Simon's Megalomaniacal Legal Resources

Criminal Injuries Compensation (Ontario)
Legal Guide

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Ch.8 - Hearings (01 January 2015)

1. Overview
   
2. Notice of Hearings
   (a) Overview
   (b) When Scheduling Occurs
   (c) Who Receives
   (d) Service
   (e) Contents (General)
   
3. Adjournments
   (a) Overview
   (b) Grounds for Adjournment
   
4. Oral Hearings
   (a) Overview
   (b) Procedure
   (c) Locations
   
5. Written Hearings
   CAUTION
   (a) Overview
   (b) Legal Authority Issues
   (c) Board Practice
   (d) Notice of Hearing
   (e) What the Law (Probably) Is
   (f) Default by a Party
   (g) Conduct of Hearing
   
6. Electronic Hearings
   NOTE
   (a) Overview
   (b) Right to Object
   (c) Notice of Hearing
   (d) Default Proceedings (Electronic Hearings)
   (e) Conduct of Hearing
   
7. Language of Proceedings
   
8. Constitutional Issues
   (a) Overview
   (b) Examples of Constitutional Issues
   (c) Notice of Constitutional Question
   
9. Public Access
   (a) Overview
   (b) Closing Hearings
   (c) Publication Bans
   . Authority to Order
   . Procedure to Challenge
   . Offence
   (d) Access to Documents

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1. Overview

The Compensation for Victims of Crime Act (CVCA) sets out a simple but quite deceptive statement of an applicant's right to a hearing: on the filing of a compensation application, the chair of the Board shall refer the case for hearing to a panel or one or more members [CVCA s.8], members sitting alone have the same authority as the Board [CVCA s.9(3)].

However actually getting to the point of a hearing (especially a traditional common-law oral hearing) - is quite a different matter. Like so many legal issues involving the CICB, there is significant tension between the Board's Rules and practice and what the enabling and parent legislation allows (see the discussion of "Gate-keeping" under the topic "Board Rules" in the chapter "Questionable Board Practices".)

Initial "gate-keeping" practices which - when operative - even bar the making of an application are discussed in the chapters "Applications". Subsequent pre-hearing "gate-keeping" practices are discussed in the chapter "Pre-Hearing Procedures".

When (and IF) a party finally gets to thinking of hearings - the topic of this chapter - Board Rules and practices further control and restrict the type of the hearing, the party's right to control their own participation - and even the right to participate AT ALL (see the topic "Offender or Alleged Offender as Party" in the chapter "Parties") or have a hearing scheduled AT ALL (see the chapter "Board Control over Evidence Collection" in the chapter "Evidence").

There are three types of hearings recognized which may eventually hear a CICB application (written, oral and electronic). While practical procedural issues for all of these will be addressed in this chapter, much of it is devoted to the Board's heavy preference for written hearings over oral hearings, and its practice (in my view illegitimate) of dictating the hearing type to the parties [Board Information Sheet: Information Regarding Hearings"]:

As of June 1, 2004 the Board will be informing applicants of the type of hearing by which their claims will be adjudicated. The type of hearing to be held is at the discretion of the Chair. The Chair's decision is final.

And just on case that wasn't plain enough ["Fact Sheet: Why is There a Hearing" (01 Feb 2006)]: "The Board decides what type of hearing you will have."

Other issues covered (in the sister legal guide "Statutory Powers Procedures Act") are the Board's (legitimate) right to dispense with hearings, on consent of the parties (see "No Hearing on Consent"), and to consolidate different hearings together (see "Consolidation of Hearings").


2. Notice of Hearings

(a) Overview

The required contents of a Notice of Hearing vary with the type of hearing being conducted: oral, written or electronic. This below section "Contents" discusses the content of Notices of Hearing generally. For important specific requirements that exist for Notices of Hearing when written or electronic hearings have been directed - see those sections, below.

As well, law which governs "Notices of Hearings" generally for administrative tribunals (including the Board) is discussed in the SPPA legal guide in the chapter "Hearings", linked here:

Administrative Law (Ontario)(SPPA): Ch.4: Hearings
(b) When Scheduling Occurs

Contrary to CVCA s.8 (mentioned above) which requires that, on the filing of a compensation application, the chair of the Board shall refer the case for hearing to a panel or one or more members [CVCA s.8], the 2002/3 Annual Report (Table 1) states Board practice as:

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.

