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Human Rights (Ontario) Law
(30 September 2009)

Chapter 15 - Evidence


  1. Overview
  2. General Evidence Rules
  3. Summons
  4. Evidence-Compelling Orders
    (a) Overview
    (b) Types of Evidence Orders
    (c) Procedures for Obtaining Evidence Orders
    (d) Consequences of Contravening Evidence Orders
  5. Commission Evidence Inquiries
    (a) Overview
    (b) Entry Powers
    (c) Demand Powers
    (d) Search Warrants
    . Overview
    . When Warrants May Be Sought
    . Procedures
    . Search Warrant Terms
    . Enforcement
    (e) Duty to Comply with Entry and Demands
    (f) Access to and Return of Seized Items
    (g) Evidentiary Use of Inquiry-Obtained Documents
  6. Tribunal Evidence Inquiries
    (a) Overview
    (b) Criteria for Initiating Tribunal Inquiry
    (c) Procedure for Tribunal Inquiry Request
    . Request for Inquiry
    . Response to Request for Inquiry
    (d) Entry Powers
    (e) Demand Powers
    (f) Duty to Comply with Entry and Demands
    (g) Access to and Return of Seized Items
    (h) Evidentiary Use of Inquiry-Obtained Documents
  7. Evidence re Special Programs
  8. Evidence Restrictions
    (a) Overview
    (b) Solicitor-Client Privilege
    (c) Negotiation or Settlement Privilege
    (d) Non-Compellability of Tribunal and Commission Members and Employees
    (e) Confidentiality of Application Documentation
  9. Evidence Disclosure
    (a) Overview
    (b) Document Disclosure
    . Overview
    . First (Full) Documentary Disclosure
    . Second ('Hearing') Documentary Disclosure
    (c) Witness Disclosure
    (d) Consequences of Non-Disclosure
    . General Consequences
    . Specific Consequences Re Witness Evidence Summary
    . Criminal Code
  10. Evidence on Motions

------------------------------


1. Overview

For a large part, the evidence provisions of the Ontario Human Rights Tribunal are the same as those for most Ontario administrative tribunals, and on those issues I link the reader below to discussions elsewhere in my Isthatlegal.ca Legal Guides (below).

However Code procedures provide for several unique evidence-gathering orders and evidentiary 'inquiry' authorities (held by both the Commission and the Tribunal) that the Code - and the Tribunal itself through its Rules - have created. As well, not uncommon to modern legal procedure, the Tribunal Rules mandate documentary and witness evidence disclosure both early on the in the proceeding and again just before hearing. All of these Code-unique topics are discussed in detail in this chapter.


2. General Evidence Rules

As noted above, most evidence rules applicable to Tribunal procedures and hearings are common to other administrative tribunals in Ontario.

As I have written on these basics in the Isthatlegal.ca Administrative Law (Ontario) Legal Guide at this link, I will just refer the reader to that discussion:

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

That said, where the Code-specific evidence provisions discussed in the balance of this chapter conflict with those basic provisions, the more specific Code provisions will govern. While I will try to note such conflicts where they occur I will probably miss some, so readers should review both the general (at the above link) and the specific Code evidence provisions (in this chapter).


3. Summons

"Summons" are essentially orders to persons (be they parties or non-parties to the proceeding), to attend a hearing as a witness and to provide evidence. Summons can also extend to requiring the witness to bring with them documents that are within their control.

The general law around administrative summons is discussed at the following link, and it applies to Code procedures, except as noted immediately below:

Administrative Law (Ontario)(SPPA): Ch.6, s.9: Evidence: Witnesses

Review of the discussion at that link is essential background for anyone intending to use a summons. The only significant Code variation from the 'standard' summons practices discussed at that link is that the Tribunal will issue blank summons (that is, summons blank as to the witness name) [Rule 3.1]. Other tribunals often require a detailed explanation justifying why summons are required, so the issuance of blank summons necessarily dispenses with that need as well.

As is the usual rule however, service of the summons is the responsibility of the person using it [Rule 3.2], however unlike summons practice just about everywhere else there is no requirement that a summons be served personally (ie. by hand delivery) on the witness - apparently any of the general service methods may be used [as discussed in Ch.14, s.2(a): "Service: Service: Regular Methods"].


