4.0 Preparation for and Attendance at Hearings

Preparation – Members must be fully prepared for hearings. Members must review and become familiar with the material and evidence provided in the appeal package prior to the hearing. This is an unconditional requirement. If a member is unable to properly prepare for a hearing for any reason, s/he should notify the Tribunal Chair and withdraw from the panel well in advance of the hearing.

Timeliness and attendance – Members must be present and ready to proceed prior to the scheduled time of the hearing, remain in attendance throughout the proceeding and be available during the decision-making and decision writing processes. Ideally, members will arrive 10 – 15 minutes before the scheduled hearing start time.

4.1 Conduct during the Hearing

It is essential that the work of the Tribunal and each of its appeal hearings be conducted in a manner which ensures that the appeal process is fair to the parties, and conforms with the legal requirements set out in the applicable legislation. The following matters are of general applicability and are intended to promote the reality and appearance of impartiality and fairness. This is essential to retain the trust and respect of appellants, the Ministry, and the public in the Tribunal’s work.

The right to be heard – This is the foundation right governing the work of the Tribunal. All parties must be given a full and fair opportunity to present their case, ask questions of witnesses and present relevant evidence to an impartial panel which will decide the appeal on the basis of the legislation and the evidence.

Maintain appropriate professional distance – Members must maintain an appropriate professional distance from parties, their advocates or representatives and witnesses by avoiding casual, social or private conversations or spending time with parties before, during or after the hearing or adjournments, and by avoiding any other behaviour that may give an impression that a personal or social relationship exists that could give rise to a reasonable apprehension of bias.

Communications – Members must not communicate directly or indirectly with any party, advocate or representative or witness in respect of a proceeding, except in the presence of all parties and their advocates or representatives.

Impartiality – The appeal process must be fair and reasonable and must accord with the rules of natural justice. Members must be impartial and exercise independence of thought. Members must not be influenced by improper considerations. Evidence of bias, or even a reasonable apprehension of bias, by a panel member will void the hearing and the resulting decision.

Keeping an open mind – Members must not prejudge the appeal until all the evidence has been presented and arguments by the parties have been made. Only then can members properly deliberate on the merits of the appeal.

Respect – Members demeanour, behaviour, and language should reflect respect and courtesy to all parties at hearings. Members must listen patiently and carefully to the views, evidence and submissions of the parties, witnesses and advocates. Sensitivity to the culture and heritage of the parties, witnesses, and advocates or representatives is essential, as is understanding and encouragement for appellants representing themselves.

Attentive listening – Members must carefully listen to or read the information presented and the arguments made by the parties as they explain their respective positions on the appeal. The parties should be given the opportunity to present their positions without interruption. If what the party is saying is not clear, the panel may ask questions to clarify the party’s position.

Questioning – It is important that aggressive or intimidating questioning be avoided. Members must ensure their questions are asked in a reasonable manner and are focused on understanding the position of the party. Such questioning may disclose that the party’s position is inconsistent, conflicts with other information or is not credible. After a party has finished presenting their position or asking a witness questions, the other party may ask questions directly to the party or the witness. Then, the members may ask questions of the party or witness. The panel chair must be vigilant to exert control over this questioning to prevent bullying, repetitive or non-relevant questions, intimidation or other coercive behaviour while at the same time permitting questions which are probing and challenging.

Procedures – Members are to conduct the hearing in accordance with the Employment and Assistance Act and Employment and Assistance Regulation and the policies and procedures established by the Tribunal. The panel chair must recess the hearing if a short break is required by any member or participant.

4.2 Evidence

The panel may only accept and consider information and records that were before the minister when the decision was made or oral or written evidence in support of the original records and information (Employment and Assistance Act, s. 22). Written submissions and documents tendered as evidence at the hearing are to be recorded on either the Submission at Hearing – Appellant or Submission at Hearing – Ministry form (indicating whether the evidence tendered was admitted and the reasons for that decision). The nature of the evidence tendered and whether it was admitted by the panel is also to be noted in the decision.

4.3 Deliberations

In the course of deliberating and decision-making, members must:

4.4 Decision Writing

All members of a panel must participate in the drafting of the written decision (which may include a dissenting opinion) to the extent of agreeing in point form on the findings of fact, the applicable law, and the reasoning supporting the decision. The final draft of the decision may be typed or written by the panel chair without the other members present.

4.5 Obligations of Panel Chairs

The panel chair is to ensure s/he and other members of a panel adhere to the Code and take any necessary steps to ensure compliance, including: