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Ch.10 Evidence (2) (01 January 2015)

11. Disclosure of Evidence
Note: Be careful to distinguish this issue from the issue of "Filing of Evidence" (with the Board) discussed below. "Disclosure" refers to any duty to provide copies or summaries of evidence to other parties to the proceedings.
(a) Overview

An important issue in any legal proceeding is the extent to which a party is entitled to knowledge of issues and copies of documentary evidence to be raised in the hearing.

This issue can have several aspects, including notification of issues between the parties ("issue disclosure"), pre-hearing document disclosure duties amongst the parties and the Board (pre-hearing document disclosure), and the - rarer - occurence of attempts to introduce and use evidence which is kept secret from the parties to whom it relates ("secret evidence").

(b) Issue Disclosure

A general SPPA rule [s.8] requires disclosure between parties of allegations where the "good character [or] propriety of conduct" of a party is going to be brought into issue. In such cases, "the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto."

Arguably, this covers just about ALL CICB proceedings. Parties would therefore be prudent to ensure that the alleged offender (or anyone else to whom s.8 SPPA may apply) is provided with such particulars - or that they have otherwise received them (eg. by receiving a copy of the application forms).

In Stone v CICB (Ontario) OJ #1175 (QL) (Div Ct, 1982) the Court held that s.8 of the SPPA was not violated when the evidence impugning the character of the applicant was contained in his OWN filed materials.

Courts have also addressed the extent to which natural justice entitles a party to notice of allegations. In McPhee v CICB (Ontario) OJ #1548 (QL) (Div Ct, 1994) the Court ordered a re-hearing where the Board had denied a claim based in part on unsupported allegations that the applicant was "well-known" to police and "always intoxicated". The applicant was not advised of these allegations before or at the hearing. Section 8 of the SPPA was not expressly considered.

In Hepplewhite v CICB (Ontario) OJ #963 (QL) (Div Ct, 1972) the Board itself obtained materials regarding the applicant from the police, which they then proceeded to cross-examine him on without disclosing them to his counsel. While the Court upheld the right of the Board to conduct its own investigations, it found that in the circumstances the non-disclosure constituted a denial of natural justice justifying a re-hearing:
It would seem to me ...... that it is essential in any hearing of this sort that when serious allegations of a moral or criminal nature are made against anyone that the material on which these suggestions are made should be made available to the individual in question who is asking the Board to act in his behalf.
(c) Secret Evidence

Of course - once one is at a hearing - the general rule is that one is entitled to view and hear the evidence adduced by other parties.

While this is such a basic principle of natural justice that one is surprised to see it litigated today, in CP v CICB (Ontario) OJ #5265 (Div Ct, 2004) a Court recently confirmed that a medical report relating to the applicant's injuries - used in evidence but not given to the respondent - should have been disclosed to the respondent:
... the requirements of a fair hearing include the right to know the case to be met. If the complainant was unwilling to waive whatever privacy rights she had, the medical report should not have gone in to evidence or been relied on in any way. It is simply unfair to act in this way.

.... relying on evidence kept secret from the appellants is not permissible. We agree with the appellants that this error rendered the hearing unfair to J.G. [a party]
The Court was similarly critical of related deletions on the face of the copy of the written reasons for decision given to the respondent.

The case of Hepplewhite v CICB (Ontario) OJ #963 (QL) (Div Ct, 1972) maintained the same principle where an applicant was subject to cross-examination on the basis of undisclosed documentation (see "Disclosure" above).

(d) Pre-Hearing Document Disclosure

The term "document" is used in CVCA proceedings broadly to include "written or pictorial materials, audio/video recordings and photographs." [Rule 1.5].

No statute, regulation or Board Rule expressly requires pre-hearing documentary evidence disclosure amongst the parties, except in the case of written hearings, discussed below (note however the duty of "Issue Disclosure", discussed above). However for reasons of efficiency and natural justice parties to oral hearings are well-advised to engage in such pre-hearing disclosure amongst themselves or to at least ensure that the Board has sent all filed materials (see the discussion "Filing of Evidence", below) to the other parties (if the Board has such a policy, it is not in their Rules).