4. Evidence-Compelling Orders

(a) Overview

Building on the principle implicit in summons use (see 3 above) that anyone (even non-parties) can be compelled as witnesses, the Tribunal has been given (and has given itself through its Rules) significant authority to compel both party and non-party evidence, in ways that exceed the traditional ones of testimony and document disclosure.

(b) Types of Evidence Orders

Evidence orders available to the Tribunal include the following [Code
s.43(e,f); Rule 1.7(i,k,p-r)]:
(i) Examine Records and Inquire

"make or cause to be made an examination of records or other
inquiries, as it considers necessary"

This is an ill-defined authority that can be read down to mean simply that the Tribunal can examine evidence offered by parties and ask questions about it. The absence of any requirement that a party request be made before this authority can be applied clearly implies that it can be Tribunal-initiated. At most it seems to empower a Tribunal member to ask questions of parties, which is something that most judges would not do, but which modern administrative practice tolerates widely.

If it is taken in its broader sense of wide, third party
investigation it becomes untenable in its breadth, unlimited by
even the police-power constraints of warrants,
self-incrimination protections and other standard privacy
limitations.

(ii) Compel Parties to Adduce Evidence or Produce Witnesses

"on the request of a party, direct another party to adduce
evidence or produce a witness when that person is reasonably
within that party's control"

There is a legal adage that there is 'no property in witnesses',
but the frequent reality is that some witnesses are friendly to
one party and antagonistic to the other (or, in the case of
employees, subject to continued influence by a party). This
authority tries to compel a party, on motion by another party,
to use their influence to provide a more complete evidentiary
record, both through testimony and documentation.

(iii) Compel Anyone to Assist With Document Production

"require a party or other person to produce any document,
information or thing and to provide such assistance as is
reasonably necessary, including using any data storage,
processing or retrieval device or system, to produce the
information in any form"

This authority can be used to compel anyone (party or non-party)
to assist in the production of "any document, information and
things", and specifically includes computer and electronic
storage systems. It is unique in that it compels their
"assistance" in the production of such records, not mere
obtaining and production of pre-existing hard copies. This
authority can extend to require the person to actually produce a
document not yet in existence, such as a customized database
report.

Note again the absence of any requirement that a party request
be made before this authority can be applied clearly implies
that it can be Tribunal-initiated.

(iv) Require Anyone to Provide a Report, Statement, Affidavit or Testimony

"on the request of a party, require another party or other
person to provide a report, statement, or oral or affidavit
evidence"

This may be the most adventuresome of these new evidence
ordering powers, and perhaps the one most likely to be
controversial. On it's face it authorizes the Tribunal, on
motion of a party, to require anyone to prepare evidence in any
of several written forms. While it is common present practice
for expert witnesses to be hired by a party and paid to prepare
reports for use in the litigation, to unilaterally demand the
same from them or similar witnesses is an intrusion that would
most likely be vigorously resisted, particularly by expert
witnesses. Then of course there is the matter of payment for
their services, which this Rule is entirely silent on.

While summons have the similar function of compelling unwilling parties to provide evidence, they are rarely used against professional witnesses (and in any event are accompanied by both witness and travel fees). In such cases unwilling witnesses are sometimes accomodated by acceptance of written-form evidence (ie. affidavits) in lieu of a personal attendence, IF all parties consent to the admission of such substitute evidence.

I note that the empowering Code provision for this part of the
Rule reads "provide a statement or oral or affidavit evidence",
which could easily be read down to cover non-expert and
non-report situations only, a result much more in accordance
with traditional evidence practice. My expectation is that this
will happen and the authority will be used only conservatively,
if at all.

(v) Cross-Examination on Affidavit

"direct that the deponent of an affidavit be cross-examined
before the Tribunal or an official examiner"

It is a common, and an as-of-right civil court practice for opposing parties to require the deponents of affidavits to attend before an official examiner to be cross-examined, with a transcript being prepared afterwards for reference and trial use. This similar Code authority simply permits the Tribunal to require cross-examination whenever affidavit evidence is offered as a substitute for viva voce testimonial evidence.

