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Administrative - Electronic Hearing. Floria v. Toronto Police Service
In Floria v. Toronto Police Service (Div Ct, 2021) the Divisional Court considered when a hearing was oral and when it was electronic:[17] The appellant argues that the Hearing Officer had no authority to permit the video evidence, and the Commission erred in upholding her ruling to that effect. The appellant submits that s. 5.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) permits an electronic hearing only if the tribunal has adopted rules pursuant to s. 25.1 of the SPPA to deal with electronic hearings. At the time the disciplinary proceeding commenced, the rules of procedure applicable to disciplinary tribunals of the TPS did not provide for electronic hearings.
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[24] In my view, the hearing before the Hearing Officer was an oral one, and s. 5.2 does not come into play. The parties and their counsel were present before the Hearing Office throughout the proceeding, as were most witnesses. None of them were participating electronically. Only the witness S.T. gave evidence electronically. As the Hearing Officer said in her ruling allowing both S.T. and G.T. to testify by video (Ruling at p. 20, AB at p. 281):Essentially, this is an oral hearing wherein two witnesses will provide their evidence through a video link. The remainder of the witnesses will provide viva voce evidence. This decision is of particular application and is specific to the facts of this case and the extreme circumstances of this case. ....
[29] In the present case, s. 5.2 deals with electronic hearings as an alternative to oral hearings. By its terms, s. 5.2 does not prevent a tribunal from hearing the evidence of a witness electronically in a hearing that is otherwise an oral one. As I have said above, the hearing in this matter was an oral one, with the parties, counsel and the tribunal member present in the same room. The fact that S.T. gave his evidence via Skype did not change the nature of the hearing.
[30] The appellant argues that the Hearing Officer had no authority to hear video evidence, unlike the Superior Court in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 5385. It is true that the Rules of Civil Procedure expressly allow video evidence in civil proceedings. However, Chandra is of no assistance in this case. I agree with the Commission that the Hearing Officer had the power, pursuant to s. 25.0.1 of the SPPA, to control her own procedures and practice, and that section allowed her to accept the evidence of a witness by video.
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