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HEALTH SERVICES APPEAL AND REVIEW BOARD
RULES OF PRACTICE AND PROCEDURE
I N D E X
RULES OF PRACTICE AND PROCEDURE
INTRODUCTION
The Health Services Appeal and Review Board is established and conducts hearings pursuant to the Health Insurance Act, Fixing Long-Term Care Act, the Connecting Care Act, the Commitment to the Future of Medicare Act, the Ambulance Act, the Healing Arts Radiation Protection Act, the Health Facilities Special Orders Act, the Health Protection and Promotion Act, the Immunization of School Pupils Act, the Integrated Community Health Services Centres Act, the Laboratory and Specimen Collection Centre Licensing Act, the Private Hospitals Act, and the Statutory Powers and Procedures Act.
Administrative services are provided to the Health Services Appeal and Review Board by the Health Boards Secretariat. Enquiries concerning the Board's practices, requests for copies of Rules, Forms or Decisions may be made to the Registrar at the address and telephone number below.
Correspondence to the Board should be addressed to:
The Registrar
Health Boards Secretariat
| 9th Floor - 151 Bloor St. W. | Phone number (416) 327-8512 |
| Toronto ON M5S 1S4 | Fax number (416) 327-8524 |
The HEALTH SERVICES APPEAL and REVIEW BOARD (HSARB) is an independent quasi-judicial tribunal. The Board's
proceedings are public unless the Board orders otherwise.
The Board:
- is not an investigative body;
- does not administer the OHIP benefit programme; and,
- does not have access to any files or records of OHIP or Ministry of Health, or other agencies.
Parties to the Board's proceedings should forward to the Board, all information, documents and things which
the party wishes the Board to consider in deciding the appeal.
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RULE 1 : APPLICATION AND DEFINITIONS
Definitions
| 1.01 | In these Rules, unless the context requires otherwise, |
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- "Board" means the Health Services Appeal and Review Board.
- "appeal" means an appeal to the Board.
- "applicant" means anyone who has sent notice requesting a hearing before the Board and includes a parent or guardian of a minor.
- "Chair" means the Chair of the Board.
- "electronic hearing" means a hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another.
- "hearing" means a hearing in any proceeding before the Board, including oral hearings, written hearings and electronic hearings.
- "Minister" means the Minister of Health.
- "oral hearing" means a hearing at which the parties or their counsel or agents attend before the Board in person.
- "physician" means a legally qualified medical practitioner lawfully entitled to practise medicine in the place where medical services are rendered by the physician.
- "Plan" means the Ontario Health Insurance Plan.
- "practitioner" means a person other than a physician who is lawfully entitled to render insured services in the place where they are rendered.
- "proceeding" means any proceeding before the Board to which these Rules apply.
- "Registrar" means the Registrar of the Board.
- "respondent" means the party or parties responding to the applicant.
- "written hearing" means a hearing held by means of the exchange of documents, whether in written form or by electronic means.
