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Return to First Part of Chapter
3. Tribunal Rules of Evidence
(a) Overview
With a few exceptions, the Statutory Powers Procedures Act (SPPA) implements a broad relaxation of the rules of civil evidence discussed in the previous section. This relaxation is essentially identical to that applied in the Ontario Small Claims Court [Courts of Justice Act, s.27]: SPPA s.15(1)
Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious. Of course, despite this relaxation, it is still useful to consider evidence in its traditional categories as they will inform the treatment of the evidence by the tribunal. Thus while a tribunal may (it can still refuse) formally admit into evidence more statements and documents than a court might, that does not necessarily mean that the evidence will all be given the same "weight". Naturally, evidence will be 'weighed' differently depending on how admissible it is under those more formal rules.
(b) Privilege and Statutory Inadmissibility Rules Preserved
As quoted above, s.15(1) of the SPPA allows a tribunal to override most civil evidence law principles. However s.15(2) and (3) do preserve some important evidence principles and rules: SPPA s.15(2)
Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceeding arises or any other statute.
SPPA s.15(3)
Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding. Thus, rules of "privilege", and any statutory rules (ie. rules spelled out within legislation) which make evidence inadmissible or otherwise limit its use are still applicable under the SPPA.
"Privilege" is explained briefly in section 2(j) above, and when applicable it is generally a simple exclusionary rule. However statutory rules barring or limiting the admissibility and use of certain evidence in the many tribunals out there can be numerous (as found in the Ontario Evidence Act and numerous other statutes). Therefore I will not attempt to discuss them all here, but when I post a Legal Guide on any specific tribunal I will try to include all such relevant provisions in a useful fashion.
As an example of the conflict between statutory inadmissibility rules and s.15(2)(3) SPPA, a more detailed discussion of "Business Records" (following) may be enlightening.
(c) Business Records
An interesting and potentially important example of the conflict between statutory inadmissibility rules and the relaxation of evidence rules embodied in SPPA s.15 arises over whether the heavily-used (at least in the Superior Court) business records notice requirement of s.35 of the Ontario Evidence Act, which embodies the business records hearsay exception [see section 2(i) above], is required to be used before tribunals.
Business records include a very broad range of documents and records, the bulk of documentary evidence used in the courts today. Section 35 provides that business records may be admitted despite their hearsay nature if the proper notice has been given and the other party given an oppourtunity to inspect the original documents. Arguably then, without proper notice being given, the business records are hearsay and "inadmissible" by virtue of s.35, potentially invoking SPPA s.15(2) and (3).
However, s.35(5) of the Evidence Act, quoted here, suggests that the lax admissibility standards set out in SPPA s.15(1) would prevail in any event: Evidence Act (Ontario)
s.35(5)
Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. Similar reasoning was recently applied in VFC Inc v Balchand (Div Ct, 2008) to hold that the giving of the Evidence Act business records notice was not a prerequisite to the admission of hearsay documents in the Small Claims Court.
That said, as a practical matter compliance with the business records notice is uncommon in tribunal practice. While the s.15(2) and (3) SPPA exceptions discussed above are important, in my experience statutory inadmissibility provisions rarely arise in the day-to-day conduct of tribunal practice.
In any event, the Evidence Act notice provisions often only require pre-trial disclosure of documents to render them admissible, a procedure which tribunals often require themselves in their own procedural rules (see the discussion of "Tribunal Rule-Making Powers: Document Disclosure" in Ch.14). As such the essential purposes of Evidence Act notices are usually served in tribunal proceedings in any event.
(d) Oaths Not Necessary
A further sign of the relaxed evidentiary attitude taken in tribunals is that evidence need not be given under oath or affirmation (though many presiding tribunal members in different tribunals do this anyway) [SPPA s.15(1)].
The "no-oath required" [SPPA s.15(1)] rule is important when the evidence of children or mental competency issues are involved. In traditional evidence law the concern with such witnesses is their ability to "understand the nature of an oath or solemn affirmation". The "no-oath required" rule allows the tribunal to dispense with the need to make a psychological inquiry into this issue, allowing the tribunal to admit their evidence, and to account for any competency concerns in the "weight" to be attributed to their testimony.
That said, the tribunal does have the discretion to insist on an oath or affirmation by a witness, and tribunal members have the power to administer such oaths or affirmations [SPPA s.22].