It is also the policy of the Board - where there is an unresolved related criminal prosecution - not to schedule a case for hearing until that proceeding is concluded ["Fact Sheet: Important Information for Applicants" (June 2005). This policy raises concerns of fettering discretion (see the discussion of that topic in the chapter "Questionable Board Practices") as the law is that if prosecution/s are still pending - whether commenced or not - only has discretion to adjourn the proceeding pending the outcome of the prosecution/s [CVCA s.16(1)]. By law, discretionary authorities may not be converted into inflexible rules.

The upshot of all this discussion for the issue "When Scheduling Occurs" - is that scheduling very often prolonged by the Board's above-noted practices. Practices which in my analysis, as discussed throughout this legal guide, have little or no basis in law.

(c) Who Receives

Under the CVCA, "parties" don't receive Notices of Hearing so much as those who receive Notices of Hearing ARE parties (along with anyone subsequently added by the Board as a party) [CVCA s.9(2)] (see the chapter "Parties").

Luckily the CVCA lists those whom are initially entitled to Notices of Hearing [CVCA s.9(1)]:

• the applicant;
  
  
• the Minister'
  
  
• the offender; "if it is practicable to serve him or her"
  
  
• "any other person who appears to the Board to have an interest in the application."

Under the Rules, the Board has authority to order service of the Notice of Hearing on others as well [Rule 2.1]. Logically this would include any newly added parties and any "participants" (see the chapter "Parties").

(d) Service

The Board shall give at least 10 days notice of the date, time and place for the hearing of the application [CVCA s.9(1); Rule 2.2].

A Notice of Hearing is served by the Board in any of the following manners [Rule 2.3]:

• personal delivery,
  
  
• first class prepaid regular mail,
  
  
• registered mail,
  
  
• courier with proof of service,
  
  
• fax with proof of service.

Service on a party's legal representative is adequate service [Rule 3.4].

(e) Contents (General)

A Notice of Hearing shall include [Rule 2.4]:

• the time and place of the hearing;
  
  
• the purpose of the hearing;
  
  
• the statutory authority under which the hearing is to be conducted;
  
  
• a warning that if the person notified does not attend that the Board may proceed without them and not send any further notices of the proceeding;
  
  
• any other information or directions the Board considers necessary for the proper conduct of the hearing.

If the hearing is to be electronic the Notice of Hearing shall include "details of the manner in which the hearing is to be conducted" [Rule 2.4].


3. Adjournments

(a) Overview

For a variety of reasons (unpreparedness, absence of witness, illness, etc) it sometimes happens that a party wants an oral (usually) hearing to be re-scheduled to another day. If this happens the party should request an adjournment from the Board as soon as they become aware of the need - they should NOT wait for the hearing to request an adjournment [Rule 6].

Any request for adjournment should be done in writing, should outline the reasons for the request, and should be copied to all parties and participants.

The issue of "Adjournments" is generally discussed in the SPPA legal guide in the chapter "Hearings", linked again here:

Administrative Law (Ontario)(SPPA): Ch.4: Hearings
(b) Grounds for Adjournment

Generally, the Board may grant an adjournment if "satisfied that the adjournment is appropriate or necessary to permit an adequate hearing to be conducted" [Rule 6(1)].

However the Board has established more specific justifiable reasons for adjournment, as follows [Rule 6(2)]:

• why the adjournment is needed;
  
  
• prejudice resulting to any party (including the requester) by granting or denying the request (ie. inconvenience, expense, loss of evidence, etc);
  
  
• the amount of advance notice of the request given to the Board and parties;
  
  
• any consent of other parties to the request;
  
  
• any prior consent of the applicant to the scheduled date;
  
  
• any prior delays or adjournments;
  
  
• the public interest in efficient and timely proceedings,
  
  
• "the Board's statutory mandate to protect the public interest"

The Board may impose conditions on the granting of any adjournment requests, and shall take into account in the granting of the adjournment whether the parties consent to those conditions. A typical condition is to make the next date "pre-emptory" (ie. no more adjournments).

The Board Rules direct it to refuse an adjournment request - except in extraordinary circumstances - where [Rule 6(3)]:

• the date was preemptory;
  
  
• the requester seeks the adjournment only to obtain representation (ie. counsel) but has been unreasonably slow in doing so.

As well, while it is not necessary to an order for compensation that the offender be prosecuted for or convicted of an offence giving rise to the injury or death, the Board has discretion to adjourn the hearing to await the outcome of a prosecution or intended prosecution [CVCA s.16(1)]. Such order may be made on the Board's own motion or on that of the Minister (the Attorney-General).