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| General |
| 1.02(1) | These Rules apply to all proceedings before the Health Services Appeal and Review Board. |
| (2) | These Rules apply subject to the Statutory Powers Procedure Act and any other legislation governing the Board. |
| (3) | The Board may, at any time, as it deems necessary, dispense with compliance with any Rule, save and except those prescribed as mandatory by the Statutory Powers Procedure Act and any other legislation governing the Board, and may make a procedural ruling to govern the conduct of the proceeding which shall prevail over any provision of these Rules that is inconsistent with the procedural ruling. |
| (4) | These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. |
| (5) | Substantial compliance with requirements respecting the contents of forms, notices or documents under these Rules is sufficient. |
| (6) | The Board may issue practice directions as necessary to explain, amplify or clarify these Rules. |
| (7) | The Board may exercise any of its powers under these Rules on its own initiative or at the request of a party. |
| (8) | If a party seeks a remedy or order that the Board cannot grant without submissions from other parties, the party seeking the remedy or order should first seek the consent of the other parties and advise the Board whether consent was obtained. |
| (9) | These Rules may be cited as the Health Services Appeal and Review Board Rules. |
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RULE 2: NOTICE REQUESTING A HEARING
Content of Notice Requesting a Hearing
| 2.01(1) | The notice requesting a hearing shall include: |
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| (a) | sufficient detail to identify the decision being appealed from, including the substance of the decision being appealed from, the date of decision and the name of the individual or entity that made the decision; |
| (b) | the name, telephone number, and address for service of the applicant and counsel or agent, if represented by counsel or agent. |
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| (2) | The Registrar may request additional materials to be filed in order to complete a request for hearing in accordance with Rule 5.01. |
| (3) | A notice requesting a hearing is completed once it meets the requirements set out in Rule 2.01(1) and any additional requirements specified under Rule 5.01(2). |
| (4) | Where required by statute, the notice requesting the hearing must be served on the Respondent and proof of service must be forwarded to the Board together with the notice requesting the hearing. |
Decision not to process a Notice Requesting Hearing
| 2.02 (1) | Upon receipt of a notice requesting a hearing, the Board or the Registrar, may decide not to process the notice requesting a hearing if, |
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| (a) | the notice requesting a hearing is incomplete; |
| (b) | the notice requesting a hearing is received after the time for commencing the proceeding, as determined by statute, has elapsed; or |
| (c) | there is some technical defect in the notice requesting a hearing; or |
| (d) | any combination of the reasons outlined in (a) to (c) above. |
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Notice
| (2) | The Board or the Registrar shall give the party requesting the hearing notice of its decision under Rule 2.02(1) and shall set out in the notice the reasons for the decision and the requirements for resuming the processing of the notice requesting a hearing. |
RULE 3: REQUIREMENTS FOR RESUMING THE PROCESSING OF THE NOTICE REQUESTING A HEARING
| 3.01 | Where the decision not to process a notice requesting a hearing is based |
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| (a) | in whole or in part on the reasons referred to in Rule 2.02(1)(a), the Board will resume processing the notice requesting a hearing if the outstanding documentation is filed within twenty (20) days of the service of the notice pursuant to Rule 2.02(2); |
| (b) | in whole or in part on the reasons referred to in Rule 2.02(1)(b), |
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| (i) | the party requesting the hearing may make written submissions to the Board with respect to the dismissal within twenty (20) days of the service of the notice pursuant to Rule 2.02(2); |
| (ii) | The Board or the Registrar shall consider any submissions made under Rule 2.02(3)(b)(i) in deciding whether to resume processing the notice requesting a hearing; or |
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| (c) | in whole or in part on the reasons referred to in Rule 2.02(1)(c), the Board will resume processing the notice requesting a hearing if the outstanding technical defect is corrected within twenty (20) days of the service of notice pursuant to the Rule 2.02(2). |
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RULE 4: DISMISSAL OF A PROCEEDING WITHOUT A HEARING
| 4.01 | Subject to Rule 4.03(2), the Board may dismiss a proceeding without a hearing if, |
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| (a) | the proceeding is frivolous, vexatious or is commenced in bad faith; |
| (b) | the proceeding relates to matters that are outside the jurisdiction of the Board; or |
| (c) | some aspect of the statutory requirements for bringing the proceeding has not been met. |
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Notice
| 4.02 (1) | Before dismissing a proceeding under this Rule, the Board shall give notice of its intention to dismiss the proceeding to: |
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| (a) | all parties to the proceeding if the proceeding is being dismissed for reasons referred to in Rule 4.01(b); or |
| (b) | the party who requested the hearing if the proceeding is dismissed for any other reason. |
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| (2) | The notice of intention to dismiss a proceeding shall set out the reasons for the dismissal and the right to make written submissions to the Board with respect to the dismissal within twenty (20) days of service of the notice of intention to dismiss. |
Right to Make Submissions
| 4.03 |
| (1) | A party who receives notice under Rule 4.02 may make written submissions to the Board with respect to the dismissal within twenty (20) days of service of the notice of intention to dismiss. |
| (2) | The Board shall not dismiss a proceeding under this Rule until it has given notice under Rule 4.02 and considered any submissions made under (1) above. |
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RULE 5: NOTICE OF HEARING
Appointing Time and Place of Hearing
| 5.01(1) | Where a person requests a hearing by the Board in accordance with Rule 2, the Registrar may send to the applicant, or the applicant's counsel or agent, if represented by counsel or agent, an Acknowledgement within fifteen days of receipt of the notice requesting a hearing. |
| (2) | The Acknowledgement shall specify what additional information, if any, is required by the Registrar in order to complete the request for a hearing, and may include a request for: |
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| (a) | a copy of the decision being appealed from; |
| (b) | the decision or remedy being requested; |
| (c) | copies of any documents the applicant intends to produce to rely on in support of the appeal; |
| (d) | a summary of the reasons why the applicant disagrees with the decision being appealed; |
| (e) | the applicant to indicate of type of hearing preferred; |
| (f) | such further and other information as the Registrar may require or the Board may direct.