In today's legal proceedings, "swearing a witness" covers both the old-style bible oath (now any religious text suited to the witness) and the more generic "affirmation", which is little more than solemn promise to tell the truth. When an oath is anticipated, it is respectful for the party calling the witness to ask them which they would rather do and to ensure that a copy of their religious text is available (bring one or check with tribunal staff beforehand if they have one) if one is needed.
4. Good Character at Issue
Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, that party is entitled to pre-hearing disclosure of reasonable information regarding such allegations [SPPA s.8]. This rule is counterpart to a civil evidence principle that allegations of personal impropriety should be 'pleaded with particulars' (ie. lots of detail).
This rule can be used to compel the alleging party to provide (before the hearing) greater details of anticipated testimonial evidence.
5. Documents Copies
There is a general evidence rule in courts that failure to present important evidence in the best form available (eg. original testimony over hearsay, original documents over copies, in-person testimony rather than written witness statements) will hurt your case and maybe even result in the evidence being excluded, or adverse inferences being drawn against the presenting party. However, in an age where paper (and now electronic) documents are an integral part of business and human interaction this requirement would place a huge burden on tribunals of calling witnesses involved with the maintainance of record-systems, former employees who authored documents, those who had custody of documents over time, etc.
Avoiding this burden, which has been relaxed significantly even in the higher courts, has now been left to the discretion of the tribunal (where copies are nearly universally allowed): SPPA s.15(4)
Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing. In any event, where pre-hearing documentary disclosure rules are created by tribunals under their s.25.1 SPPA authority (see the discussion of "Document Disclosure" under "Tribunal Rule-Making Authority") or otherwise, the burden of challenging the authenticity is practically shifted onto the party receiving the disclosure. As such the situation is similar to the operation of the Business Records Notice (discussed above) where other parties are presented with copies of (or a list) of documents intended to be used, and may then examine them to satisfy themselves as to their authenticity. If they are unsatisfied then they make that an issue, but otherwise in practice all presented copies are assumed to be authentic.
Similarly, where documents (original and otherwise) are filed in evidence, the tribunal may give leave for them to be copied and the copies used in evidence, with the filed versions released as directed. As well, the tribunal may allow documents in evidence to be copied and the copies certified as authentic and then released to the person who filed it or otherwise, as directed [SPPA s.15(5)]. Copies so certified are admissible in evidence [SPPA s.15(6)].
6. Use of Evidence from Other Proceedings
If the parties to a proceeding consent, the tribunal may treat evidence admitted in other proceedings - including proceedings of any other tribunal or court, whether in or out of Ontario - as evidence admitted in the present proceeding [SPPA s.15.1(1)(2)].
Section 15.1(3) states that the above authority to admit evidence from other proceedings is "in addition to the tribunal's power to admit evidence under s.15". It is an interesting and open question whether this allows the restrictions in s.15 (re privilege and statutory inadmissibility) to be overridden in the present tribunal proceeding if they have been overridden in other proceedings.
Where proceedings within the same tribunal involve similar questions of fact, law or policy and are heard at the same time under s.9.1(1)(b) (with the consent of the parties), evidence admitted in one of them may be used in the other, if the parties to the other proceeding consent [SPPA s.9.1(5)].
7. Settlement Privilege
The SPPA allows tribunals to make rules providing for alternative dispute resolution (ADR) and the involvement of mediators [see the Ch.12: "Tribunal Rule-Making Authority: Alternative Dispute Resolution (ADR)"].
Those appointed as mediators or in a similar role under ADR (such as conducting a pre-hearing conference) to facilitate settlement of a proceeding may not be compelled to testify or produce documents with respect to matters that came to their knowledge in the course of those duties, a principle that is sometimes called 'settlement (or negotiation) privilege'. The prohibition on the compellability of such testimony applies both to the proceedings in which the settlement efforts occur and to any other other administrative or civil court proceedings [SPPA s.4.9(1)].
Similarly, no notes or records kept by such a person are admissible in any administrative or civil court proceeding [SPPA s.4.9(2)].
8. Evidentiary Notice
There is a principle of civil evidence law known as "judicial notice" or "evidentiary notice". It allows a judge or adjudicator to "take notice" (ie. directly admit into evidence) facts so "notorious" (well-known) that no one can credibly dispute them (eg. the sun will rise tomorrow, winter in Ontario is cold, drinking alcohol impairs cognitive abilities, etc).