4. Oral Hearings

(a) Overview

As mentioned above, a significant theme in Board practice is whether hearings (IF they are held) are going to be oral, written or electronic. In my analysis of the Board's present Rules and practice structure, the Board has little if any jurisdiction to conduct their hearings in any manner except orally. Further - the Board's heavy use of written hearings (and numerous other practices criticized throughout this legal guide) prejudice party rights to full and prompt participation in the resolution of their cases.

In the 2002/3 Board Annual Report reports that 1,366 (or 61.2%) of cases heard that year were oral hearings, the balance being written. No statistics are published as to the amount of electronic hearings held, and it appears that the Board lumps them with "oral" hearings for reporting purposes.

A Board information sheet "Information Regarding Hearings" states with respect to oral hearings:

Depending on the location of the hearing, the waiting time for an oral hearing to be scheduled may vary from six to eighteen months.

The decision rendered at an oral hearing may only be appealed to the Superior Court of Justice on a point of law.

The same information sheet states with respect to written hearings that:

This type of hearing is generally scheduled, heard and a decision rendered more quickly than an oral hearing.

If the applicant is not satisfied with the decision, the applicant may request a review of the single member decision by a panel at an oral hearing. However, for this to be granted, the award cheque, if any, must be returned to the Board. The wait for an oral hearing to be scheduled is lengthy and there is no guarantee that a new hearing will result in a different decision or the award being made.

These extracts reflect the independent development of Board practice 'on top of' the original structure established under the CVCA legislation, as it has been interpreted by the courts.

The CVCA itself does not speak in terms of oral or written hearings. It speaks of (a) one-member, and (b) two-or-more member panel hearings. The first "appeal" after an unsatisfactory one-member panel decision is to a s.10 "review" hearing by two-or-more members. It is these s.10 reviews that the Board speaks of above when it talks about having an 'oral hearing' after a written hearing "(i)f the applicant is not satisfied with the decision...". The first appeal after a two-or-more member panel decision is to the Divisional Court on a "question of law" only.

It is ONLY by Board practice that one-member hearings are conducted as written hearings, and that two-or-more member hearings are conducted as oral hearings and effectively equated with s.10 reviews: practices which - in my analysis - are not grounded in the Board's legal jurisdiction.

These practices have no doubt looked to amendments to the Statutory Powers Procedures Act (SPPA) through the 1990s which set out the authority (and conditions of exercising this authority) that tribunals have to make rules for written and electronic hearings [SPPA s.5.1, 5.2]. Below I argue that the manner in which these Rules [7,1, 7.2] have been implemented is similarly without proper jurisdiction.

It may even be that the CICB - under the present CVCA - is prohibited by law from holding any form of hearing except oral. The issue of the proper hearing type required by the CVCA was the subject of a Divisional Court case: Darling v CICB (this case is discussed under the topic "Board Rules: Presumption of Oral Hearing" in the chapter "Questionable Board Practices"). There the court decided that requests for time extension (for applications filed past the two year limitation period) had to be conducted by oral hearing. If minor procedural issues like that have to be conducted orally, the argument that the main hearing of the application has to be held orally is all the stronger.

(b) Procedure

"Oral hearing" procedure is covered thoroughly in the Statutory Powers Procedures Act (SPPA) legal guide, in the chapter "Hearings" (which in turn references the trial procedures discussed in the Small Claims Court legal guide.)

Administrative Law (Ontario)(SPPA): Ch.4: Hearings
Oral hearing procedure is typically common to most civil and administrative legal proceedings. The following important CVCA-specific oral hearing rules are discussed in the chapter "Evidence":

• The Role of Parties in Evidence Presentation
  
• The Role of Participants in Evidence Presentation
  
• Order of Presentation of Evidence
  
• Witnesses
  
• Witness Protection

As noted above, the Board's 2002/3 Annual Report (Table 1) states that oral hearings are held in front of a two-member panel. Again, this is Board practice - not law.

(c) Locations

The Board Annual Report for 2002/3 notes that oral hearings were held in the following locations throughout Ontario. Parties should inquire of the Board as to location availability for their case.

