Procedures and Principles With Respect to Oral Hearings

Part 1: Background and Purpose

Background

Most dispute adjudication cases before the Agency will proceed by way of written pleadings. Where this is the case, parties do not appear in person before the Agency, but instead submit their evidence and arguments in writing.

In some cases, however, the Agency may decide to hear the whole or part of a case by way of oral hearing.

Some reasons for deciding to proceed by way of oral hearing may include the following:

• the complexity of the issues and evidence;
• the volume of materials filed;
• the need to test evidence or decide credibility issues; or
• the number of parties or interveners in the proceeding.

The Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (SOR/2014-104) (Dispute Adjudication Rules) apply to all cases, whether conducted by way of written or oral hearing. Parties are therefore subject to the Dispute Adjudication Rules by default. However, oral hearings may require that some steps be dispensed with or varied pursuant to section 6 of the Dispute Adjudication Rules, or that additional steps be ordered. These different or additional steps will vary depending on the proceeding.

Purpose

The following provisions are intended to set out, in general terms, the steps that are likely to arise when a proceeding is conducted by way of oral hearing. However, for each case, one or more procedural directions may be issued by the Agency. This means that directions will be given by the Agency in each case that will set out the specific procedures and, where appropriate, time limits that will apply to the participants.

Part 2: Decision to hold an oral hearing and pre-hearing steps

When the Agency decides that the whole or part of a case should be heard by way of oral hearing, certain steps will be required to prepare for the oral hearing. In every such case, parties will be informed of the decision to hold an oral hearing and a notice of hearing will be issued. Depending on the case, other steps may be added as well. This section outlines steps that will or may arise before an oral hearing is held.

Decision to hold an oral hearing

The Agency may decide to hear a dispute proceeding by way of oral hearing, on its own initiative or on request.

Notice of hearing

If the Agency decides to proceed by way of oral hearing, it will notify the participants of the date, time and location of the hearing at least 10 business days before the start of the hearing.

Pre-hearing conference

The Agency may, on its own initiative or at the request of a party, require the parties to attend a conference, before the panel chair or any other person designated by the Agency, by means of telecommunication or in person to determine any matter set out in section 40 of the Dispute Adjudication Rules or to determine:

•  the date, duration and location of the hearing;
•  the language(s) to be used during the hearing, including whether arrangements for simultaneous interpretation will be required by a party for the hearing;
•  whether witnesses will be called;
•  any procedures applicable to cross-examinations on affidavit to be held prior to the hearing, if applicable;
•  the scope of and time allotted for witness examinations at the hearing, if applicable;
•  whether any special arrangements will be required for the hearing; and
•  any other matters necessary for the conduct of the case, including whether the hearing will be conducted on a confidential basis.

The Agency will issue a written procedural direction containing a summary of  agreements made and, where there is no agreement, rulings on matters dealt with at the pre-hearing conference.

Issuance of terms of reference                  

The Agency may issue terms of reference for the hearing.

Issuance of procedural directions

The Agency may issue one or more procedural directions to address procedural issues applicable to any stage of the oral hearing process. Provisions of the procedural direction may be amended from time to time by order of the Agency. Procedural directions are an Agency order and are binding on the parties.

Services of an interpreter and special arrangements

A party who requires the services of an interpreter for simultaneous interpretation into English or French at an oral hearing, or who requires special arrangements for the hearing, shall advise the Secretary of their requirements as soon as possible, but not later than the date specified in the notice of oral hearing.

Special arrangements for an oral hearing may include measures to ensure that the hearing room, facilities therein or the hearing itself are made accessible for persons with disabilities, such as ensuring wheelchair accessibility or providing sign language interpretation. Special arrangements may also include such matters as scheduling witness appearances to coincide with their availability. 

Interveners and interested persons

On request filed with the Agency no later than 15 business days before the commencement of the hearing, an intervener or interested person may be authorized to be heard at the hearing, subject to the conditions imposed by the Agency. Where this is the case, the provisions of these Procedures and Principles with respect to Oral Hearings relating to evidence and witnesses will extend to those persons, as applicable.

Notice of witnesses

In order to ensure the efficiency of the oral hearing, witnesses may only be called if prior notice has been provided. The notice must include the name of the witness and a written summary of that witness's proposed testimony.

The notice and summary must be filed with the Agency and sent to the other parties not later than five business days before the commencement of an oral hearing, or such other time limit as the Agency directs.

A party who does not provide notice, including the name of a witness and a written summary of a witness's proposed testimony before the commencement of an oral hearing, will not be permitted to call the witness at the hearing.

On request and in exceptional circumstances, the Agency may permit a party to call a witness for whom no notice and summary was provided. However, in such cases, the Agency will consider the prejudice to the other party or parties, and the possibility of managing such prejudice, in making its decision.

Affidavits and cross-examinations on affidavit prior to the hearing

The Agency may, on its own initiative or at the request of a party, at any time and subject to any conditions imposed by it, order that:

(a) evidence of certain facts be given by affidavit and read at the oral hearing; and

(b) any deponent of an affidavit be cross-examined on affidavit in advance of a hearing.