This principle is imported into tribunal proceedings and is extended to "any generally recognized scientific or technical facts, information or opinions within [the tribunal's] scientific or specialized knowledge" [SPPA s.16].
As a matter of practice, any reliance on evidentiary notice should be accompanied by good faith attempts to include such evidence within any documentary or other disclosure duties that apply. Failure to comply with these may result in the tribunal refusing to exercise its discretion in favour of taking notice of facts: Vance v Hardit (Div Ct, 1985). In any event, reasonable prior notice to the tribunal and parties of any intention to seek the exercise of evidentiary notice by the tribunal would be prudent.
Care must be taken in relying on this principle. Whether "evidentiary notice" of facts will be acknowledged by the tribunal will not normally be known until the tribunal says so when the notice issue is advanced. If they do not then a party may be left "stranded" without vital proof. Preliminary efforts to obtain other party consent to such agreed facts would be prudent. In some cases - where preparing evidence of obvious things imposes a burden - a preliminary motion to the tribunal (where available) on the issue may be merited.
9. Witnesses
(a) Overview
Note from Ch.4 ["Hearings"] that hearings may be oral, written or electronic (the latter two when the tribunal has made s.25.1 rules for them).
At oral and electronic hearings the parties have the right to call, examine and cross-examine witnesses, present evidence, and make oral submissions [SPPA s.10.1]. Procedures for the presentation of testimonial evidence are discussed generally in the Small Claims Court Isthatlegal Legal Guide. The procedure in most tribunals is typically similar:
Small Claims Court (Ontario): Ch.14: Trial
The SPPA provides that tribunals may "reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding." [SPPA s.23(2)].
Witnesses may be heard in panels of two or more people, but only after the parties have had a chance to make submissions on that manner of proceeding [SPPA s.15.2]. This procedure is unusual. Panels of witnesses would be most appropriate for expert witnesses, not for lay witnesses where issues of credibility are primary.
(b) Witness Rights
It sometimes happens that witnesses feel that their testimony may implicate them either criminally or civilly, or impact on some duty that they have - such as confidentiality regarding trade secrets or law enforcement techniques. Witnesses have the right to be advised by a representative (eg. lawyer or agent) as to their rights - but such legal representatives are not entitled to any further participation in the matter unless permitted by the tribunal [SPPA s.11(1)]. When proceedings are ordered closed to the public, the witness' representative is also excluded except when the witness is giving evidence [SPPA s.11(2)].
Further, the Tribunal may "exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing ... as an adviser to a witness if it finds that such person is not competent properly to ... advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser." [SPPA s.23(3)] Note that, under the Access to Justice Act, 2006 paralegals came under Law Society governance, and thus are exempted from this provision - though other unlicensed agents are not.
A further - and key - protection for witnesses is that nothing they testify to can be used in evidence against them in any subsequent proceedings against them, either civil or criminal, except in a prosecution for perjury (lying in a legal proceeding) [SPPA s.14(1)].
(c) Summons to Witnesses
. Overview
Tribunals (usually at the request of a party) may issue a "summons" to a witness, compelling them to personally give evidence under oath or affirmation and to produce documents or other evidence within their control as specified at an oral or electronic hearing [SPPA s.12(1)]. Typically a summons is used to compel personal attendence at an oral hearing, but it can be used for electronic hearings as well.
As summons must be served personally and must be signed, they are typically issued in written form.
. Summons to Witness (SPPA)
Summons are not only used for antagonistic or unfriendly witnesses. Many institutions have a policy, driven by liability concerns (or sometimes sheer bloody-mindedness it seems), that they will not allow a staff-person to attend court or a tribunal in a professional capacity without having been served with a summons.
As well, sometimes a summons may be served to give a person a 'good excuse' so they will not be blamed by an employer who resents their absence. Lastly, a summons is a good (and prudent) way to prepare for last-minute "cold feet" by a friendly witness who, despite their verbal assurances, may not attend for whatever reason.
Summons are directed at individual people. A corporate defendant should not be served with a summons naming the corporation and they may not send who they want as a witness in response to the summons. This presents the party wanting to issue the summons with the task of deciding who (and there can be more than one) is the best witness to compel from "the other side". It is common to have corporate witnesses on the stand constantly ducking questions by alleging that the area of inquiry is "not my responsibility", or "you should ask that of X, not me".
