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Preparing for your Hearing

Latest Revision: September 14, 2018

Preparing for your Hearing

Table of Contents

  1. Introduction
  2. Role of Tribunal Staff
  3. Open Communication
  4. Rules of Procedure
  5. Hearing Procedures
  6. How the Tribunal makes its Decision
  7. Preparing your Case
  8. Documents you plan to use at your Hearing
  9. Organizing your Materials
  10. Expert Evidence
  11. Delivering your Documents to the Tribunal
  12. Summons to Witness 
  13. Rule 18 of the Tribunal’s Rules of Procedure deals with summonses:
  14. By Summons to witness
  15. Summons Request
  16. Service and attendance money
  17. Lack of seal 
  18. Steps for obtaining a summons are as follows:
  19. Representatives 
  20. Open Hearings 
  21. Hearings not transcribed
  22. Language and Hearing Site
  23. Costs of the Proceeding
  24. Orders for Costs 
  25. Costs under the Drainage Act 
  26. After the Hearing

Introduction

These guidelines are designed to assist individuals or groups who are preparing to present a case before the Agriculture, Food, and Rural Affairs Appeal Tribunal (“Tribunal”). They aim to provide answers to common questions received by Tribunal staff.

These are guidelines only and are not a substitute for legal advice.

Role of Tribunal Staff

The Tribunal is supported by three staff members: Two Tribunal Coordinators and one Administrative Assistant.

Each appeal, application or complaint to the Tribunal is assigned to one Tribunal Coordinator, who is responsible for ensuring that parties are aware of the Tribunal’s procedure and expectations so that proceedings before the Tribunal can proceed in a fair and timely manner. The Tribunal coordinator communicates with all parties to an appeal from the time that an appeal is accepted by the Tribunal. The Tribunal Coordinator is not a representative for either party before the Tribunal; rather, the Tribunal Coordinator is the “face of the Tribunal” and is responsible for responding to parties’ questions and concerns regarding their appeal.

The Tribunal Coordinator cannot provide legal advice or advise any party how to present his or her case. If you need help preparing your case, you should seek legal advice from a qualified legal professional.

The Administrative Assistant is responsible for sending out correspondence on behalf of the Tribunal, scheduling hearing locations, and other administrative duties.

Open Communication

The Tribunal strives to be fair and transparent in its dealings with all parties. We therefore expect that questions or comments from a party (or representative) to the Tribunal will be copied to all other parties. This serves to ensure that all parties are aware of all communications taking place between parties and the Tribunal and is meant to maintain confidence in the fairness of the Tribunal’s proceedings.

Any questions or comments to the Tribunal received by telephone will be shared with all other parties by email or regular post.

Rules of Procedure

The Tribunal’s complete Rules of Procedure can be accessed on the Tribunal’s website at www.omafra.gov.on.ca/english/tribunal/about/rules-of-procedure.htm, or from Tribunal staff.

The Tribunal’s complete Rules of Procedure can be accessed on the Tribunal’s website or from Tribunal staff.

Hearing Procedures

Although hearings before the Tribunal are similar to court hearings, they are less formal. Parties appearing before the Tribunal are not required to be represented by legal counsel, but are free to have legal representation, if they so wish. Certain procedural rules apply to hearings before the Tribunal, and it is useful for parties intending to appear before the Tribunal to be familiar with these procedures. The Tribunal’s statutory procedural rules are required by the Statutory Powers Procedure Act, which can be accessed here.

When a person files an appeal, application, or complaint with the Tribunal, the matter is assigned to a Tribunal Coordinator. The Tribunal Coordinator responsible for the matter will send out an acknowledgement letter to the parties canvassing the parties’ availability for potential hearing dates.

Depending on the scope and complexity of the matter before the Tribunal, the next step may be a Pre-Hearing Conference and Settlement Conference (discussed below), a motion made by either party (discussed below), or the hearing itself. The next appearance date will be set, as will dates for the exchange of materials, motions, etc.

Appeals are normally heard by a panel of three or more Tribunal members, and presided over by a Vice-Chair assigned by the Tribunal Chair. The panel hearing an appeal has members with background and expertise in the subject matter of the appeal. The main parties to appeals are the person or group appealing, known as the appellant, and the person who made the decision that is under appeal (the municipality, program administrator, marketing board, the Farm Products Marketing Commission, or the Director), known as the respondent.

