Exhibit's (Formal Use in Hearings)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-18
CLNP Page ID:	2023
Page Categories:	[Hearing Process (LTB)]
Citation:	Exhibit's (Formal Use in Hearings), CLNP 2023, <https://rvt.link/1q>, retrieved on 2024-05-18
Editor:	Sharvey
Last Updated:	2022/11/24

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

61.10.1 The exhibit book shall contain, in consecutively numbered pages with numbered tabs arranged in the following order,

(a) a table of contents describing each exhibit by its nature, date and exhibit number or letter;

(b) any affidavit evidence, including exhibits, that the parties have not agreed to omit;

(c) transcripts of evidence used on a motion or application that the parties have not agreed to omit; and

(d) a copy of each exhibit filed at a hearing or marked on an examination that the parties have not agreed to omit, arranged in order by date (or, if there are documents with common characteristics, grouped accordingly in order by date) and not by exhibit number. O. Reg. 19/03, s. 15.

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

15 (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

...

(4) Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.

Paramsothy & Nanthakumar v Tarion Warranty Corporation and Bradford Capital Holdings Inc., 2021 CanLII 57243 (ON LAT)

[9] The respondent in this case relies on Rules 18.2(a) and 18.2(b), namely that the Tribunal (a) acted outside of its jurisdiction or violated the rules of procedural fairness; and (b) made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The crux of both grounds is the same; the Tribunal erred in allowing in and relying on video evidence in finding for the appellants on a particular issue, when the videos had not been properly introduced as evidence. But for the videos, the respondent argues, the only evidence before the Tribunal would be the respondents, indicating that the rainfall issue had been repaired.

[10] The respondent argues that the videos were not referred to by the appellants, nor were they introduced or authenticated by any witnesses. This, in the respondent’s opinion, deprived it of the opportunity to cross-examine on the videos or to challenge the weight that should be given to them. The respondent admits, however, that the appellants did provide all parties and the Tribunal with a copy of the videos as part of the appellants’ disclosure.

[11] The irony is that in support of its request for reconsideration, the respondent submitted an affidavit from a student-at-law in its office who attended the hearing. The affidavit has not been cross-examined upon (though the appellants have had a copy for several months), is rife with argument improperly included in an affidavit, and attaches as its only exhibit a copy of the Decision. The transcript of the hearing, if any, has not been provided.

[12] The Decision makes clear that the videos formed an integral part of the adjudicator’s findings with respect to the roof rainfall handling. At paragraph 19 of the Decision:

The appellants provided video of the performance of the gutters forming the eavestrough system of the roof…the video clips taken during rainfall periods showed significant overflow at the corners of the home…

[13] And at paragraph 26 of the Decision:

…the videos provided by the appellants make clear that the two downspouts cannot handle what was intended to be dealt with by four…I find that the water drainage system for rainfall handling has not been constructed in a workmanlike manner.

[14] I agree with the respondent that the Tribunal violated the rules of procedural fairness in arriving at the Decision. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.J. No. 39, the Supreme Court of Canada outlined a process for determining what is procedurally fair in a given circumstance. The Court outlined five factors:

a. The nature of the decision being made and the process followed in making it;

b. The nature of the relevant statutory schemes;

c. The importance of the decision for the individual affected;

d. The legitimate expectations of the person challenging the relevant decision; and,

e. The choices of procedure made by the agency.

[15] As a quasi-judicial tribunal, the Tribunal owes the highest degree of procedural fairness to the parties. Parties are entitled to a decision made by an impartial adjudicator based on the evidence presented at the hearing. Further, because of the nature of the Tribunal and its process, parties have a reasonable and legitimate expectation that the Tribunal’s process will be consistent and adhered, to the degree possible, to how the Tribunal has conducted itself in the past (i.e. in a manner somewhat comparable to a court). While tribunals may not be as tightly bound by the rules of evidence as courts, decisions must still be constrained by the evidence presented at the hearing.

[16] Section 15 of the Statutory Powers Procedure Act (the “Act”) permits the Tribunal to consider as evidence at a hearing any oral testimony or any document or other thing, even where the evidence was not given under oath/affirmation or would not be admissible as evidence in court. There are some exceptions, but they do not apply here. This section is broadly understood to permit administrative decision makers more flexibility than courts in considering evidence and achieving the “just, most expeditious and cost-effective determination of every proceeding on its merits.”

[17] Despite this flexibility, section 15 of the Act does not permit the Tribunal to import information such as the videos in question into the Decision. The wording of section 15 talks about admitting documents or other things “as evidence at a hearing”, meaning that information must become evidence during the hearing, not after. Further, section 16 of the Act limits what kind of non-evidentiary information can be used during decision-making. Suffice it to say the videos would not fall under section 16 of the Act.

[18] The videos formed part of the pre-hearing disclosure exchanged by the parties. As is common in litigation, not all of the documents that a party intends to rely upon end up being put before the decision-maker during the hearing. In the Tribunal context, documents are often entered en masse as exhibits at the outset of a hearing. As exhibits, the documents, including the videos in question, would be part of the record and the respondent would – practically speaking – be ‘on notice’ that the videos might factor into the Tribunal’s decision.

[19] In this case, however, the videos do not appear to have been made an exhibit, either individually or en masse. The evidence before me is that there were four exhibits: two books of documents by the respondent (which did not contain the videos), an excerpt of Tarion’s Construction Performance Guidelines, and a review of grading on the property. Nor were the videos ever referred to by either party.

[20] In essence, section 15 of the Act gives parties broad leeway to present evidence, and Tribunals broad leeway to admit and consider it, but the evidence must still be entered. In this case, the videos were not entered in evidence. They only formed part of the Decision after the fact. As a result, the respondent was denied the ability to test the videos, call its own evidence to contradict the videos, or make submissions as to why the videos should be given less weight than the appellants would like. Considering evidence not entered at the hearing in this context was procedurally unfair to the respondent, and as a result the Decision cannot stand.

[21] Given my finding that including the videos as evidence in the Decision violated procedural fairness, I need not consider whether or not the Tribunal acted outside of its jurisdiction or made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.

[22] I find that the appropriate outcome of this reconsideration request is to order that the matter be re-heard, limited to the roof rainfall handling issue.

Municipal Property Assessment Corporation v. Prata et al., 2014 ONSC 368 (CanLII)

[31] We turn to whether the Member’s decision is invalid. It is a fundamental principle that a Tribunal Member is not to conduct his or her own investigation. In unique circumstances such as this when the Member did so, the party against whom the decision was rendered is justified in raising a concern that the Member failed to act judicially. Furthermore, even where the Member did disclose as indicated above, the failure of the Member to record the fact and the result of his investigation in his decision reinforces that concern.

[32] On the basis of our findings in paragraph 29 above, we are satisfied that the parties were aware of the investigation, had the opportunity to object, did not object, and in fact, proceeded with the hearing. On that basis, the parties waived the fact that the Member had conducted his own investigation. While we agree with counsel for the Appellant that the independent investigation was improper, we are satisfied that the Appellant waived the possible apprehension of bias. [5] The decision is not invalid. The Court would not grant the appeal on that ground.