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-| (3) | The information requested in the Acknowledgement shall be filed by the Applicant with the Registrar, and served upon every other Party, within twenty (20) days of the date of the Acknowledgement, failing which the Appeal may be considered abandoned. |
| (4) | The Respondent, and any other Party to the Hearing, shall file with the Registrar, and serve upon every other Party, the Grounds of Response, and any additional material to be relied upon within twenty (20) days of the time set out in sub-rule 5.01(3). |
Appointing Time and Place For Hearing
| 5.02 | Where an applicant has completed a request for hearing, the Registrar or the Board shall appoint a time and place for the hearing of the appeal. |
Notice of Hearing
| 5.03(1) | The Registrar shall provide a notice of hearing to all parties. |
| (2) | A notice of hearing shall include a reference to the statutory authority under which the hearing will be held. |
| (3) | The Board may, in its discretion, choose the appropriate type of hearing and specify the type of hearing in the notice of hearing. |
| (4) | The Board may include in the notice any other information it considers necessary for the proper conduct of a hearing. |
Oral Hearing
| 5.04 | The notice of an oral hearing shall include: |
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| (a) | a statement of the time, place and purpose of the hearing; and; |
| (b) | a statement that if the party or his or her agent or counsel notified does not attend at the hearing, the Board may proceed in the party's absence and the party will not be entitled to any further notice in the proceeding. |
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Written Hearing
| 5.05 | A notice of a written hearing shall include: |
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| (a) | a statement of the time and purpose of the hearing, and details about the manner in which the written submissions will be exchanged; |
| (b) | a statement that the only purpose of the hearing is to deal with procedural matters, if that is the case; and |
| (c) | if clause (b) does not apply, a statement that the party notified may, by satisfying the Board that there is good reason for not holding a written hearing, require the Board to hold the hearing as an electronic or oral hearing and an indication of the procedure to be followed for the purpose; |
| (d) | directions respecting the exchange of information in writing; |
| (e) | a list of documents and materials that have been filed by the appellant and respondent for the Board's consideration; |
| (f) | a statement that the parties will be obliged to provide together with their final submissions, any further documents or materials that each is relying on to support its position at least seven (7) days prior to the scheduled date of the written hearing; |
| (g) | any other information the Board considers advisable. |
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Electronic Hearing
| 5.06 | A notice of an electronic hearing shall include: |
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| (a) | a statement of the time and purpose of the hearing, and details about the manner in which the hearing will be held; |
| (b) | a statement that the only purpose of the hearing is to deal with procedural matters, if that is the case; |
| (c) | if clause (b) does not apply, a statement that the party notified may, by satisfying the Board that holding the hearing as an electronic hearing is likely to cause the party significant prejudice, require the Board to hold the hearing as an oral hearing and an indication of the procedure to be followed for that purpose; and |
| (d) | a statement that if the party notified neither acts under clause (c), if applicable, nor participates in the hearing in accordance with the notice, the Board may proceed without the party's participation and the party will not be entitled to any further notice in the proceeding; |
| (e) | any other information the Board considers advisable. |
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Effect of non-attendance at Hearing
| 5.07(1) | Where notice of an oral hearing has been given to a party to a proceeding in accordance with these Rules and the party does not attend at the hearing, the Board may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding. |
| (2) | Where notice of a written hearing has been given to a party to a proceeding in accordance with these Rules and the party: |
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| (a) | does not satisfy the Board that there is good reason for not holding the hearing as a written hearing pursuant to Rule 17.02; and |
| (b) | does not participate in the hearing in accordance with the notice; |
