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Legal Guide

Ch.7 Pre-Hearing Proceedings (01 January 2015)

  1. Overview
  2. Default Proceedings
    (a) Overview
    (b) Board Rule 2.5
    (c) SPPA General Orders and Rules
  3. Pre-Hearing Conferences
    (a) Overview
    (b) Discretion to Order a Pre-Hearing Conference
    (c) Conduct
    (d) Purpose
    (e) Notice
    (f) Pre-Hearing Conference Memorandum
    (g) Board Orders
    (h) Settlement Privilege
  4. Summary Dismissals for Cause
    (a) Board Rule 1.8
    (b) Comment

1. Overview

Most legal adjudication processes, including administrative tribunal proceedings, have evolved procedures to deal with situations where the full hearing of a case is unwarranted. These situations can include those where a party is in "default" (ie. has failed to participate in the process or to respond to initiating documentation), where only legal issues are involved (motion to determine a question of law), where available legal procedures are being abused ("abuse of process" or "frivolous and vexatious litigants"), where the tribunal lacks jurisdiction to consider the matter, and others.

As well - in the last 20 years or so - tribunals have developed a variety of pre-hearing procedures to block, dismiss, shorten and press for settlement of proceedings. These processes can include such things as summary dismissals, pre-hearing conferences, and alternative dispute resolution ("ADR"). A related procedure, 'refusal to process applications' (Board Rule 1.7) is critically discussed at length in the chapter "Applications".

Authority for the Board to adopt some of these procedures is set out in the rule-making authorities established under s.25.1 of the Statutory Powers Procedures Act ("SPPA"), which governs the Board's procedures (see the SPPA chapter "Tribunals and Their Rules"). The SPPA both sets out general rules which apply to tribunals which it governs, and provides authority for tribunals to make rules establishing such things as ADR procedures, pre-hearing conferences and summary dismissals for cause. The Board's legal ability to use these latter procedures is triggered only when they make specific Rules establishing them.

Of these powers, the Criminal Injuries Compensation Board has made rules to provide for summary dismissal for cause (Rule 1.8) and pre-hearing conferences (Rule 5.3). "Default proceedings" (Rule 2.5) are established only in a minimal manner. No ADR Rules have been passed to date. These are the topics discussed in this chapter.

2. Default Proceedings

(a) Overview

As mentioned above, neither the SPPA nor the Board Rules establish any robust framework for dealing with situations where a party has failed to actively participate in proceedings, dispute being served with the originating documentation (ie. default situations).

As a practical matter the Board may even "encourage" non-participation in its policy of not serving convicted offenders with Notices of Hearing (see the critical discussion of this practice under the topic "Offender or Alleged Offender as Party" in the chapter "Parties").

However there are some laws and rules which bear on default situations.

(b) Board Rule 2.5

Board Rule 2.5 manifests one of the typical civil court responses to default. It provides that where a party fails to attend a hearing, despite being properly served with a Notice of Hearing, "the Board may proceed in the person's absence and he or she shall not be entitled to any further notice in the proceeding." Within this Rule there is no alleviation of the Applicant's burden of proof for their case.

(c) SPPA General Orders and Rules

A broad authority exists for SPPA-governed tribunals to "make rules governing the practice and procedure before it" [SPPA s.25.1(1)]. Section 25.0.1 additionally authorizes a tribunal to "make orders with respect to the procedures and practices that apply in any particular proceeding".

Further, the SPPA grants to tribunals a general authority (not requiring the making of any tribunal rules) to "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes" [SPPA s.23(1)]. However, the s.23 power is designed more for nuisance or bad faith behaviour situations than for situations which legitimately require something less than the full hearing procedure.

These sources of jurisdiction are broad in their remedial authority and will likely be interpreted broadly by a reviewing court, provided that the tribunal has exercised them in a considerate and restrained manner in accordance with the principles of natural justice. In a proper case they could be used to dismiss or abbreviate a proceeding where a party is in default. In civil proceedings the standard method of dealing with a defaulting defendant is to terminate the defaulting party's right to further service of documents and notices within the proceeding, and to dispense with the plaintiff's burden of proving their cause of action (ie. liability) - though damages must still be proven, often by way of affidavit. As noted above regarding Board Rule 2.5 there is no alleviation of the burden of proof on default before the CICB.

The general s.25.1 SPPA rule-making authority is not however without limit, and may be abused by an overreaching tribunal. A critical discussion of these limits is found under the topic "Board Rules" in the chapter "Questionable Board Practices".

3. Pre-Hearing Conferences

(a) Overview

CICB Board Rules 5.3 to 5.5 have established a pre-hearing conference procedure much like that used in civil trials: the "pre-trial conference". The Board has authority to make such rules under the SPPA: for the purpose of settling the matter, narrowing issues at hearing and otherwise facilitating orderly preparation for the hearing [SPPA s.5.3(1)].

