tribunals have the right to prevent abuse of
process even without statutory authority

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 7

Authority to Control the Conduct


of Hearings
Power to Maintain Order—Some tribunals can deal
with disorderly conduct by ordering offending
person to obey tribunal’s procedure and, if the
conduct continues, calling the police
Power to Award Costs

• Tribunals do not generally have power to award


costs, but some enabling statutes allow for it

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 8

Represented Vs. Unrepresented


Parties
• If a party is represented, the adjudicator may
make the representative responsible for a client’s
conduct
• If a party is unrepresented, adjudicators
sometimes choose to let the party express anger
rather than strictly enforcing standards of
procedure

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 9

Protestors

• Protestors may demonstrate outside or bring


banners and signs into the hearing room
• Adjudicators must balance respect for protestors’
constitutional rights with the need to protect the
rule of law

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 10

Abusive Participants
Laurel Cropley (former immigration adjudicator,
federal) suggests “three strikes & you’re out” rule:
(1) Stop the individual who is speaking, warning
them that the behaviour will not be tolerated
(2) If the behaviour continues, warn the individual
that they will be asked to leave unless it ceases
(3) If the individual ignores the warning, ask them
to leave the proceeding
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 11

Closed (In Camera) Hearings

• Section 2(b) of the Canadian Charter of Rights


and Freedoms requires court and tribunal
proceedings to be held in public unless there are
exceptional circumstances (Codified in statutes
such as the SPPA)
• Closed (in camera) hearings: No one but the
parties, representatives, witnesses, and tribunal
members and staff are permitted
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 12

Exclusion of the Media from a


Hearing
• Hearings closed to public may or may not be
closed to media, depending on governing statute
• Parties in closed proceedings may have to sign
undertaking not to reveal evidence at tribunal
• Tribunals may issue publication ban—If media
attend hearing, tribunal cannot forbid publication
of information disclosed at hearing unless
specifically authorized by statute
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 13

Exclusions of Parties from a


Hearing
• If it is necessary to keep information confidential,
a tribunal may deny a party the right to be present
during the time when that information is
discussed

Copyright © 2020 Emond Montgomery Publications. All rights reserved.

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