| the Board may proceed without the party's participation and the party is not entitled to any further notice in the proceeding. |
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| (3) | Where notice of an electronic hearing has been given to a party to a proceeding in accordance with these Rules and the party: |
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| (a) | does not satisfy the Board that holding the hearing as an electronic hearing is likely to cause the party significant prejudice pursuant to Rule 18; and |
| (b) | does not participate in the hearing in accordance with the notice; |
| the Board may proceed without the party's participation, and the party is not entitled to any further notice in the proceeding. |
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RULE 6: SERVING AND FILING DOCUMENTS
| 6.01 | If a party intends to make use of any written or documentary evidence at the hearing not already provided to the Board, that party is required to serve one copy of the documents on all other parties and to file five (5) copies of such material with the Board. |
Access to documents
| 6.02 | Subject to the Restricted Access Rule, all parties are entitled to receive every document that the Board received in a proceeding. |
Serving documents
| 6.03(1) | "Service" means the effective delivery of the documentation to any person or to the person's lawyer or agent. |
| (2) | Service is deemed to be effective when delivered: |
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| (a) | by regular, registered or certified mail on the seventh day after the day of mailing; |
| (b) | by facsimile transmission, on the same day as the transmission, if the document consists of sixteen (16) pages or less inclusive of the cover page. A document of more than 16 pages may be served by facsimile transmission if the party receiving the transmission gives prior consent. |
| (c) | by courier, including Priority Post, on the second full day after the document was given to the courier by the party serving; or, |
| (d) | as directed by the Board; |
| at the last known address, unless the person to whom the notice is to be given establishes that he or she, acting in good faith and through absence, accident, illness or other causes beyond his/her control, failed to receive the notice until a later date or at all.. |
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| (3) | Documents delivered after 4:00 p.m. shall be deemed to have been delivered on the next day that is not a holiday. |
| (4) | A person who serves or files a document shall include with it a statement of the person's address, telephone number and the name of the proceeding to which the document relates. |
Filing Documents
| 6.04(1) | Documents may be filed with the Board by any of the methods of delivery set out in Rule 6.03. |
| (2) | Documents filed by fax shall be filed by 2:00 p.m. except with leave of the Board. |
| (3) | The Board may direct that a statement be filed indicating who has been served and what documents have been served. |
RULE 7: TIME
Computation
| 7.01(1) | In the computation of time under these Rules, unless the context requires otherwise: |
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| (a) | where there is a reference to a number of days between two events, they shall be counted excluding the day on which the first event happens and including the day on which the second event happens; |
| (b) | where the time for doing an act under these Rules expires on a holiday, the act may be done on the next day that is not a holiday; and; |
| (c) | service of a document made after 4:00 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday. |
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| (2) | Under these rules, "holiday" means: |
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| (a) | any Saturday or Sunday; |
| (b) | New Year's Day |
| (c) | Good Friday; |
| (d) | Easter Monday; |
| (e) | Victoria Day; |
| (f) | Canada Day; |
| (g) | Civic Holiday; |
| (h) | Labour Day; |
| (i) | Thanksgiving Day; |
| (j) | Remembrance Day; |
| (k) | Christmas Day; |
| (l) | Boxing Day; and |
| (m) | any special holiday proclaimed by the Governor General or the Lieutenant Governor; |
| and where New Year's Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday; and where Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays; and where Christmas Day falls on a Friday, the following Monday is a holiday. |
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Extension or Abridgement of Time
| 7.02(1) | The Board may, upon motion by any party or upon motion by the Board, extend or abridge the time prescribed by these Rules or make an order on such terms, if any, that the Board deems necessary. |
| (2) | The Board may exercise its discretion under subrule (1) before or after the expiration of the time prescribed. |