Note again the absence of any requirement that a party request
be made before this authority can be applied clearly implies
that it can be Tribunal-initiated.
(c) Procedures for Obtaining Evidence Orders

While normally only some of the above orders can be initiated by the Tribunal on its own [i,iii and v], any of them may be sought by a party on motion [see Ch.11: "Motions"] (although the Tribunal can always waive the application of the Rules to itself: Rule 5.2).

While any motion may normally be sought orally at a hearing [Rule 19.1] (though formal procedures are preferred where possible), orders under (b)(iv) above ["non-party provide a report, statement or oral or affidavit evidence"] or (v) above ["cross-examination on affidavit"] above must be "in writing and must be delivered to the non-party in addition to the other parties to the proceeding" [Rule 19.3].

(d) Consequences of Contravening Evidence Orders

If a person fails to abide with an order made under (b)(ii) [adduce evidence within party's control], (iii) [produce or assist with document production] or (iv) ["non-party provide a report, statement or oral or affidavit evidence"] above, the Tribunal may "draw an adverse inference from (their) failure to comply, in whole or part" [Code s.43(9)].

This rule is a form of a general evidentiary rule that where a party has relevant evidence available to it but fails to adduce it, that the court or tribunal may presume that the evidence was negative against their case. It is not a hard and fast rule (particularly where a witness is available but adverse in interest) but in situations where an obvious witness is not called, it can operate like the proverbial 900-lb gorilla in the room. Of course in the similar situation where a party calls a witness in direct examination but studiously avoids a central issue, it is very likely that either other parties or the Tribunal itself will bring the topic up in cross-examination.


5. Commission Evidence Inquiries

(a) Overview

The Human Rights Commission is given extensive evidence-gathering ('inquiry') authority under the new Code [Code s.31(1)]. These inquiry powers include those of demand, entry and - with judicial approval - search warrant.

Such inquiries are conducted by Commission appointees, who are required to produce proof of their appointments on request [Code s.31(2,3)].

(b) Entry Powers

Absent emergency situations, wherever a "reasonable expectation of privacy" is held to exist legally, it is necessary for police or any government authority to obtain judicial pre-authorization before they can enter premises without the consent of the occupier (typically the tenant or owner). In the Code this line is drawn at the distinction between 'dwellings' and other premises [Code s.31(6)]. Search warrants are discussed in (d) below.

When conducting an 'inquiry' (and subject to Charter constraints which are beyond the scope of this Legal Guide) the Commission has warrantless entry authority over "any lands or any building, structure or premises where the person has reason to believe there may be documents, things or information relevant to the inquiry", but only "during the place's regular business hours or, if it does not have regular business hours, during daylight hours" [Code s.31(4,5)].

In situations where resistance to entry is experienced, the Commission appointee may not use force to enter and search the subject premises [Code s.31(10)]. Practically in such situations, in order to be safe, the Commission should seek a search warrant just to be certain of their legal authority, and then to invoke 'police assist' search warrant authority [see (d) "Search Warrants: Search Warrant Terms" below, and Code s.31.1(7)].

The Commission may, when conducting entries pursuant to an inquiry, bring with them "any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry" [Code s.31(9)].

(c) Demand Powers

The Commission has the following demand-related powers when conducting an inquiry [Code s.31(7)]:
(i) Demand

to "request the production for inspection and examination of documents or things that are or may be relevant to the inquiry [such demands must be made in writing "and must include a statement of the nature of the document or thing required": Code s.31(8)];

Note that these 'requests' are really 'demands', which persons
have a positive legal duty to comply with [see (e) below, and
Code s.31(11)].

(ii) Copying and Extracting Documents

"upon giving a receipt for it, remove from a place documents
produced in response to a request (above) for the purpose of
making copies or extracts";

(iii) Questioning

to "question a person on matters that are or may be relevant to
the inquiry, subject to the person's right to have counsel or a
personal representative present during such questioning and
exclude from the questioning any person who may be adverse in
interest to the inquiry";

It is doubtful that Code s.31(11) applies here to compel a
person to answer questions, but non-compliance is arguably an
obstruction offence under s.31(14). Anyone facing such a
situation would be wise to consult experienced criminal counsel.