Where a party objects to a question asked during a cross-examination held in advance of a hearing, the party should briefly state the grounds for the objection for the record. A person may answer a question under reserve of the objection.

Where cross-examinations on affidavit will be held prior to the hearing, the Agency will establish, through a procedural direction, the manner in which objections may be referred to it for a ruling.

Where a cross-examination is held in advance of a hearing at the request of a party, the party who intends to rely on the transcripts of a cross-examination, as well as any material produced in connection with the cross-examination, must file a notice of intent, along with the relevant excerpts of the transcripts and any other material, with the Agency within the time limit established by the Agency, or, if no date has been set, no later than two business days before the date scheduled for the oral hearing.

Where the Agency ordered a cross-examination in advance of a hearing on its own initiative, transcripts and material produced in connection with the cross-examination must be produced within the time limit established by the Agency or, if no date has been set, no later than two business days before the date scheduled for the oral hearing.

Part 3: Provisions applicable to the conduct of oral hearings

Persons attending the hearing and giving evidence

Every party will be given an opportunity to present evidence and make representations to the hearing panel, subject to any conditions imposed by the Agency. 

On request, interveners and interested persons may also be authorized by the Agency in advance to participate in the hearing, again subject to any conditions imposed by the Agency.

The Agency may also hear from outside experts or counsel retained by the Agency, and may make use of Agency experts and counsel as required. Where this is the case, the Agency will provide advance notice to the parties, and any material produced by such experts will be provided to the parties in advance in order to allow the parties to review and respond to the material.

Appearance at oral hearing

An oral hearing may proceed even though a person fails to appear before the hearing panel. In particular, the hearing may proceed where a person has not provided good reason for being absent.

The Agency may, if circumstances justify it, conduct all or part of the hearing by means of electronic communication, such as webcasting, video conferencing or teleconferencing.

Issues not raised in written pleadings

In order to ensure the efficiency of the oral hearing, a party who does not raise an issue in their written pleadings will not be permitted to raise the issue at an oral hearing.

On request and in exceptional circumstances, the Agency may permit a party to raise an issue that was not raised in their written pleadings. However, in such cases, the Agency will consider the prejudice to the other party or parties, and the possibility of managing such prejudice, in making its decision.

Order of proceeding

The order of proceeding during an oral hearing may vary from one case to the next and will be established by the panel chair at the outset of the hearing. A typical order of proceeding is as follows:

• Opening of the hearing
• Opening remarks by panel chair
• Parties’ identification for the record
• Preliminary matters: oral requests
• Parties' opening remarks
• Applicant's presentation of their case, including:
  • Examination of witness
  • Cross-examination of witness by respondent
  • Questions from panel/Agency counsel
  • Re-examination of witness by applicant
  • Presentations by interveners and interested persons in support of applicant, if applicable
  • Respondent's presentation of their case, including:
    • Examination of witness
    • Cross-examination of witness by applicant
    • Questions from panel/Agency counsel
    • Re-examination of witness by respondent
    • Presentations by interveners and interested persons in support of the respondent, if applicable
    • Reply evidence of the applicant
    • Final arguments by parties
    • Closing remarks by panel chair

Confidential proceedings

Parties are required to present their case and cross-examine witnesses in public to the fullest extent possible. Where the Agency determines that parts of the proceeding will be confidential, confidential proceedings with a witness will commence immediately following that witness’ public testimony. The hearing room will be cleared of all persons not previously authorized to have access to the confidential information.

Filing of documents and copies to parties

Any document required to be filed during the course of an oral hearing must be filed with the hearing registrar who is present at the hearing.

During the course of an oral hearing, service of any document may be made by making a copy of the document available to each party present at the hearing.

A party that wishes to refer to case law in its arguments must file a book of authorities at the hearing, when final arguments are made.

Three copies of the book of authorities must be filed with the Agency. One copy must be provided to each other party.

Oral requests

In order to ensure the efficiency of the oral hearing, parties are expected to make any preliminary procedural requests with the Agency before the commencement of the hearing, orally at the pre-hearing conference or in writing.

On request and in exceptional circumstances, the Agency may permit a party to make a procedural request that was not raised before the commencement of the hearing. However, in such cases, the Agency will consider the prejudice to the other party or parties, and the possibility of managing such prejudice, in making its decision.

The Agency may make any order it deems appropriate in respect of requests made at the hearing.

Witnesses at the hearing

Examination of witnesses

Witnesses at an oral hearing will be examined orally under oath or solemn affirmation, and the examination may consist of direct examination, cross-examination and re-examination.

Subpoenas

A subpoena requiring the attendance of a person as a witness may be obtained without charge from the Agency.

The subpoena shall be signed by the Secretary and sealed with the Agency’s seal and, if it is issued in blank, it shall be completed by the party who requested the subpoena or their representative.

A subpoena shall be served personally on the person to whom it is directed and a copy of the subpoena and the affidavit of service shall be filed with the Agency at least 48 hours before the date fixed for the attendance of the person as a witness.

A party who serves a subpoena shall, at the time of service, pay or tender to the person served an amount to which the person would have been entitled as fees and allowances as if the subpoena had been issued under the Federal Courts Rules, SOR/98-106.