(b) Discretion to Order a Pre-Hearing Conference

The actual holding of a pre-hearing conference is at the discretion of the Board on a case-by-case basis, and it may only be ordered where both the applicant and the alleged offender are represented by counsel (which includes both lawyers and agents - see the chapter "Parties") [R5.3(1)].

To prepare for the conference, the Board may direct "counsel to exchange and file documents or submissions prior to the pre-hearing conference." [R5.3(5)]

The Rules are ambiguous on the issue, but it appears that the Board may order a conference (or conferences) amongst counsel only. However if counsel attends without their party then counsel "must have the authority to make agreements and give undertakings respecting the matters to be addressed at the pre-hearing conference." [R5.3(4)] This is to ensure that the conference is productive and that other parties are not subject to "double-dealing" - where understandings reached in the conference are reneged upon when clients are later "consulted".

(c) Conduct

As is standard practice in similar procedures, pre-hearing conferences are closed to the public unless otherwise ordered [R5.3(8)], and any members who conducts a conference must not be on the hearing panel [R5.3(6)].

Pre-Hearing conferences may be conducted by way or either oral or electronic(typically, telephone) hearings [R5.3(7)]. See the discussion of the procedures governing these hearing types in the chapter "Hearings". The SPPA [s.5.3(5) and s.5.2] provides that pre-hearing conferences may be held electronically under the rules which govern electronic hearings, "with necessary modifications".

The Rules make no mention of the involvement of "participants" (see the chapter "Parties" for how these differ from "parties") in pre-hearing conferences. Given the purposes of such conferences (below) this makes sense for the most part, although where legal issues are being considered it may be useful to have their involvement at times.

(d) Purpose

Under Rule 5.3(2), the purposes of the conference are "deal() with any matter" including:
  • the scope of the various party's involvement in the proceeding re presenting evidence and making submissions;

  • legal issues;

  • to hear preliminary motions;

  • procedural issues; and

  • "other matters that may assist in the just and most expeditious disposition of the proceeding"
The SPPA provisions on the same issues provide that "the tribunal may direct the parties to consider" [SPPA s.5.3(1)]:
  • agreeing on facts or evidence,

  • simplification or settlement of some or all of the issues,

  • estimated duration of the hearing,

  • scheduling steps of the proceeding, and

  • "any other matter that may assist in the just and most expeditious disposition of the proceeding."
Noticeably absent from the Board Rule, but arguably included in the "other matters" mention, are "settlement" efforts. Settlement is the primary function of pre-trial conferences in the civil court setting.

(e) Notice

The Board shall deliver Notice (containing date, time, location and purpose) of the conference to parties' counsel and otherwise as the Board shall direct [R5.4].

(f) Pre-Hearing Conference Memorandum

Unlike in civil lawsuit proceedings (ie. "Pre-trial Memoranda" prepared by the parties), the "Pre-hearing Conference Memorandum" refers to the preparation of a memo by the presiding Board member AFTER the conference, for use at hearing.

Rule 5.5(1) provides that "agreements made and undertakings given, as well as areas of disagreement" be recorded in a "memorandum" prepared by or on behalf of the Board member. The memorandum is filed with the Board and served on party counsel and otherwise as the Board member directs. Such agreements and undertaking are binding on the involved parties, unless the Board releases them from compliance [R5.5(2)].

(g) Board Orders

What authority does have Board member in a pre-hearing conference have to make binding and conclusive procedural orders or determinations on legal issues in preparation for the full hearing? Confusion on this issue can reign if one only has regard to the Rules.

As noted above, Board Rule 5.5: ("Results of Pre-Hearing Conferences") requires only that "agreements made and undertakings given" in a pre-hearing conference be recorded in a memorandum to create a record of these binding voluntary commitments. The Rules are oddly silent on the inclusion of any Board orders in the memorandum, leading to the concern that the Board lacks order jurisdiction.

Further, the phrase "dealing with any matter" (R5.3, discussed above), which outlines the purpose of the conference is also unfortunately ambiguous on the issue - although that Rule does expressly empower a presiding Board member to "hear preliminary motions" and to "deal with ... legal issues".

Thankfully the issue is clearly dealt with in the SPPA:
s.5.3(3) A member who presides at a pre-hearing conference may make such orders as he or she considers necessary or advisable with respect to the conduct of the proceeding, including adding parties.
It would therefore seem clear that a Pre-hearing Conference may make orders otherwise within the jurisdiction of the Board. It would only be logical for these to be included in the "Pre-Hearing Conference Memorandum".

(h) Settlement Privilege

As mentioned, the listed "purposes" of a pre-hearing conference (Rule 5.3, discussed above) do not expressly mention the "settlement" of the proceeding amongst them, despite it being logically and traditionally the primary issue in such procedures elsewhere (ie. civil court).