• Belleville
  
• Dryden
  
• Hamilton
  
• Kenora
  
• Kitchener
  
• London
  
• Niagara Falls
  
• North Bay
  
• Orillia
  
• Ottawa
  
• Peterborough
  
• Sault Ste Marie
  
• Sioux Lookout
  
• St Catharines
  
• Sudbury
  
• Thunder Bay
  
• Timmins
  
• Toronto
  
• Windsor

5. Written Hearings

CAUTION:
In my analysis - which I invite criticism of - the Board's Rules and practice on the issue of written hearings are at variance with the lawful jurisdiction granted the Board under the Statutory Powers Procedures Act (SPPA) to make rules regarding written hearings. Anyone being unwillingly compelled by the Board to have their case heard by way of written hearing should review this section (better the whole chapter) carefully, and seek legal advice from a lawyer or legal clinic.

(a) Overview

In the 2002/3 reporting period, written hearings constituted 39% of the Board's hearing total. The figure for the previous period is 36%. As such the procedural conduct of written hearings is a significant issue.

A "written hearing" is defined as one held "by means of the exchange of documents, whether in written form or by electronic means" (eg. e-mail) [SPPA s.1(1)].

The traditional legal fact-finding forum is the oral hearing, modelled on the civil court trial. The main difference between an oral and a written hearing is of course the absence of in-person (viva voce) witness testimony. Viva voce evidence - with its oppourtunity to view the demeanour of the witness and cross-examine them spontaneously - is traditionally considered the primary factor in determining the credibility of a witness.

While the need for viva voce testimony may be reduced in cases where liability is not an issue (due to criminal convictions having been registered and transcripts being available) - almost all CICB compensation cases will involve determination of the degree, nature and effect of injury or the effect of death - on the various types of claimants (which can include direct and indirect victims, dependents, support-providers, and Good Samaritans). Except in cases where only documented expenses are being claimed (akin to "liquidated damages" in civil default proceedings), it is difficult to imagine situations where a written hearing could be relied on safely to capture this evidence.

There are other legal concerns regarding excessive reliance on written hearings discussed in the chapter "Questionable Board Practices" (eg. right of self-incrimination, the Board's excessively controlling role in evidence-gathering and scheduling).

This is all to make the point that written hearings - even if properly authorized (which I think they are not at present) - should be only a minor part of the Board's caseload, and that excessive reliance on them is bound to create significant natural justice problems.

(b) Legal Authority Issues

The law related to written hearings is located in several places:

• s.5.1 of the Statutory Powers Procedures Act (SPPA);
  
  
• Board Rule 7.1;
  
  
• Board Practice [for example, as stated in a "Fact Sheet" (last revised May 2005) issued and distributed by the Board.]

The relationship between these sources is that the SPPA establishes (and sets terms on) the Board's authority to make rules on written hearings, the Rules purport to exercise this authority, and the Fact Sheet is adopted into the Rules by Rule 1.3, which reads:

1.3 CICB POLICIES AND GUIDELINES
These rules are to be read in conjunction with the CICB's policies and guidelines.

This view takes the "Fact Sheet" at its highest status. If it is not a "polic(y) or guideline" then it is simply a misleading "pamphlet" delivered to all applicants who have been selected for written hearings.

The SPPA allows rules to be made whereby the Board can compel written hearings for "procedural matters" [SPPA s.5.1(2.1)] (thus enabling the Board to circumvent the Darling case for procedural matters at least - IF such rules are properly constituted). However the Board does not - despite appearances - have that unfettered right with respect to the vast majority of cases where issues of liability, injury and credibility must be resolved - I will call these "substantive matters".

Where the case involves substantive matters, the Board's ability to compel a written hearing is limited by the oppourtunity and right of a party to object and "satisf(y) the tribunal that there is good reason for not doing so" [SPPA s.5.1(2)] (the "objection right") - and the party's entitlement to notice of that right [SPPA s.6(4)].

On the sound assumption that the Board cannot make written hearing rules inconsistent with the enabling provisions of SPPA s.5.1 [SPPA s.25.1(3)], Board Rule 1.7 and Board practice reflect jurisdictional flaws, as follows:

• Rule 7.1 mentions the objection right in an ambiguous and uncertain fashion: first suggesting they can only be held on consent (1), then providing for a Board override (2); then providing for an objection right (3); after which an oral or electronic hearing will be scheduled (4).
  
  
• The Rules are silent as to any requirement in the Notice of Hearing notifying the party of their "objection right" against a written hearing being held.
  
  
• The Board's "Fact Sheet: Applicant Information for Written Hearings" (May 2005) is utterly silent on the objection right, stating in a plainly misleading fashion that:

  The Chair of the Board has determined that you will be having a Written hearing. The Chair's decision is final.