While not quite as essential to natural justice as the basic right to see and hear the evidence of other parties, rules requiring pre-hearing document disclosure between parties are of great use in facilitating orderly, timely and thorough review of the issues before a tribunal. Tribunals not having such firm rules or practices can expect excessive adjournment requests by parties "surprised" by new evidence at hearing.

While the SPPA authorizes a tribunal to make rules regarding documentary disclosure (ie. the pre-hearing service of documentary evidence to the parties and Board before hearings) [SPPA s.5.4], the Board has not used this authority. For interest's sake, the terms in which such Rules might be made by the Board are discussed at this link:

Administrative Law (Ontario)(SPPA): Ch.14: Documentary Disclosure

(e) Written Hearing Disclosure

Where a written hearing is going to be held, the Board shall also send the parties and participants "procedural directions" which shall include [Rule 7(5)]:
  • the date and purpose of the hearing, and details about the manner in which the hearing will be conducted;

  • schedules for the parties to file documentation;

  • that documents filed by a party or participants may be disclosed to the other parties, and each party will have an opportunity to make submissions in writing to the Board; and

  • that parties to the hearing shall provide with their final submissions a list of documents that they are relying on in support of their positions.

12. Filing of Evidence

(a) Overview

Closely associated with the above-discussed topic of "Disclosure of Evidence" (amongst parties) is that or pre-filing evidence with the Board. To the extent that the Board has a firm and functional policy of distributing filed evidence amongst the parties well before hearing the issues are largely the same.

The term "document" is used in CVCA proceedings broadly to include "written or pictorial materials, audio/video recordings and photographs." [Rule 1.5].

(b) Board Policy

While not spelled out firmly in any rules, any evidence obtained by the applicant is expected to be filed with the Board. The Board's interventionist role in requiring particular evidence (see the section "Board Control over Evidence Collection", above), is enforced by it's policy of not even scheduling hearings until it is satisfied as to the state of the evidentiary record:
All claims made to the Board are scheduled for hearing once all supporting information has been submitted. The time required for a file to proceed to a hearing is largely dependent on the timeline involved in obtaining the required documentation to support the claim [2002/3 Annual Report (Table 1)].
Further, the Board's "Fact Sheet: Applicant Information for Oral Hearings" (May 2005) states:
If you have any additional written information, you should send it to the Board at least 45 days prior to your hearing.
(c) Manner of Filing

Documents to be filed with the Board may be delivered [Rule 4.1(1)]:
  • directly to the Board's offices,

  • to the Board during a hearing,

  • regular, registered, certified or priority post mail,

  • fax,

  • courier,

  • otherwise as the Board may permit.
When briefs (ie. collections) of documents or legal authorities (ie. cases and extracts from legal texts) are to be filed, three copies are required [Rule

(d) On-Going Filing Duties

While not expressly set out in the legislation or otherwise as a legal requirement, most of the application forms require the applicant to sign an undertaking to "notify the Board of any change in circumstances that may affect the assessment of any compensation".

This a reasonable requirement and would include such things as changes in amount or source of income, significant changes in medical condition and treatments related to the crime, new medical or related expenses - anything that could conceivably have a bearing on an award of or amount of compensation award. It would also apply to any material new evidence relating to the crime upon which eligibility for an award is grounded.

The wording of the above undertaking is broad enough to encompass ongoing disclosure both before and AFTER an award is made (or refused). Disclosure AFTER an award has been made is particularly pertinent for an order for periodic payments has been made. If a situation requiring notification is required AFTER an award is made, parties should also review the discussion of "Variation Reviews" in the chapter "Reviews and Appeals".

13. Return of Evidence

Once the proceeding is "finally determined", the Board may return documents and exhibits to their owner or the person entitled to possession of them, at the request of such person [CVCA s.24].

This provision turns on the concept of "final determination" of a proceeding and thus does not take into account the possibility of a variation review of a compensation order (see chapter "Procedure"), for which there is no limitation period. If such a review is a possibility, parties may wish to ensure the evidence is properly preserved either in the custody of the Board or otherwise.

The SPPA provisions which allow for the use of photocopies and certified copies in evidence may be of use in such a situation [SPPA s.15(5)(6)]. These are discussed in the SPPA program in the chapter "Evidence", in the discussion of "Document Copies".

Administrative Law (Ontario)(SPPA): Ch.6: Evidence


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Last modified: 20-12-22
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