(iv) Use of Computers

to "use any data storage, processing or retrieval device or
system used in carrying on business in the place in order to
produce a document in readable form";

(v) Measurements

to "take measurements or record by any means the physical
dimensions of a place";

(vi) Photographs

to "take photographs, video recordings or other visual or audio
recordings of the interior or exterior of a place"; and

(vii) Temporary Control of Inquiry Site

to "require that a place or part thereof not be disturbed for a
reasonable period of time for the purposes of carrying out an
examination, inquiry or test".
Some of these demand powers parallel the 'evidence-compelling' powers discussed in s.4, above.

(d) Search Warrants

. Overview

As is noted in (b) above (and absent 'exigent circumstances') Canadian law requires prior judicial authorization (aka a 'search warrant') whenever a 'reasonable expectation of privacy' legally exists with respect to premises or materials.

. When Warrants May Be Sought

Generally, situations where a warrant should be sought include entry and search of dwellings, after hours in places of business, or where the government (normally police) is uncertain as to the privacy interest of the sought material or premises.

That said, some additional preconditions must exist before the Commission can seek a search warrant in the course of an inquiry, namely [Code s.31.1(1)]:
  • the Commission appointee must have been denied entry or have been
    "asked to leave a place before concluding a search" [see (b)
    "Entry Powers", above] ["entry or search refusal"];

  • the Commission appointee must have been refused in a demand
    request [see (c)(i), above];

    OR, (not 'and')

  • obstruction or prevention of an inquiry [see (e) below].
. Procedures

Search warrants are sought by the Commission appointee by application to a justice of the peace (JP) and may be granted "if he or she is satisfied on information under oath or affirmation that the warrant is necessary for the purposes of carrying out the inquiry" [Code s.31.1(2)]. More legal details of search warrant procedures are set out in the Provincial Offences Act, ss.158-160.

. Search Warrant Terms

The specific search and seizure authority granted by a search warrant should be spelled out in the warrant itself, but would normally (and necessarily) includes a right of entry into premises (including dwellings). These powers are granted in the warrant to a named Commission appointee, who can only exercise them upon production of proof of their Commission appointment [Code s.31.1(2-4)].

Recall that the Commission may, when conducting entries pursuant to an inquiry (which includes warrant searches), bring with them "any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry" [Code s.31(9)].

A search warrant shall also spell out the times of entry and search authorized, which shall be "reasonable" in light of the circumstances [Code s.31.1(5)].

Warrants shall also specify an expiry date, which shall be no later than 15 days after issuance, subject to extension by the JP for an additional 15 days only. Application for such extension may be made without notice to any party whose premises are to be entered and searched [Code s.31.1(6)].

. Enforcement

Where "reasonably necessary" (ie. prior resistance or good reason to expect resistance), the Commission appointee who is named in a search warrant may "call upon police officers for assistance in executing the warrant and the person may use whatever force is reasonably necessary to execute the warrant" [Code s.31.1(7)].

It is a prosecutable offence to obstruct or hinder in the execution of a search warrant [Code s.31.1(8); 46.2(1); see also Ch.17, s.9: "Remedies and Offences: Offences"].

(e) Duty to Comply with Entry and Demands

There is a positive duty to comply and assist with demands (including search warrant demands) for "documents or things" made under (c)(i) above [Code 31(11), 31.1(9)]:
s.31(11)
A person who is requested to produce a document or thing under clause (7)(a) shall produce it and shall, on request by the person conducting the inquiry, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form.
Obstruction or interference with the exercise of any of these inquiry-related powers is a prosecutable offence [Code s.31(14), 46.2, and see Ch.17, s.9: "Remedies and Offences: Offences"].

(f) Access to and Return of Seized Items

"Documents and things" taken for copying or extracting by the Commission under demand (or search warrant) authority [see (c)(i) above] must be made conveniently available to the person from which they were removed, and returned to them within a reasonable time [Code s.31(12); 31.1(9)].