I could spend much time dissecting the uncertainty contained in Board Rule 7.1, but it would make little practical difference as the Board has made it's view plain in the (publically-distributed) "Fact Sheet" that there is no "objection right" against the Board's fiat that a hearing shall be written. This is in plain conflict with the enabling provisions of SPPA 5.1 (see the discussion of "Controlling Process" under the topic "Board Rules" in the chapter "Questionable Board Practices").

(c) Board Practice

As noted above, it is Board practice to simply dictate to parties the type of hearing that they have been "assigned" [Information Sheet: "Information Regarding Hearings"]:

As of June 1, 2004 the Board will be informing applicants of the type of hearing by which their claims will be adjudicated. The type of hearing to be held is at the discretion of the Chair. The Chair's decision is final.

It is Board practice to assign written hearings to one-member panels: 2002/3 Annual Report, Table 1.

The Board's 2002/3 Annual Report suggests that written hearings are used heavily where sexual or domestic assaults are involved, to avoid confrontation between victim and abuser (p.12):

All hearings are held in public, except where in the opinion of the Board a public hearing would be prejudicial to the final disposition of the criminal proceedings or would not be in the interest of a victim of alleged sexual child abuse, domestic assaults, sexual assaults or child assaults. The Board may provide electronic or written hearings to victims in these
cases.

Author's Note:
Electronic hearings as such are not (by the 2002/3 Annual Report) apparently held by the Board, though the use of electronics to facilitate remote participation is possible.

The above quote is a clear reference to s.12(b) of the CVCA which sets out the factors (interests of sex and abuse victims) that the Board may consider when closing a hearing from the public. It therefore it appears that the Board views the use of written hearings as (at least a partial) substitute for oral, closed hearings. While the Board's implementation of its authority for written hearings can be subject to extensive criticism, the inclusion of victim/abuser confrontation as a DISCRETIONARY FACTOR (not as a fixed rule) within otherwise properly constituted Rules and practice, would be reasonable.

(d) Notice of Hearing

The SPPA requires that a Notice of Hearing for a written hearing must include [SPPA s.6(4)]:

• the date and purpose of the hearing, and details about the manner in which the hearing will be held (usually timelines for the exchange of documents);
  
  
• a statement that a written hearing may be avoided if a party satisfies the tribunal "that there is good reason for not holding a written hearing (in which case the tribunal is required to hold it as an electronic or oral hearing) and an indication of the procedure to be followed for that purpose";
  
  
• a statement that if the party notified does not participate in the hearing in accordance with the Notice - nor move to avoid a written hearing (as above) - then the tribunal may proceed without the party's participation and the party will not be entitled to any further notice in the proceeding. [SPPA s.6(4)]

As noted, these requirements are not embodied in the Board's Rules, and are quite inconsistent with Board Practice as reflecting in the quoted information sheets and "Fact Sheets".

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.

(e) What the Law (Probably) Is

If a party objects to the holding of a written hearing involving substantive matters (ie. other than a procedural issue), I suggest that they put little stock in the Board's Rules or their Fact Sheet. Reliance is better placed on the provisions of the Statutory Powers Procedures Act [SPPA s.5.1 and (more so) 6(4)] which sets out plainly the "objection right", which should then be used. While such a method is not immune from criticism it at least imposes some legal authority on a situation rife with inconsistent subordinate rules and practice.

Therefore, the argument is that Board Rules PROPERLY made under SPPA s.5.1(1)authority should allow a party an oppourtunity to "satisf(y) the tribunal that there is good reason for not doing so." This argument is supported by similar notice provisions in SPPA s.6(4) which are independent of any need to be embodied in Board rules.

If faced with the situation, a party might consider filing a written objection [a "motion" might even be more assertive (see the chapter "Motions")], setting out the reasons why they object to a written hearing (typically the importance of viva voce testimony as elsewhere discussed in this chapter) and cite s.5.1 and 6(4) of the SPPA. While the most likely response of the Board will be to deny the request - you have reserved the issue for later review or appeal (see the chapter "Appeals and Reviews") later down the road should it become
necessary.

(f) Default by a Party

Failure of a party to participate in a written hearing for which Notice of Hearing has been given - or failure to object to avoid the written hearing for good reason (see above), may result in the hearing proceeding without them, with the defaulting party receiving no further notices in the proceeding [SPPA
s.7(2)].