While this lack surely cannot mean that a pre-hearing conference should avoid the issue of settlement, the Rules themselves do lack a necessary adjunct to any settlement activities, which is the establishment of evidentiary "privilege" over anything stemming from settlement activities. The purpose of such "privilege" is to facilitate frank settlement efforts by guaranteeing that things disclosed in the settlement effort are disclosed "without prejudice" so that they might not be used in evidence against the party at hearing.

Searching for such such a provision in the SPPA will be met with limited success. Sections 4.9(1) and (2) of the SPPA provide that "mediators, conciliators or negotiators" are not compellable witnesses regarding either testimony, notes or documents - but these provisions apply ONLY to settlement efforts conducted within ADR (alternative dispute resolution) procedures. In any event, as noted in the "Overview" above, the Board has not passed any ADR Rules and as such is not entitled to conduct ADR procedures [SPPA s.4.8(1)(a)].

While the common law of "natural justice" might import a privilege requirement in an evidence situation should the need arise, it would be best for all concerned if the Board - as a preliminary issue in any pre-hearing conference - obtained party consent or made an order embodying the elements of settlement privilege necessary to allow full and free discussion of the issues on the case.

4. Summary Dismissals for Cause

(a) Board Rule 1.8

Rule 1.8 purports to authorize pre-hearing dismissal of an application "on the grounds of lack of evidence, without having heard from all of the participants" where:
  • the Board has before it all of the evidence which the applicant wishes the Board to consider; and

  • that evidence, if it was taken as true by the Board and given the most favourable meaning which can reasonably be attributed to it, including every legitimate and reasonable inference which may be drawn from it, cannot support the claim(s) being made.
Rule 1.8 further requires prior notice to the parties of any intention to exercise this dismissal authority, which notice shall include reasons, the right of the parties to make written submissions on the issue, and a deadline for such submissions. No dismissal may be made without such notice having been given, and not until any timely submissions have been considered or the deadline for them has expired with no submissions having been filed.
Note: Unlike R1.7 (Refusal to Process Applications, discussed in the chapter "Applications"), the Rule 1.8 NOTICE requirements do comply with the rule-authorizing provisions set out in the SPPA [s.4.6] (although there are other jurisdictional problems, discussed below).
(b) Comment

Rule 1.8 expressly cites s.4.6 SPPA as its legitimizing authority. The range of this SPPA rule-making authority is discussed at this link:

Administrative Law (Ontario)(SPPA): Ch.20: Summary Dismissal for Cause

The reasons for summary dismissal of a "proceeding" (not an "application", as in Rule 1.8) for cause as authorized under s.4.6 SPPA may include:
  • the proceeding is frivolous, vexatious or is commenced in bad faith;

  • the subject-matter of the proceeding is beyond the jurisdiction of the tribunal; or

  • some statutory prerequisite for bringing the proceeding has not been met.
As can be seen however, the Rule 1.8 grounds (lack of evidence) are entirely different from those authorized by s.4.6 SPPA (above). While it can be argued that there is some incidental confluence between lack of evidence and say - a frivolous proceeding or one failing to fulfil the "statutory requirement" of meeting the burden of proof - it is plain that the entire thrust and impact of Rule 1.8 is different from the SPPA provision which it purports to draw its authority from.
Oddly, the s.4.6 grounds DO find themselves embodied verbatim in Rule 1.7 (discussed in the chapter "Applications") as grounds purporting to justify the refusal to process and application) - with even more egregious legal results.
On its face, a Rule 1.8 procedure embodies a merger of the civil litigation motions of "non-suit" (motion to dismiss assuming all facts as alleged in the pleadings as being true) and summary judgment (heard on affidavit evidence).

By this standard, a Rule 1.8 procedure is not unjust. Note the provision in the Rule to treat the evidence as "true", to give it "the most favourable meaning which can reasonably be attributed to it", and the condition that the motion can only be considered once that "the Board has before it all of the evidence which the applicant wishes the Board to consider". These are standard civil court principles in a non-suit motion.

The substantial jurisdictional problem that Rule 1.8 faces is that dismissal for lack of evidence is simply not countenanced in SPPA s.4.6 - the expressly stated basis of the Rule. Any arguments that the Board has a "general" rule-making authority by virtue of s.25.1 SPPA have been addressed in the discussion of "Board Rules" in the chapter "Questionable Board Practices".

The inevitable conclusion is that when the Board made Rule 1.8 - purporting to allow for summary dismissals for lack of evidence - it simply lacked jurisdiction to do so and the Rule is illegal.

The difficult practical part of this situation is remedy. Readers should review the brief discussion of Judicial Review in the discussion of "Remedies" in the chapter "Questionable Board Practices".


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Last modified: 19-12-22
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