(g) Evidentiary Use of Inquiry-Obtained Documents

Evidence obtained in a Commission inquiry "may be received into evidence in a proceeding before the Tribunal" [Code s.31.2].
Note:
This provision is prefaced with the phrase "despite any other Act", which is an odd and potentially unpredictable qualifier. It should certainly not be read to override any evidence protections one would normally have under the Charter of Rights and Freedoms, nor to require that such evidence be treated in any way other than in accordance with normal principles of evidence law regarding relevance, admissibility, weight, etc. At most it may allow dispensing with some evidence notice requirements under the Ontario Evidence Act (eg. for copies, medical reports, etc).
Further, certified copies of documents obtained under a Commission inquiry (including under a search warrant) are admissible as evidence as though they were originals [Code s.31(13); 31.1(9)].


6. Tribunal Evidence Inquiries

(a) Overview

Like the Commission [see s.5 above], the Human Rights Tribunal of Ontario is given similarly extensive (and administratively unusual) evidence 'inquiry' powers.

These 'Tribunal inquiries' may be directly conducted by a Tribunal appointee, who may be required by provide proof of his appointment by anyone impacted by the inquiry [Code s.44(2)] - but also, at the request of the Tribunal, by a Commission appointee who has the same powers as a Tribunal appointee [Code s.44(15)].

If the Tribunal orders that an inquiry be held, the order "will include terms of reference for the inquiry" [Rule 20.5].

(b) Criteria for Initiating Tribunal Inquiry

These inquiries are triggered by the request of a party, which the Tribunal has the discretion to grant or not, in light of the following statutory criteria [Code s.44(1)]:
  • that an inquiry is required in order to obtain evidence;

  • that the evidence obtained may assist in achieving a fair, just
    and expeditious resolution of the merits of the application; and

  • that it is appropriate to do so in the circumstances.
Whenever the law uses terms like 'just' or 'appropriate' it amounts to a delegation of discretion to the decision-maker, conditioned only by the requirement that it be exercised for the purpose it was intended and without otherwise causing unfairness (what legal decision could do otherwise?). These 'criteria' can be read as 'whenever a reasonable suspicion exists that relevant evidence may be found'.

(c) Procedure for Tribunal Inquiry Request

. Request for Inquiry

A party may request that the Tribunal conduct an evidence inquiry as discussed in this section by serving and filing a [Rule 20.1]:

Form 12: Request for Tribunal Inquiry

Such a request "must be made promptly after the party becomes aware of the need for an inquiry".

The Request (the Form should call for all this) must [Rule 20.2]:
  • describe the evidence or nature of the evidence to be obtained;

  • explain why the evidence is necessary to achieve a fair, just and
    expeditious resolution of the Application;

  • describe the efforts already made to obtain the evidence;

  • provide reasons why an inquiry is necessary to obtain the
    evidence; and

  • propose terms of reference for the inquiry.
. Response to Request for Inquiry

Responses to Requests to conduct a Tribunal inquiry must be served and filed within 14 days of service of the Request [Rule 20.3], using:

Form 13: Response to Request for Inquiry

The Response must include "complete submissions in support of the party's position" [Rule 20.4].

(d) Entry Powers

Absent emergency situations, wherever a "reasonable expectation of privacy" is held to exist legally, it is necessary for police or any government authority to obtain judicial pre-authorization (ie. a search warrant) before they can enter premises without the occupier's consent. In the Code this line is drawn at the distinction between 'dwellings' and other premises [Code s.44(5)].

When conducting an 'inquiry' the Commission has warrantless entry authority over "any lands or any building, structure or premises where the person has reason to believe there may be evidence relevant to the application", but only "during the place's regular business hours or, if it does not have regular business hours, during daylight hours" [Code s.44(3,4)].

The Commission may, when conducting entries pursuant to an inquiry, bring with them "any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry" [Code s.44(8)].

In situations where resistance to entry is experienced, the Tribunal appointee may not use force to enter and search the subject premises [Code s.44(9)]. Further, while search warrants are available to assist in a Commission Inquiry [s.5(d), above] in search of dwellings and other privacy situations, they are not available at the request of the Tribunal. This has the further implication that the Tribunal does not have the warrant-based 'police-assist' authority that the Commission does under Code s.31.1(7). Therefore, the only enforcement of these entry powers may be as described in (f) below.