(g) Conduct of Hearing

There isn't much to say about conduct of a written hearing. Essentially one Board member reviews all the written evidence and submissions. All parties are of course entitled to copies of any documents filed with the Board on the case [SPPA s.5.1(3); Rule 7.1].

Rule 7(6) does however establish that there shall be no examination by written questions - unless ordered by the Board - so a motion to seek to use such a procedure would be required. This parallels the civil court procedure of "Examination for Discovery by Written Questions" - which might be useful for anyone considering such a procedure. I link it here:

Rules of Civil Procedure: R35 - Written Discovery

6. Electronic Hearings

NOTE:
The 2002/3 Annual Report reports that 61.2% of cases are heard orally and 38.8% heard by written hearing - but is silent as to the proportion of cases that are conducted "electronically" (ie. by telephone or with remote TV link).

The Board's "Fact Sheet: Why Is There a Hearing?" (01 Feb 2006) however suggests an administrative terminology usage which includes "electronic" hearings within the definition of "oral hearing". It may be that the above statistic for "oral hearings" includes them:

... you can have a written hearing or an oral hearing (in person or electronic).

As such the proportion of cases which are conducted electronically is unclear. In any event, there are many instances in which electronic means may usefully be relied upon to facilitate the participation of remote witnesses or parties within sit-down oral hearings. A tribunal may "hold any combination of written, electronic and oral hearings." [SPPA s.5.2.1]

(a) Overview

An "electronic hearing" is defined as one held "by conference telephone or some other form of electronic technology allowing persons to hear one another". Electronic hearings are typically telephone hearings, but may also include use of remote televisions - particularly where a party is incarcerated.

Rule 7.2(1) gives the Board the right to direct an electronic hearing - if the Board is "satisfied that no party would be significantly prejudiced by an electronic hearing." This actually is an extending of additional rights to a party, as the SPPA [s.5.2] does not place the burden of this initial threshhold on the the Board.

(b) Right to Object

In contrast to the situation discussed immediately above respecting written hearings, the Board's Rules on the holding of electronic hearings are much more consistent with their enabling provisions in SPPA s.5.2.

As is the case with written hearings, where the issue is procedural alone, a party is NOT entitled to object to the electronic hearing [SPPA s.5.2(3)]. The Right to Object exists only with respect to hearings of "substantive matters" (which again will be most hearings involving liability and compensation assessments).

Rule 7.2(2) provides for the right of a party to object in writing to the electronic hearing upon receiving notice of it. A "Fact Sheet" (Sept 2003) circulated by the Board requires that an objection be filed no later than 15 days before the electronic hearing is scheduled. This "right to object" is also embodied in "Fact Sheet: Electronic Hearing Procedures" (Sept 2003), provided to parties prior to the conduct of an electronic hearing.

The Rule does not specify the grounds of the objection but it is implicit from s.7.2(1) and SPPA 5.2(2) that the grounds are that the electronic procedure is "likely to cause the party significant prejudice" [SPPA s.5.2(2)].

A written objection should spell out the evidence and reasoning for the concerns about 'prejudice'. Concerns might include (in addition to those listed below) the non-availability of adequate telephone services to a party, impaired hearing and/or speech, anxiety of an unrepresented party with such a procedure, and the need for in-person credibility findings and cross-examination.

The Board, when ruling on the objection, should consider [Rule 7.2(3)]:

• the possibility of significant prejudice to any party;
  
  
• whether the nature of the evidence is appropriate for an electronic hearing including whether credibility is an issue and the extent to which facts are in dispute;
  
  
• the convenience of the parties;
  
  
• the cost, efficiency, and timeliness of the proceeding;
  
  
• the need to ensure a fair process, taking into consideration the safety and security of the parties;
  
  
• the desirability or necessity of public participation or broad public access to the Board?s process;
  
  
• fulfillment of the Board's statutory mandate;
  
  
• any other relevant factor.

The above factors, while not enumerated in the authorizing provisions of the SPPA are reasonable and balanced criteria very likely to be held to accord with principles of natural justice by a reviewing court.

In deciding to hold an electronic hearing, the Board may also impose conditions it considers appropriate, including a condition that counsel for the alleged offender attend at a remote location with their client (typically again, in situations of incarceration) [Rule 7.2(4)].

