Information Sheet: Witnesses

(Disponible en français)

Introduction

A person who can give firsthand account of something seen, heard or experienced is called a witness. The information that a witness gives is called evidence. A witness may be called by either party to provide information related to the appeal. Parties must identify their witnesses before the hearing begins.

Questions and Answers

How do the parties determine who their witnesses should be?

Parties call witnesses who have relevant information to present. There is no need to call witnesses to confirm matters that are undisputed facts or to repeat information that has already been provided. If the student's identification as an exceptional student is in question, the parents may find it useful to have an expert witness give information about the student's assessment.

Each party should review the other party's witness list to ensure that the same witness is not being called by both parties.

Does the witness have to make a solemn promise to tell the truth before testifying?

Yes, the panel chair requires the witness to promise to tell the truth before testifying. They will also be asked whether they understand that failure to tell the truth is an offence under Ontario law.

How do the parties ensure that their witnesses attend the hearing?

Parties must ensure that each of their witnesses is prepared to attend the hearing. If the witness is willing to attend, the party calling the witness must ensure that the witness knows the time, date and location of the hearing. Under these circumstances there is no need to issue an official request to appear before the tribunal.

If the person is unwilling to attend or requires an official request to attend because of his/her employment or for some other reason, the parties can complete the tribunal's Request for Issuing a Summons.

The panel chair will review the completed form. If the panel chair approves, the party must complete the summons and serve (personally deliver it to) the witness. See: Practice Direction for Issuing a Summons to a Witness.

The summons requires a person to attend a hearing as a witness and can require the witness to bring certain documents. The witness is entitled to an attendance fee and a travel allowance. The party summoning the witness is responsible for paying these costs. For the amounts, see Tariff A of Regulation 194 of the Rules of Civil Procedure.

Should I call an expert witness?

Either party can call an expert witness to give a professional opinion on some aspect of the issues under appeal. An expert witness is someone who is trained or has technical expertise in a particular field of knowledge, and can offer an expert opinion on a subject.

When parties call expert witnesses they must:

• ensure that the witness's report, a summary of his/her evidence, and the witness's resume or summary of qualifications, are provided to the panel and the other party before the hearing
• indicate the witness' specific recognized area of expertise
• ask questions that are within the witness' area of expertise

The other party may agree or object to accepting the witness as an expert. The panel will decide whether to accept the witness as an expert.

How many witnesses can be called in a day?

The number of witnesses you may call will depend on how long each witness's testimony will last. This may be determined at the pre-hearing conference or with the direction of the panel members. In estimating the time required for each witness, remember to leave time for cross-examination and re-examination.

Make sure your witnesses are available on a given day so that there are no gaps leading to unnecessary adjournments in the proceeding.

What are the steps followed for each witness at the hearing?

The steps followed for each witness are:

• The panel chair requires the witness to promise to tell the truth.
• The witness is questioned by the party that called him/her.
• The other party cross-examines the witness.
• The witness is re-examined by the party who called him/her on any new matters that arose during cross-examination.
• The panel may question the witness.

What if I object to a question asked or statement made by the other party?

If you are concerned about the fairness, correctness or relevance of a question asked or statement made by the other party, you can raise this concern as an objection with the panel. The panel chair will rule on the objection. All rulings are final and not subject to further discussion at the hearing.

Questioning of the witnesses may be more flexible than in court. For example, a panel member may ask a question directly to one of the witnesses or a party.

What should I consider when I'm preparing to question a witness?

There are several considerations:

• Call the witnesses in an order that supports a logical presentation of the information to the panel.
• If a witness is unavailable at the time when his/her testimony fits into the logical sequence, he/she may be heard at another time. The panel tries to help both parties by allowing as much flexibility as possible.
• When questioning a witness, use open-ended questions, rather than suggesting what the answer might be (leading the witness).
• If both parents are present, one of them may act as a representative and ask questions, while the other parent is sworn in as a witness and may be cross- examined.
• When questioning a witness called to testify by the other party (cross-examination), you can ask leading questions or questions designed to elicit a “yes” or “no” answer.
• During re-direct of a witness, questions must be related to new matters that arose during cross-examination. It is not an opportunity to go back to issues covered in the initial questioning.
• At the end of the board's case, the parents can provide evidence in reply to any new matter that has been raised by the board.
• Following questions from the panel, either party may ask re-direct questions. These questions are restricted to information given in response to the panel's question.
• If you are unclear about any part of this process, don't hesitate to ask questions.