Expert witnesses

Expert witnesses may be presented by any party at the oral hearing, subject to any conditions imposed by the Agency.

The filing and sending of copies to parties of expert reports and curriculum vitae should be made in accordance with the time limits for filing of documents and sending of copies to parties in the Dispute Adjudication Rules, or within the time limits established by the Agency in a procedural direction.

The original of the expert report along with copies of the other documents shall be filed with the Agency.

Witness panels

Although witnesses typically present their evidence individually, the Agency may allow witnesses to be combined into panels. Witnesses in the panel should be coordinated by the party presenting the witness panel. 

Examination of Agency's own witnesses

Agency counsel may prepare and lead evidence of the Agency’s own witnesses, where applicable.

The Agency may make use of internal experts during the course of an oral hearing. Participation by internal experts may involve reviewing expert reports filed by the parties, preparation of an expert report for pre-filing and attending at the hearing to give evidence and have that evidence tested through cross-examination.

Reply evidence

Reply evidence by a new witness may be presented by the applicant. The purpose of a reply witness is to respond to evidence presented by a person that is adverse in interest.

Reply evidence will not be appropriate or necessary in every case. Reply evidence should consist only in what is necessary to respond to the evidence presented by a person that is adverse in interest and should not repeat evidence already led. The reply evidence must not raise new issues or arguments unless a request has been made to that effect and the request has been granted by the Agency.

Interveners

An intervener may, if permitted by the Agency, give evidence after the party whom it supports has presented its case. The intervener's witnesses may be cross-examined by any party that is adverse in interest.

An intervener is not entitled to cross-examine the parties' witnesses unless the intervener has made a request and the request has been granted by the Agency.

Interested persons

Interested persons may be permitted to make oral representations before the Agency at an oral hearing where a request has been made and the request has been granted by the Agency. Interested persons are not entitled to call witnesses at the hearing or to cross-examine any witnesses called by others at the hearing.

Objections

A party wishing to raise an objection during the course of an oral hearing should briefly indicate the grounds for the objection and the order sought.

Parties adverse in interest will be given an opportunity to respond, and the objecting party will be given an opportunity to make a reply.

While the applicant, respondent and anyone named by the Agency as a party has the right to make objections, the Agency may determine that other participants may also make or respond to objections where the Agency considers it just and reasonable to do so.

The Agency will render a decision on objections as quickly as possible, after deliberation.

Adjournments

In exceptional circumstances, the Agency may order the adjournment of an oral hearing, on its own initiative or at the request of a party, at any time during the hearing, where the Agency considers it just and reasonable to do so.

If the Agency orders an adjournment, it may impose any terms and conditions that it considers just and reasonable, including the awarding of costs.

Written submissions or final oral arguments after the hearing

Exceptionally, the Agency may request further submissions after the close of the hearing or reconvene the oral hearing at a later date to hear final arguments.

Transcripts

Parties may, at their expense, order copies of transcripts of the oral hearing.

Glossary of key terms

The following is a list of general terms that are commonly used in connection with oral hearings at the Agency.

Certain terms in this document are defined in the Dispute Adjudication Rules. Where this is the case, hyperlinks have been added to refer the reader to the Dispute Adjudication Rules.

Direct examination, cross-examination and re-examination

These terms refer to asking questions of witnesses at an oral hearing. They are listed in the order in which they occur.

Direct examination involves the asking of questions to a witness by the person who called the witness. The purpose of the witness' testimony is to put before the Agency the knowledge the witness has of the facts and matters in dispute and to introduce evidence with which the witness is familiar.

Cross-examination involves the asking of questions to a witness by a person who is adverse in interest to the one who produced the witness. The aim of cross-examination is to question what the witness stated in direct examination and to test the evidence submitted.

Re-examination involves the asking of questions by the person that introduced the witness and is aimed at providing clarifications following cross-examination.

Hearing panel

Although one member of the Agency may be assigned to a dispute proceeding, in most cases where an oral hearing could be convened, a three-member panel will be assigned. The assigned member or members constitute a hearing panel.

Objection

An objection is a type of request that can be made to the Agency. Typically, it is a way of challenging questions that have been asked of a witness or of opposing the filing of certain evidence. There are many grounds on which an objection can be made: for example, a question asked of a witness may be too vague or it may be irrelevant.

Panel chair

Where the hearing panel consists of three or more members, one member will act as panel chair. The panel chair makes procedural decisions or orders before the hearing and speaks for the hearing panel at the oral hearing.

Parties

Means the applicant(s), the respondent(s) and any other person named as a party by the Agency. 

Procedural direction

A procedural direction is a binding order of the Agency concerning any procedural matter that arises in relation to the oral hearing. Procedural directions are key to any oral hearing as they will set out the time limits, procedural steps and any specific procedural decisions that will apply to the case. Any given case will include one or more procedural directions.

Terms of reference

An order made by the Agency that sets out the issues that will be considered at the oral hearing. The formulation of issues in advance is intended to assist the Agency in the conduct of the oral hearing, and to allow the parties to participate more effectively.