Updated Practice Direction on Hearing Formats

(Disponible en français)

Background

This Practice Direction outlines Tribunals Ontario's approach to determining the format of the hearing that will be held, and how a party can request a different hearing format.

Definitions

For the purpose of this Practice Direction:

Tribunal means any board, commission or tribunal that falls under Tribunals Ontario.

A written hearing is a hearing in which the tribunal makes a decision based upon the written materials filed by the parties.

An electronic hearing means a hearing held by telephone or videoconference technology that allows the parties to hear and/or see each other.

An in-person hearing is a hearing where the parties attend before the tribunal in person.

Accommodation is a process meant to ensure that a person with Ontario Human Rights Code-related needs can fully participate in a tribunal matter.

A request to change the hearing format is a request made by a party to a tribunal to have their hearing format changed from one hearing format to another, or to a combination of hearing formats.

Tribunals Ontario's Approach to Hearing Formats

Tribunals Ontario remains committed to providing fair, effective, accessible and timely access to its hearings. Tribunals Ontario recognizes that electronic and written hearings are necessary for providing fair and efficient access to justice and will continue to shift its focus from in-person hearings to electronic hearings.

Moving forward, all matters will proceed as written or electronic hearings with two exceptions:

1. The first exception is that an in-person hearing may be provided if a party can establish that an in-person hearing is required as an accommodation for an Ontario Human Rights Code-related need.
2. The second exception is where a party can establish that the hearing format will result in an unfair hearing.

Accessibility and Accommodations

Tribunals Ontario is committed to meeting its obligations under the Accessibility for Ontarians with Disabilities Act, 2005 and Ontario's Human Rights Code. Parties, representatives, witnesses and other tribunal participants are entitled to accommodation of Human Rights Code-related needs. Any person requiring an accommodation should contact the specific tribunal from which the accommodation is required.

Requests to Change Hearing Format

Parties may request that their hearing format be changed on the basis that the hearing format or combination of hearing formats specified by the tribunal will result in an unfair hearing. A request to change the hearing format must be made by following each tribunal's rules and/or procedures. To make a request, contact the specific tribunal whose hearing format you wish to have changed.

Statutory Authority

In March 2020, the provincial government passed the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the "HTPA"). The HTPA gives tribunals broad authority to conduct electronic and written hearings as they consider appropriate. Tribunals may make orders necessary to facilitate the hearing format, and those orders prevail in the event that they conflict with legislation (including the Statutory Powers Procedure Act) and even the tribunal's own rules.

Process for Requesting a Different Hearing Format

A Party May request a Different Hearing Format as an Accommodation

Parties, representatives, witnesses and other tribunal participants are entitled to accommodation of Human Rights Code-related needs and may request a different hearing format as an accommodation by contacting the respective tribunal.

A Party May Request a Change to their Hearing Format on the Basis of Fairness

A party may request a different hearing format for non-accommodation reasons by contacting the respective tribunal. Parties are expected to make the request as soon as possible after being notified of the hearing format and must do so in accordance with the particular tribunal's procedures and/or rules.

The party requesting the hearing format change is responsible for establishing that the specified hearing format ought to be changed. For example, to change a written hearing, the party requesting a format change will need to establish, at a minimum, that there is a good reason not to hold a written hearing. To change an electronic hearing, the party requesting the format change will need to establish, at a minimum, that the hearing format will likely cause them significant prejudice.

The tribunal may reach out to any other party in the matter to determine their views on the request to change the hearing format. A tribunal adjudicator will consider the parties' arguments and make a decision as to whether the hearing format specified by the tribunal ought to be changed. This will involve balancing various interests and rights, including the parties' right to a fair hearing as well as the public interest in having matters heard efficiently and expeditiously.

The tribunal may also decide that the hearing will proceed as a combination of different hearing formats. For example, the tribunal may decide that one party will attend the tribunal's hearing room in person with the other party attending the hearing electronically.

Every request to change the hearing format will be decided based upon the specific circumstances of the matter.

Factors Relevant to the Appropriate Hearing Format

When deciding a request to change the hearing format, the tribunal will balance various rights and interests to arrive at a fair decision. Some of the factors that the tribunal may consider when making a decision on a party's request to change the hearing format include, but are not limited to:

1. Whether fairness requires the hearing format to be changed:
   • Tribunals have an obligation to ensure fair hearings. What constitutes a fair hearing is a flexible and variable concept that depends on the particular circumstances of the case;
   • There is a growing acceptance in Ontario that electronic and written hearings are necessary for fairly facilitating access to justice;
   • There is no inherent unfairness to the videoconference process;
   • A video, telephone or written hearing may be appropriate depending on the circumstances of the proceeding;
   • In-person or video hearings are not required to ensure fairness simply because a matter involves witnesses and their credibility; and
   • While a party may prefer an in-person hearing, it is not necessarily in the interests of justice to have one. It is not in the interests of justice to adjourn matters indefinitely if they can be dealt with fairly via written or electronic hearings. Other matters that require an in-person hearing may be adversely impacted by matters that are unnecessarily adjourned.
2. Whether a party will be prejudiced by the current hearing format, or would be prejudiced if the hearing format were to change:
   • The tribunal will not only consider whether the specified hearing format causes prejudice to the parties, but will also consider whether changing the format would cause prejudice to the parties; and
   • A party's unfamiliarity with a new technology (for example, videoconferencing technology such as Microsoft Teams) is not sufficient, in and of itself, to necessitate an in-person hearing.
3. The complexity of the matter
   • The tribunal may consider the following factors when deciding the appropriate hearing format:
     • The number of parties; and
     • The nature and volume of the proposed evidence.
4. The length of delay that will result if the matter waits for an in-person hearing:
   • It is important for tribunals to continue providing access to adjudication during the COVID-19 pandemic; and
   • It may be in the interests of justice to have a matter heard through a written or electronic hearing if it has already been significantly delayed.
5. Any factor that may be relevant to the legislation under which the matter arose; and
6. Any other factor that is relevant to the appropriate hearing format.

Public Access to Electronic Hearings

Tribunals Ontario remains committed to providing public access to its hearings where appropriate. The public can contact the respective tribunals to inquire about access to hearings.

Other Resources

For more information, please see the following resources:

• Guide to Videoconferencing Proceedings and Microsoft Teams
• Tribunals Ontario's Accessibility and Accommodation Policy