(e) Demand Powers

The Tribunal has the following demand-related powers when conducting
an inquiry [Code s.44(6)]:
(i) Demand

to "request the production for inspection and examination of documents or things that are or may be relevant to the inquiry [such demands must be made in writing "and must include a statement of the nature of the document or thing required": Code s.44(7)];

Note that these 'requests' are really 'demands', which persons
have a positive legal duty to comply with: Code s.31(11).

(ii) Copying and Extracting Documents

"upon giving a receipt for it, remove from a place documents
produced in response to a request (above) for the purpose of
making copies or extracts";

(iii) Questioning

to "question a person on matters that are or may be relevant to
the inquiry, subject to the person's right to have counsel or a
personal representative present during such questioning and
exclude from the questioning any person who may be adverse in
interest to the inquiry";

It is doubtful that Code s.44(10) applies here to compel a
person to answer questions, but non-compliance is arguably an
obstruction offence under s.44(13). Anyone facing such a
situation would be wise to consult experienced criminal counsel.

(iv) Use of Computers

to "use any data storage, processing or retrieval device or
system used in carrying on business in the place in order to
produce a document in readable form";

(v) Measurements

to "take measurements or record by any means the physical
dimensions of a place";

(vi) Photographs

to "take photographs, video recordings or other visual or audio
recordings of the interior or exterior of a place"; and

(vii) Temporary Control of Inquiry Site

to "require that a place or part thereof not be disturbed for a
reasonable period of time for the purposes of carrying out an
examination, inquiry or test".
Some of these demand powers parallel the 'evidence-compelling' powers discussed in s.4, above, and they are essentially identical to Commission inquiries demand authorities discussed in s.5, above.

(f) Duty to Comply with Entry and Demands

Obstruction or interference with the exercise of any of these inquiry-related powers is a prosecutable offence [Code s.44(13), 46.2] [see Ch.17: "Remedies and Offences"].

Further, there is a positive duty to comply and assist with demands for "documents or things" made under (d)(i) above [Code 44(10)]:
s.31(11)
A person who is requested to produce a document or thing under
clause (6)(a) shall produce it and shall, on request by the person
conducting the inquiry, provide any assistance that is reasonably
necessary, including assistance in using any data storage,
processing or retrieval device or system, to produce a document in readable form.
(g) Access to and Return of Seized Items

"Documents and things" taken for copying or extracting by the Commission under demand authority [see (e)(i) above] must be made conveniently available to the person from which it was removed, and returned to them with a reasonable time [Code s.44(11)].

(h) Evidentiary Use of Inquiry-Obtained Documents

Certified copies of documents obtained under a Commission inquiry (including under a search warrant) are admissible as evidence as though they were originals [Code s.44(12)].

Note that there is no 'Tribunal inquiry' equivalent to the 'Commission inquiry' provision [Code s.31.2] that evidence obtained in an inquiry "may be received into evidence in a proceeding before the Tribunal". In its place there is a provision that requires the Tribunal inquiry appointee to "prepare a [written] report and submit it to the Tribunal and the parties to the application that gave rise to the inquiry in accordance with the Tribunal rules" (and the terms of reference established by the
Tribunal) [ Code s.44(14); Rule 20.6].

Such a report may only be used in evidence if any one of the following
applies [Rule 20.7; Code s.32(10,11)]:
  • its author (the person appointed to conduct the Tribunal inquiry)
    testifies in the proceeding and the parties are given an
    opportunity to question him or her;

  • the parties otherwise agree to the admission of the report as
    evidence in the proceeding; OR

  • the Tribunal otherwise directs.

7. Evidence re Special Programs

In Chapter 6, s.2 ["General Exceptions: Affirmative Action Programs"], I discuss 'special programs' which are designed to ameliorate the effects of historic discrimination in the prohibited ground areas (discussed in Ch.3) (and other areas as well). Such programs are excepted from the primary rights discrimination provisions of the Code.

To facilitate the operation of these programs free from doubts as to their 'Code-legality', procedures exist which allow for them to be pre-designated as approved by the Commission. While an undesignated program may still, in the course of the litigation of a Code application, be found in evidence to be (or not to be) a 'special program', a pre-designation creates what in law is called a 'rebuttable presumption' that it is a special program, and that it is Code-exempt [Code s.14(8)]. This means that, unless someone seriously undermines the legitimacy of the program with respect to rights-enhancement, that it will be held to be an exempt special program.