(c) Notice of Hearing

A Notice of Hearing for an electronic hearing must include [SPPA s.6(5)]:

• the time and purpose of the hearing, and details about the manner in which the hearing will be held;
  
  
• if it is the case, a statement that the only purpose of the hearing is to deal with procedural matters;
  
  
• unless the electronic hearing deals with procedural matters only, a statement that an electronic hearing may be avoided if a party satisfies the tribunal that "holding the hearing as an electronic hearing is likely to cause the party significant prejudice, require the tribunal to hold the hearing as an oral hearing, and an indication of the procedure to be followed for that purpose";
  
  
• a statement that if the party notified does not participate in the hearing in accordance with the Notice - nor move to avoid an electronic hearing (as above) - then the tribunal may proceed without the party's participation and the defaulting party will not be entitled to any further notice in the proceeding.

The Rules add only that if the hearing is to be electronic the Notice of Hearing shall include "details of the manner in which the hearing is to be conducted" [Rule 2.4].

(d) Default Proceedings (Electronic Hearings)

Failure of a party to participate in an electronic hearing for which Notice of Hearing has been given, or to object to the electronic hearing as "likely to cause the party significant prejudice" (see above), may result in the hearing proceeding without them, and that party receiving no further notices in the proceeding [SPPA s.7(3)].

(e) Conduct of Hearing

If an electronic hearing is held, the rules for an oral hearing shall apply where applicable, subject to any modification that is required for the electronic medium [R7.2(5)] (see the section on "Oral Hearings", above).

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 [SPPA s.5.2(4)]. Anticipation of a problem with this may be a ground of objecting to the electronic hearing.

Tribunals may make such orders and give such directions at an electronic hearing as it considers necessary "for the maintenance of order at the hearing" [SPPA s.9(2)]. On failure to obey or comply with such orders or directions by any person (thus including both parties and witnesses), the tribunal may call "for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose". [SPPA s.9(2)]

It may be Board practice to only use electronic participation for offenders. "The Board's "Fact Sheet: Why is There a Hearing" (01 Feb 2006) states:

If the Board decides that the hearing will be electronic, this means one party will participate by means of a telephone conference call. Minor victims are not required to attend.

7. Language of Proceedings

In all cases where any language interpretation or non-English proceedings are required, the party so requiring should notify the Board of the need as soon as known. The Board will make the arrangements.

CICB proceedings may be conducted all or in part in either French or English [Rule 7.4(1)].

The cost of an interpreter will be born either by the Board or the party. Where the hearing is being held in an area covered by the French Language Services Act, the Board shall pay the cost [Rule 7.4(2)]:

French Language Services Act: s.5 and Schedule
Foreign language interpreting will be provided at the Board's expense [Rule 7.5]. Interpreters shall be independent, and shall state under oath or affirm that they will interpret accurately.


8. Constitutional Issues

(a) Overview

Whenever a party wishes to question the constitutional applicability of a law or rule it must provide special "Notice of Constitutional Question" to the Board, to the other parties, and to the Attorney-Generals of both Canada and Ontario ("A-Gs") [Courts of Justice Act, s.109; Rule 5.2].

The A-G's may then, if they choose, participate in the proceeding as a party, calling evidence and making legal submissions on the constitutional questions(only). While Notice of Constituional Question is always required, practically the AG will only actively intervene if important constitutional issues or governmental interests are involved. They will advise you if they plan to participate or not.

(b) Examples of Constitutional Issues

Canada, as a federal country, divides governmental responsibility between the federal and provincial governments ("division of powers"). There are further legal allocations relating to natives, some individual provinces, language rights and several other issues. Where a lawsuit involves an allegation that the application of the Act or regulation, is invalid on "division of powers" or any other constitutional grounds, then Notice of Constitutional Question is required [CJA s.109].

As well, the Canadian Charter of Rights and Freedoms is also part of the Canadian constitution, granting individual rights and freedoms to citizens against government authority and actions. On rarer occasions the application of "common law" (ie. judge-made law) may also invoke constitutional issues. Any such challenges require Notice of Constitutional Question.

However - just because an issue before the Board is constitutional it does not expand the remedial jurisdiction of the court. Practically, the only constitutional remedies available in front of the Board are those that is has in non-constitutional cases: procedural orders and whether to make or refuse to make a compensation award. Similarly, the Board cannot declare a law or rule "unconstitutional" or "null and void", it can just decide not to apply an unconstitutional law in the proceeding before it.