The order of presentation at most hearings is as follows:

  • The panel Chair outlines the procedures to be followed for the hearing.
  • In assessment appeals under the Drainage Act, the engineer who prepared the report under appeal will be asked at the start of the hearing to provide an overview of the project. This introduces the Tribunal to the project and the issues. Questions of clarification are allowed when the engineer has finished this brief presentation. The engineer will then be asked to provide the details of how the assessments were calculated. Appellants then present their case.
  • The appellant presents his or her case to the Tribunal panel first. The appellant chooses the manner of presentation of his or her case. This could involve reading a written presentation, presenting verbal evidence, calling witnesses, and/or presenting documents to the Tribunal. The appellant may wish to outline briefly the matters to be considered by the Tribunal at the beginning of the presentation. The appellant’s objective is to present to the Tribunal all of the facts that are relevant to his or her case and to persuade the Tribunal that the appellant's request should be granted.
  • The respondent has the opportunity to question the appellant and any witnesses who testify on behalf of the appellant. The Tribunal panel will also have a chance to question the appellant and the appellant's witnesses.
  • Following the completion of the appellant's case, the respondent will make present its evidence. The appellant will then be given an opportunity to question the respondent and its witnesses. The Tribunal panel will also have the opportunity to question the respondent.
  • The appellant will have the opportunity to provide evidence in reply to any new matter that is raised during the respondent’s presentation of his or her case.
  • Following the presentation of evidence, the parties will be given an opportunity to make a closing statement, in which they summarize their case or present their argument before the conclusion of the hearing.
  • When the hearing is complete, the parties leave and the Tribunal deliberates the evidence and makes its decision. A written decision with reasons is sent to the parties once the Tribunal has made its decision.
  • In appeals under the Farm Registration and Farm Organizations Funding Act normally the appellant presents their case to the panel, the panel asks questions and compares the evidence provided to the criteria specified in the legislation and makes a decision. A respondent is not normally present.
  • If at any point in the hearing, a party is unsure of the procedure to be followed, he or she can ask the Chair for direction.

How the Tribunal makes its Decision

The Tribunal makes its decision based only on the evidence and submissions that are placed before it during a hearing and in accordance with relevant laws. The material you submit to the Tribunal prior to the hearing is not considered evidence until it is tendered as evidence during the hearing, when it is introduced via a witness. More information on what constitutes evidence is provided later on, under the heading “Preparing Your Case”.

You are responsible for presenting the evidence that supports your case to the Tribunal. If you have appealed to the Tribunal under the Drainage Act because you think your land has been assessed at an amount that is too high, for example, then you must show evidence that your land should be assessed at a lower amount. You may choose to present this evidence through an engineer who disagrees with the engineer who prepared the report for the drain, or any other way you see fit. The important part to remember is that your claims must be supported by evidence.

The hearing time and date specified on your Notice of Hearing have been set aside specifically for the Tribunal to hear your case, so you should take the time to prepare and present your case fully and completely.

Preparing your Case

Most people who appear before the Tribunal find that they are more comfortable and make a better presentation if they take the time to organize their information, documents and witnesses beforehand. It may be useful to write down the points that you wish to cover, or draft a brief summary of what your case is about, to refer to or read to the Tribunal panel at the hearing.

When you first speak to the Tribunal in your opening arguments, you should tell the Tribunal what you want it to do, i.e. what decision you would like it to make and the evidence you will show to support that decision.

You should start thinking about how you are going to present your case as soon as possible, as the Tribunal can make orders regarding witnesses and disclosure at a Pre-Hearing Conference and at motions, which are generally held well before the case is heard.

Do not assume that the Tribunal panel has any prior knowledge about your case, your operation or the way your industry operates. Remember also that any material you filed with the Tribunal prior to your hearing does not become evidence in your case until it is submitted as evidence during the hearing. It is best to provide a full picture of your situation to the Tribunal panel so that it has a full understanding of your circumstances and what it is that you are requesting.

To prepare for your hearing you first you should be aware of what the Tribunal does and its processes. It is important to check the appropriate provincial legislation which relate to your appeal. You may also want to read related regulations, the Tribunal’s Rules of Practice and Procedure and review the Tribunal’s website to help you prepare.

You will need to present evidence to support your case at the hearing. Evidence can be anything you think will help support your claims. Some examples of evidence include:

  • your testimony
  • photos
  • documents
  • witness testimony

You should make every effort to substantiate any facts or statements that you present to the Tribunal. It is best to present the Tribunal with first-hand knowledge or evidence whenever possible. If you are relying on information that someone else has told you, bring the person who has direct knowledge of that information to testify. The next best option would be to bring that information to the hearing in a written document signed by that person.