8. Evidence Restrictions

(a) Overview

Not all things that happen or are said may be adduced (offered) into evidence at a Code hearing. For a variety of policy reasons, some statements and documents are not 'compellable' [able to be forced into evidence] and some witnesses are not 'competent' [able to testify even if willing].

This section discusses several of these evidence 'restrictions'.

(b) Solicitor-Client Privilege

This is an obvious and well-known evidence restriction. Basically, any communications which pass between lawyer (or paralegal) and client which have as a primary purpose the seeking or obtaining of legal advice are covered by solicitor-client privilege. Without the consent of the client (it is the client's privilege), the lawyer (or paralegal) is not competent to testify as to the privileged matters.

It is important to realize that confidentiality is an integral part of solicitor-client privilege. Parties should be careful to keep such communications confidential as any leak - even if inadvertent - can give the other parties an argument that privilege has been 'waived' and thus allow them to penetrate further into the privileged communications.

Further, trying to adduce evidence as to part of privileged communications without exposing all of it to cross-examination is almost impossible to do, subject to a Tribunal order or all-party consent to that effect. Lawyers or their secretaries (who are also bound by privilege) are sometimes called to testify with respect to simple procedural matters such as service, or reasons for adjournments. Great care must be taken in this area of law.

(c) Negotiation or Settlement Privilege

In Ch.13, s.3(b): "Pre-Hearing Procedure: Mediation: Mediation Procedures", I discuss the concept of negotiation or settlement privilege.

Essentially this form of privilege provides that communications between parties which are made for the purpose of and in furtherance of settlement negotiations, are privileged. This form of privilege frees parties to engage in frank discussions about the merits of their respective cases without having such admissions used against them if the case continues to hearing. Of course, while the statements may not be used in evidence, the information contained in them may allow the facts disclosed to be collaterally verified from other sources (called 'derivative evidence').

(d) Non-Compellability of Tribunal and Commission Members and Employees

Remember that 'non-compellability' means that a person cannot be compelled to testify, while 'incompetent' means that they cannot testify even if willing.

Tribunal employees and members (ie. adjudicators) are not compellable in any legal proceedings with respect to "to information obtained in the course of a proceeding before the Tribunal", except that Tribunal employees may be compellable if Rules are made to that effect [the only Rules on this so far made are discussed in s.6(h) above] [Code s.32(10,11)].

Similarly, Commission employees and members are also not compellable in any legal proceeding with respect to "information obtained in the performance of duties under this Act", except that Commission employees are compellable in Code proceedings [Code s.27(10,11)].

(e) Confidentiality of Application Documentation

Over the last few years in civil litigation, a principle has evolved (now formalized in the Rules of Civil Procedure) that information about opposing parties and their interests, gained by parties in the necessary course of a civil proceeding, should be kept confidential by the parties [this is called an "implied undertaking (of confidentiality)]. This principle is imported into Code proceedings, at least with respect to documents obtained in the course of the case [Rule 3.3].

Further, the Tribunal may also "make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so" [Rule 3.11].
Note:
Of course given the competing principles of openness of Code proceedings [Rule 3.10] and public access to written Code decisions [Rule 3.12] (and, barring an order concealing proceedings from the public: Rule 3.11) such information may come out in the course of a trial or through a court file search in any event.

Note that, unlike civil court practice, there is no public right to
access application files (the SPPA is silent on this issue).

9. Evidence Disclosure

(a) Overview

'Disclosure' is just what it sounds like: the giving of one's evidence to the other parties in the case. Disclosure is an integral part of modern civil litigation (ie. lawsuits) and as well of many administrative tribunal regimes. The Code regime is no exception and disclosure takes two main forms, corresponding to the two main forms in which evidence is presented in a case: documentary and testimonial (witness).

(b) Document Disclosure

. Overview

Document disclosure under Code procedures falls into two stages: first (full) documentary disclosure and second (hearing) document disclosure.