Unlike courts (where court clerks issue blank summons for use by parties), tribunals tend to closely control the issuance of summons and require an explanation of their need in each case. Each tribunal will have its own practice and requests should be made well in advance of the hearing where the testimony will be required. Where the tribunal panel is only one-person, summons shall be signed by the presiding member of the proceeding, and where the panel is of more than one member they shall be signed by the Chair or otherwise as the parent statute allows documents to be signed on behalf of the tribunal [SPPA s.12(2)].
Also unlike court summons, tribunal summons do not have the benefit of being 'adjournment-flexible'. For instance, the Small Claim Court [R18.03(5)] has a rule that "(a) summons to witness continues to have effect until the attendance of the witness is no longer required." This court rule accomodates for delay and adjournment, so that once a summons is properly served the witness is legally "bound" to re-appear whenever their attendence is required by the party who summonsed them through adjournments or re-attendences. However, the SPPA lacks this accomodation - and an unco-operative witness (or their employer) may make the witnesses' timely attendence difficult, or even impossible.
You can see how this 'tail wagging the dog' problem can arise in this Ontario Special Education Tribunals Practice Direction [https://tribunalsontario.ca/documents/oset/Practice%20Directions%20-%20Issuing%20a%20Summons.html], where the tribunal anticipates unseemly lengths to reverse-accomodate the witness. Parties should anticipate significant problems with the use of tribunal summons.
In any event, the form for SPPA Summons is here: Summons.
. Service of Summons
Summons must be "served personally" [SPPA s.12(3)]. As well the witness is entitled to witness fees and travel allowance as though they were a witness in a Superior Court proceeding [RCP Tariff A, SPPA s.12(3.1)]:- Witness Fee $50.00/day
- Travel and Accomodation Allowance
. where witness resides in city or town of hearing: $3.00/day
. where witness resides within 300 km: .24/km each way
. where witness resides more than 300 km away: minimum return air fare, plus .24 km to and from airport, home and place of hearing
. overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay: $75.
The SPPA does not define what "served personally" means or whether it is equivalent to the civil court service concept of "personal service". However the two concepts are so logically similar that some guidance may be taken from the similar provisions for personal service under the Small Claims Court rules:
Small Claims Court (Ontario): Ch.6, s.2: Service of Documents: Personal Service
. Bench Warrant on Default
Where a summons has been properly served, but the witness has failed to comply with its requirements - and the evidence sought is material to the proceeding - any party to the proceeding or the tribunal itself may make an application to the Superior Court for the issuance of a bench warrant for the arrest of the witness [SPPA s.12(4)].
Where the tribunal applies for the bench warrant, proof of the fact that the witness' evidence is material to the proceeding may be made by a "certificate" of the tribunal (where single person constitutes tribunal) or the tribunal chair (otherwise) [SPPA s.12(6)]. Where a party makes the application for a bench warrant, such proof may be made by way of affidavit [SPPA s.12(7)]. Proof of service of the summons in any event may be made by way of affidavit [SPPA s.12(5)].
The bench warrant shall direct any police officer to apprehend the witness anywhere in Ontario and bring them before the tribunal forthwith. The court may order the witness to be detained until their presence as witness is no longer required - or to be released on a recognizance, with or without sureties (ie. bonds), which may be forfeited on further default by the witness [SPPA s.12(4.1)].
The form for this is here: Warrant for Arrest (Defaulting Witness)
. Contempt Proceedings on Default
Where a summons has been properly served, but the witness has without lawful excuse:- failed to attend as required,
- attended but refused to give an oath or affirmation,
- refused to provide documents as properly required, or refused to answer proper questions;
or
- otherwise commits contempt
then the tribunal or a party may make motion to the Divisional Court to have the witness found in contempt as though they had committed contempt against the court [SPPA s.13(1)]. Parties who fail to attend a pre-hearing conferences when directed to by the tribunal may also be subject to these contempt proceedings [SPPA s.13(2)].
Procedures for court contempt applications are set out in the Rules of Civil Procedure: RCP R60.11. Procedures for contempt proceedings are discussed at length in the case of McNaught v TTC 74 OR (3d) 278 (Ont CA, 2005). This case is essential reading to anyone involved in such proceedings.
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