Make sure that you provide copies of your documents that you are going to use as evidence to all parties and to the Tribunal before the hearing.

At the end of the hearing, you will make a closing argument that reminds the Tribunal what decision you would like it to make and summarize why the Tribunal should agree with your position. It is a good idea to summarize your evidence and that of the other parties and state why your evidence should be accepted by the Tribunal.

It is helpful for the respondent and appellant to discuss the case before coming to the Tribunal to determine which issues they agree can be resolved and which issues the Tribunal must rule on.

Documents you plan to use at your Hearing

If you have documents that support the case that you are making to the Tribunal, including copies of correspondence, business records, photographs and the like, the Notice of Hearing directs that the parties deliver to each other one copy of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing. The Notice of Hearing also directs that a specified number of copies be delivered to the Tribunal by a certain date.

These documents are normally entered as exhibits in the hearing and are kept by the Tribunal, so make sure you have a copy for yourself that you can take away with you after the hearing. If you bring additional documents to the hearing, be sure you have enough copies for the Tribunal and the other parties to the hearing. Note that any documents not disclosed prior to the Hearing may not be accepted by the Tribunal.

Organizing your Materials

Any documents or other materials you submit to the Tribunal must be organized and labeled in such a way that they can be easily distributed to the panel and identified during the Hearing. Follow these tips to organize your materials:

  • Number each page of a multi-paged document for ease of reference.
  • Ensure photographs are date-stamped, time-stamped, indicate location, orientation and any other relevant factors (i.e., after a heavy rainfall, during drought, etc.).
  • Collate your documents so that each package to be distributed to the Tribunal contains your documents in the order you intend to reference them during the hearing.
  • If you plan to present video or sound evidence, make sure you advise the Tribunal of the equipment you will require to present your evidence to the panel.

Expert Evidence

If you are submitting expert evidence to the Tribunal, either in person or by expert report, tell the other parties before the hearing date and provide them with the expert opinion so they can adequately respond at the hearing without the need to ask for an adjournment.

You will also need to provide a copy of your expert’s resume to the Tribunal and to the other parties.

Delivering your Documents to the Tribunal

Unless you are appealing to the Tribunal in a matter under the Drainage Act, you will need to give several copies of your documents directly to the Tribunal in addition to serving copies to the other parties in your matter. Parties must deliver a specified number of hard copies of their materials to the Tribunal; therefore, documents and other materials cannot be sent to the Tribunal via fax or email.

Parties may send their materials to the Tribunal via post or courier to the following address:

Agriculture, Food and Rural Affairs Appeal Tribunal
1 Stone Road West, 2nd Floor NW
Guelph, Ontario N1G 4Y2

Materials can also be hand-delivered to the above-noted address between the hours of 8:00 a.m. and 5:00 p.m. Monday to Friday or to the Shipping and Receiving department located on the first floor, NE between the hours of 8:00 a.m. and 4:15 p.m. Monday to Friday. Anyone attending to drop off materials in-person is encouraged to call the Tribunal ahead of time to ensure that a staff member will be present to accept the package.

Please note that the building located at 1 Stone Road is a secure building and members of the public do not have access to the Tribunal offices, nor will materials be accepted by personnel at the Security and Information desk if Tribunal staff are unavailable and the Shipping and Receiving department is closed.

Also note that the “due date” indicated in the Notice of Hearing or order, as the case may be, is the date by which materials must be received by the Tribunal, not the date by which they must be placed in the mail.   Parties who are sending materials by mail must ensure that they allow adequate time for the materials to be delivered to the Tribunal before the due date. Late materials may not be accepted during the hearing.

Summons to Witness

There are times when a person who has evidence that will benefit your case is unwilling to testify, or is unable to provide evidence to the Tribunal without having been “summoned”. If one of your witnesses must be summoned, or if you have to compel an unwilling witness to testify, you can ask the Tribunal to issue a document known as a “summons”.

Rule 18 of the Tribunal’s Rules of Procedure deals with summonses:

Rule 18 - Compelling Attendance of Witnesses

By Summons to witness

  1. 18.01 A party who requires the attendance of a person as a witness at a hearing may serve the person with a summons to witness which shall be in Form 1 requiring him or her to attend the hearing at the time and place stated in the summons, and the summons may also require the person to produce at the hearing the documents or other things in his or her possession, control or power relating to the matters in question in the appeal that are specified in the summons. Form 1 is appended to these rules of procedure.