RULE 8: PRE-HEARING CONFERENCES
| 8.01(1) | The Board may direct the parties to participate in one or more pre-hearing conferences to consider: |
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| (a) | the settlement of any or all of the issues; |
| (b) | the identification and simplification of the issues; |
| (c) | facts or evidence that may be agreed upon; |
| (d) | issues relating to disclosure and the exchange of information; |
| (e) | the dates by which any steps in the proceeding are to be taken or begun; |
| (f) | the estimated duration of the hearing; and; |
| (g) | any other matter which the Board decides or to which the parties consent that may assist in the just and most expeditious disposition of the proceeding. |
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Notice
| 8.02(1) | Notice of a pre-hearing conference shall be given to the parties and to such persons as the Board directs. |
| (2) | The notice shall include: |
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| (a) | the date, time, place and purpose of the pre-hearing conference; |
| (b) | whether parties are required to exchange or file documents or pre-hearing submissions as prescribed by Rule 8.03 and, if so, the issues to be addressed and the date when they are required; |
| (c) |
| whether parties are required to attend in person, and |
| (i) | if so, that they may be represented by counsel or agent; or |
| (ii) | if not, that their counsel or agent must be given authority to make agreements and undertakings on their behalf respecting the matters to be addressed at the pre-hearing conference; |
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| (d) | a statement that the member of the Board presiding at the pre-hearing conference may make orders with respect to the conduct of the proceeding which will be binding on all parties. |
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Exchange of Documents
| 8.03 | The member of the Board or person designated to preside at a pre-hearing conference may direct the parties to file and exchange, by a specified date, documents or pre-hearing submissions, may prescribe the issues to be addressed, and may direct that such documents or submissions are not available to the public or to the hearing panel. |
Oral, Written, Electronic
| 8.04 | A pre-hearing conference may be held in person, in writing, or electronically. |
Accessibility to the Public
| 8.05 | A pre-hearing conference shall be held in the absence of the public unless the Board directs that it be open to the public. |
Who may Preside
| 8.06(1) | The Chair of the Board may designate a member of the Board or any other person to preside at the pre-hearing conference. |
| VALIGN=TOP>(2) | A member of the Board or other person designated to preside at the pre-hearing conference may make such orders as he or she considers necessary or advisable with respect to the conduct of the proceeding, including adding parties. |
Settlement
| 8.07 | If settlement of any issues is discussed at a pre-hearing conference: |
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| (a) | statements made without prejudice at a pre-hearing conference may not be communicated to the hearing panel; |
| (b) | the member who presides at a pre-hearing conference at which the parties attempt to settle issues shall not preside at the hearing of the appeal unless all the parties consent; |
| (c) | an agreement to settle any or all of the issues binds the parties to the agreement but is subject to approval by the Board; |
| (d) | all agreements, orders and decisions which dispose of a proceeding as it affects any party shall be made available to the public unless the Board directs otherwise. |
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Orders, Agreements, Undertakings
| 8.08(1) | Orders, agreements and undertakings made at a pre-hearing conference shall be recorded in a memorandum prepared by or under the direction of the person presiding at the pre-hearing conference. |
| (2) | Copies of this memorandum may be provided to the parties and to the members of the Board members presiding at the hearing of the matter and to such other persons as the person presiding at the pre-hearing conference directs. |
| (3) | The orders, agreements and undertakings in the memorandum shall govern the conduct of the proceeding and are binding upon the parties to the proceeding unless otherwise ordered by the Board. |
RULE 9: MOTIONS
| 9.01 | The Board may hold a motion upon the request of a party or, if in its own discretion, it deems a motion advisable for the following purposes: |
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| (a) | to rule upon its jurisdiction; |
| (b) | to give directions concerning Board procedures; |