. First (Full) Documentary Disclosure

The first deadline for documentary disclosure is triggered by the Tribunal's act of sending a "Confirmation of Hearing" notice (otherwise known to the rest of the civilized world as a 'hearing notice'). It is due (for both service on other parties and filing with the Tribunal: see Ch.14: "Service") 21 days after service of the hearing notice [Rule 16.1].

This document disclosure includes [Rule 16.1]:
  • a list of all arguably relevant documents in their possession.
    Where a privilege is claimed over any document the party must
    describe the nature of the document and the reason for making the
    claim; and,

  • a copy of each document contained on the list, excluding any
    documents for which privilege is claimed.
The phrase 'arguably relevant' above is important. This parallels 'affidavit of document' requirements in the civil courts where ALL relevant documents are to be listed, and (subject to claims of privilege) copies provided. Of course this places the parties in a huge conflict of interest if there are documents that hurt their case and that they want to conceal. While 'policing' of honesty in these cases can be difficult, anyone caught later concealing documents that they should have disclosed may face sanctions [see (d) below].

. Second ('Hearing') Documentary Disclosure

Barring a specific Tribunal to the contrary, a second, supplementary round of documentary disclosure comes due 45 days before the first scheduled hearing date [Rule 16.2]. This disclosure duty is slightly different from the first in that it focusses not on 'arguably relevant' documents but on "documents upon which the party intends to rely", and requires:
  • a list of documents upon which the party intends to rely; and

  • a copy of each document on the list, or confirmation that each
    document has already been provided to the other parties in
    accordance with the full documentary disclosure duty (above).
It is important to note that this second 'hearing' disclosure list should repeat documents first listed in the 'full' disclosure list (above) if the party intends to use them in evidence, as it's purpose is to confirm what documents will be adduced into evidence at the hearing. Failure to properly list documents can result in their being barred from use in evidence [see (d) below].

(c) Witness Disclosure

By the same deadline that applies to the second 'hearing' round of documentary disclosure above (45 days before the first scheduled hearing date), parties are required to serve and file their 'witness list', which consists of:
  • the name of every witness, including expert witnesses, that the
    party intends to present to the Tribunal" [Rule 17.1];

  • a brief statement summarizing each witness' expected evidence
    [Rule 17.2]; and

  • a copy of an expert witness' written report, or full summary of
    proposed evidence, and curriculum vitae must accompany the
    witness list [Rule 17.3].
(d) Consequences of Non-Disclosure

. General Consequences

There are several rules which address the consequences of non-disclosure, the most basic being that the non-disclosing party may be prevented from using the concealed evidence in the proceeding [Rule 16.4 re documentary and Rule 17.4 re witness] without express Tribunal permission.

Another general provision [Rule 5.6] (partially redundant in light of the above) adds that where "a party fails to deliver material to another party or person as required by these Rules, the Tribunal may ... take any other action it considers appropriate". What constitutes "other action" is unspecified, but it does provide an oppourtunity for imaginative Tribunal remedies and related party submissions.

. Specific Consequences Re Witness Evidence Summary

Of course being prevented from using evidence harmful to one's case is hardly a meaningful sanction, so one of these sanction provisions [Rule 5.7] provides additionally that non-disclosure regarding the Rule 18.2 witness disclosure requirement of a "brief statement summarizing each witness' expected evidence" may result in the Tribunal's refusal "to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and
no undue delay to the proceedings".

Thus is a party wishing to present only a one-sided version of things may be prevented from calling ANY evidence on the issue, with likely serious consequences to their case.

Frankly I have doubts as to the efficacy of this sanction in actual practice, as parsing out what relates to the non-disclosed material will be hard for a Tribunal member to determine and bar in the 'cut and thrust' of an active hearing. It may be that Tribunal members will have to let it in and 'disqualify' it later, a novel legal result for a novel legal remedy. Thus stuff is quite experimental.

. Criminal Code

In extreme cases of non-disclosure, and where evidence of the concealment is strong, aggrieved parties may wish to consider more substantial sanctions available to them under the Criminal Code for relating to the preparation and use of false documents in a legal proceeding.


10. Evidence on Motions

Some specific Rules apply to evidence used on Motions [see Ch.11, s.3(d) "Motions: Motion Procedures: Motions to Compel Cross-Examination on Non-Party Affidavits", and s.4 "Evidence on Motions"].
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