Summons Request

  1. 18.02 On the request of a party or a solicitor or agent representing a party, the chair or a vice-chair of the Tribunal may sign and issue, or in the case of urgency, the secretary to the Tribunal may sign and issue a summons to witness. Before the summons is signed, the party or solicitor or agent shall complete the summons and include the name of the witness.

Service and attendance money

  1. 18.03 A summons to witness shall be served on the witness by the party requesting the summons, personally and, at the time of service, attendance money in the amount provided under the Rules of Civil Procedure shall be paid or tendered to the witness.

Lack of seal

  1. 18.04 The lack of a seal does not render a summons to witness invalid.

Steps for obtaining a summons are as follows:

  1. If you require a witness to be summoned to testify on your behalf, you must notify the Agriculture Food and Rural Affairs Appeal Tribunal of the witness' name, full address, and reason you require the person to testify on your behalf.
  2. The Tribunal will issue the summons as appropriate and will send the issued summons to the party who has requested the summons.
  3. The party who has requested the summons is responsible for personally serving the summons on the person summoned. The person who serves the summons should note the time, date, and location where the witness was served with the summons.
  4. The party who has requested the summons is responsible for paying the required fees and allowances. Note that Rule 34.04(5) of the Rules of Civil Procedure made under the Courts of Justice Act state that fees are to be paid according to Tariff A of the Rules of Civil Procedure. Tariff A sets out the fees to be paid to a summoned witness as follows:
  5. Attendance allowance for each day of necessary attendance: $50.
  6. Travel allowance, where the hearing or examination is held,
  7. in a city or town in which the witness resides, $3.00 for each day of necessary attendance;
  8. within 300 kilometres of where the witness resides, 24¢ a kilometre each way between his or her residence and the place of hearing or examination;
  9. more than 300 kilometres from where the witness resides, the minimum return air fare plus 24¢ a kilometre each way from his or her residence to the airport and from the airport to the place of hearing or examination.
  10. Overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay: $75.

The Rules of Civil Procedure can be accessed via the following link.

Representatives

A party to a proceeding before the Tribunal is entitled to be represented by a representative and/or a spokesperson. A person is a spokesperson when he or she is one of a group of applicants, respondents, or other party and is speaking on behalf of the group party. A person is a representative when he or she is presenting the case of a party or group party without being a party themselves. A lawyer who presents the case of a party, for example, is a representative.

A representative need not be a licensed legal professional in order to represent a party before the Tribunal; however, under the Law Society Act, a representative who is not licensed must qualify for an exemption as stated under s. 30(4) of By-law 4 of the Law Society of Ontario (formerly the Law Society of Upper Canada), which exempts a representative from being a licensed legal professional if he or she meets the following requirements:

30(4) An individual,

  1. whose profession or occupation is not and does not include the provision of legal services or the practice of law,
  2. who provides the legal services only for and on behalf of a friend or a neighbour,
  3. who provides the legal services in respect of not more than three matters per year, and
  4. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

A party may change his or her representative during the proceedings; however, a change in representation should not unduly delay the proceedings. Furthermore, parties are expected to inform each other any time they obtain representation or change representatives. Parties are also expected to share their representative's contact information with each other so that each party knows where to send disclosure, who to contact for settlement discussions or offers, etc.

A party who wishes to have a representative must also give express written authorization to the Tribunal to communicate with the named representative. The specific wording of the authorization is in the discretion of the parties, but could read as follows: "I, (name of party) hereby authorize the Agriculture, Food and Rural Affairs Appeal Tribunal to communicate with and discuss my case with (name of representative)." The authorization must be signed and dated and contain the representative's contact information, including address, email address, and telephone number. An authorization to the Tribunal can be revoked in writing. The authorization and revocation can be scanned and sent to the Tribunal by email, faxed, or mailed by post.

Open Hearings

Hearings before the Tribunal are public and the exhibits submitted at a hearing are available to the public. You should consider the need for confidentiality of the documents you provide. If you have confidential information that is vital to your case, you can ask that the confidential information be provided at the hearing "in camera" (everyone but the parties, Tribunal and staff have to leave the hearing room) and that any written confidential information be sealed in the file. You will have to persuade the panel that the information is in fact confidential before this privilege is allowed.