(c) Notice of Constitutional Question

Notice of Constitutional Question shall be served on all parties and the A-Gs, and filed with the court, "as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise". If Notice is served late, you should expect the Board to be both annoyed (which can result in negative cost awards) and to either adjourn the proceeding to give the A-Gs time to consider the matter - OR in some cases to bar the late party from raising constitutional issues at all. In the case of a bar on constitutional issue the court would still continue to hear the case on non-constitutional issues, if any [CJA s.109(2)].

Notice of Constitutional Question

9. Public Access

(a) Overview

The law and rules which govern public access to CICB hearings, documentation and publication of matters stemming from such hearings is contributed to from a variety of legal sources. These include the Compensation for Victims of Crime Act (CVCA), the generally-applicable provisions of the Statutory Powers Procedures Act (SPPA), the specific tribunal rule-making authority set out in the SPPA, and Board Rules 7 and 11.

This variety of sources can give rise to concerns of paramountcy between the provisions although they do not appear to be in significant conflict. Readers needing to explore this issue are referred to the discussion of the topic "Conflict Between Rules" in the SPPA chapter "Tribunals and Their Rules".

Administrative Law (Ontario)(SPPA): Ch.1: Tribunals and Their Rules
(b) Closing Hearings

Hearings are open to the public except where the Board is of opinion that a closed hearing is necessary because a public hearing would [CVCA s.12]:

• prejudice the rights of alleged offender regarding any criminal proceedings;
  
  
• not be in the interests of the alleged victim or their dependents, when the allegations are of a sexual offence or child abuse. (ie. confrontation stress)

These criteria are repeated in Board Rule 7.3 though are now extended to "part or whole" of a hearing - and supplemented by situations where [these are drawn from SPPA s.9(1)]:

• matters involving safety and security may be disclosed;
  
  
• such intimate personal, medical or financial matters may be disclosed that the desirability of avoiding disclosure, in the interest of any person affected or in the public interest, outweighs the desirability of adhering to the principle that hearings should be open to the public.

Barring an express Board order to the contrary, the following may attend a closed hearing [Rule 7.3(4)]:

• witnesses;
  
  
• Board staff;
  
  
• Parties and their representatives, and
  
  
• others as allowed by the Board.

Rule 7.3(3) also gives the Board broad authority to impose conditions on the conduct of closed portions of hearings.

Electronic hearings shall generally be open to the public unless the tribunal is of the opinion that it is not practical to do so [SPPA s.9(1.2)]. Exceptions to this rule may be made under the same SPPA s.9(1) conditions mentioned above for closing hearings from the public. Rule 7.3(1) adds "the Board is not required to provide facilities to allow public participation in or attendance at an electronic hearing.

(c) Publication Bans

. Authority to Order

The Board may order a publication ban on "any report or account of the whole or any part of the evidence at a hearing" where it considers it necessary. However, in making such an order the Board shall consider the public interest in being informed of the "principles and nature of each case" [CVCA s.13(1)].

. Procedure to Challenge

Board Rule 11 sets out a procedure for challenging a publication ban. A motion (see the chapter "Motions") to lift a publication ban may be brought by the Board, the victim or their dependant, the Minister or the alleged offender. Notice of such motion shall be made to all "relevant parties" by the moving party and as well the Board shall serve Notice of Hearing of the motion to the parties, setting out the date and time it will be heard.

The motion shall be heard by a two-member panel, which shall consider in its decision:

• whether the circumstance which justified the making of the publication ban in the original order have ceased to exist and,
  
  
• any other consideration the Board determines is relevant.

. Offence

Violation of a publication ban is an offence punishable on conviction to a maximum fine of $5,000 and maximum imprisonment of a year, or both [CVCA s.13(2)]. The maximum punishment for corporations is $50,000 [CVCA s.13(3)].

(d) Access to Documents

The SPPA is silent on general public access to documents (ie. evidence and pleadings), addressing it only regarding written hearings (below). It is a general rule within the civil courts that all court-filed documents are available for public review, subject to a court order closing the file. This general principle is reinforced by implication in the case of the CICB by its Rule 7.3(5) (discussed below) which sets out terms for separating some documents from the "public record".

When a written hearing is to be held, the public is generally entitled to "reasonable access to the documents submitted" [SPPA s.9(1.1). Exceptions to this rule may be made under the same SPPA s.9(1) conditions mentioned above for closing hearings from the public.

Exhibits, documents and orders "relating to" closed portions of a hearing are to be marked confidential and separated from the public record, available only by Board order or "as otherwise authorized by law" [Rule 7.3(5)].