Hearings not transcribed

The Tribunal does not have a court reporter record its proceedings and therefore no transcript of the proceedings will be produced. Parties may arrange for a court reporter to record the proceedings, at their own expense, but must give the Tribunal five days’ notice of their intention to do so. See Rule 16 of the Tribunal’s Rules of Procedure.

Language and Hearing Site

Hearings are normally conducted in English in a room provided by the Tribunal or the municipality where the parties reside. If you require French language services or physical accommodation, you must inform the Tribunal staff as soon as possible so that your needs can be provided for at the hearing.

Costs of the Proceeding

Parties before the Tribunal often wonder how much the proceedings will cost them. Although there is no fee to file an appeal, application, or complaint, parties still incur costs when they participate in proceedings before the Tribunal. These costs can range anywhere from one day’s missed work to attend the hearing, to tens of thousands of dollars for legal fees, expert witness’ fees, etc. Where your expenses fall on this spectrum will depend on the complexity of your case, the length of the proceedings, the number of parties, how organized you are, whether you have to summon any witnesses, etc.

Keep in mind that you may also have collateral expenses, such as transportation to and from the hearing.

In addition to monetary expenses, proceedings before the Tribunal will take time and energy. If you represent yourself, you will need to take the time to research the law, gather and organize your evidence, and prepare your case to present it to the Tribunal. You will also need to think about what kind of evidence the other party will present and prepare questions for cross-examination.

Orders for Costs

The Tribunal may make an order for “costs” in any proceedings before it. Costs are a sum of money ordered to be paid from one party to another for expenses incurred for preparing for and attending at the proceeding. The sum of costs may include such things as preparation and hearing time for counsel, consultant and witness fees, and travel expenses. It does not include business or personal financial losses. If a party's conduct caused such losses, however, this conduct may be considered in making a cost order.

A cost order may be made if a party requests it or if the Tribunal is of the opinion that a party has acted inappropriately, as outlined in Rule 28.04. Cost orders and the amount awarded are to discourage conduct that wastes a great deal of the Tribunal's and parties' time and resources. Note that further cost stipulations apply to proceedings under the Drainage Act. (Discussed below)

For the most part, each party pays their own costs incurred for the hearing. However, the Tribunal has adopted a Rule of Procedure which allows it to award costs in proceedings initiated under any of the statutes it deals with. Costs will only be awarded in situations where a party has acted clearly unreasonably, acted in bad faith or acted in a frivolous or vexatious manner.

An order for costs is very rare. Recovery of costs is not standard before the Tribunal. It is only where the Tribunal finds that a party wrongly brought the appeal or participated unacceptably in preparation or hearing events, that an award of costs will be made. Only a party may make a request for costs. Participants, witnesses or others without official party standing can request or receive costs only in the most unusual circumstances.

There must be no threats to potential appellants that costs will be requested.  This could prevent opponents who have different but sincerely held opinions from exercising their right to appeal. The governing legislation provides this appeal right. If this is abused there are other remedies available, such as dismissal without a hearing.

Costs under the Drainage Act

Sub-section 98(10) of the Drainage Act states that “the costs of any proceedings before the Tribunal shall be paid by or apportioned between the parties in such a manner as the Tribunal considers proper, and where costs are ordered to be paid, the order for payment thereof may be filed in the Small Claims Court and is enforceable as a judgment or order of that court”.

Sub-section 98(11) of the Drainage Act states that “the costs chargeable or to be awarded in any proceedings may include the costs of witnesses and of procuring their attendance, the costs of secretarial staff and such other costs as the Tribunal may direct”.

These sections of the Drainage Act pertaining to costs have been integrated into the Tribunal’s Rules of Procedure under Rule 31.

It is important that you be aware that the Tribunal must apportion costs of proceedings that come before it under the Drainage Act because it means that an appeal to the Tribunal is likely to increase the overall cost of the drain under appeal.

After the Hearing

For the most part, decisions of the Tribunal are final.

The Tribunal will review its own decisions in some circumstances. Parties are referred to Rule 29 of the Tribunal’s Rules of Procedure. As well, decisions made pursuant to the Farm Products Marketing Act or the Milk Act may be reviewed by the Minister of Agriculture, Food and Rural Affairs. Certain decisions made under the Drainage Act may be appealed to the Drainage Referee. Parties are referred to Sections 101 and 106 of the Drainage Act.

All decisions by the Tribunal are subject to Judicial Review by the Divisional Court of Ontario.