| (c) | for any other purpose which the Board feels is necessary to carry out its functions. |
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Procedure to bring a motion
| 9.02(1) | Where a party intends to bring a motion, the party shall request a time and date for the hearing of the motion from the Registrar, and obtain directions regarding the time limits for filing and serving motion materials. |
| (2) | A party bringing a motion shall then file a Notice of Motion with the Registrar and serve the Notice of Motion on the Respondent and every other party. |
| (3) | The Notice of Motion shall be in writing and shall: |
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| (a) | contain the decision or order sought, the reasons for bringing the motion and state the documentary or other evidence to be relied upon in support of the motion; |
| (b) | include an affidavit setting out a clear and concise statement of the facts; and |
| (c) | be accompanied by any documents that may support the motion. |
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| (4) | A party requesting a motion shall serve a copy of the notice of motion on all parties when the notice of motion is filed with the Registrar. |
| (5) | A party who wishes to respond to the motion may file with the Registrar and serve on all parties any affidavit or other supporting material to be relied upon, within the time limits directed by the Board. |
| (6) | The Board may hold a motion by way of an oral, written or electronic hearing. |
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RULE 10: ADJOURNMENTS
| 10.01(1) | A hearing may be adjourned at the discretion of the Board upon its own motion or upon the motion of a party where that party satisfies the Board that the adjournment is required to permit an adequate hearing to be held. |
| (2) | In deciding whether to grant an adjournment, the Board may consider one or more of the following factors: |
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| (a) | the sufficiency of the reasons advanced for the request to adjourn; |
| (b) | the timeliness of the request; |
| (c) | the resources of the Board; |
| (d) | the prejudice to the parties; |
| (e) | whether any adjournments have been granted previously; |
| (f) | the consent of the parties; |
| (g) | any other relevant factor. |
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| (3) | The Board may grant adjournments on such terms and conditions as it considers advisable. |
| (4) | Any parties seeking an adjournment shall seek the consent of the opposing party or parties before bringing a motion before the Board. |
| (5) | If consent is obtained pursuant to subsection (4) above, the party seeking the adjournment shall contact the Registrar and provide evidence in writing of the request for an adjournment, the reasons for the request and the consent of the other party or parties. The Registrar shall then provide the request to the Board who will decide whether or not to grant the adjournment. If the Board declines to grant the adjournment, the party may seek a hearing of the request under subsection (7). |
| (6) | If the party seeking an adjournment is unable to obtain the consent of the other party or parties, the party seeking the adjournment may: |
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| (a) | request a motion to determine the issue by filing a notice of motion pursuant to Rule 9; or |
| (b) | request that the adjournment issue be determined at the beginning of the hearing if it is impractical to schedule a separate motion prior to the hearing. Notice of such an adjournment request should be given to the other parties and the registrar at the earliest possible time prior to the hearing. |
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| (7) | The Board may, in its discretion, refuse an adjournment even though the parties consent. |
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RULE 11: CONSTITUTIONAL QUESTIONS
By resolution, dated May 14, 2004, the Board amended the Rules of Practice and Procedure to revoke Rule 11.
Rule 11 provided for a procedure to be followed where a party intends to raise a question about the constitutional validity or applicability of legislation, a regulation or by-law made under legislation, or a rule of common law, or to claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms.
For further information, please refer to section 6(3) of the Ministry of Health Appeal and Review Boards Act, 1998, S.O. 1998, c.18, schedule H, which provides in part:
...the Board shall not inquire into or make a decision concerning the constitutional validity of a provision of an Act or a regulation.
RULE 12: DISCLOSURE
| 12.01(1) | "document" includes a sound recording, videotape, file, photograph, chart, x-ray, graph, map, plan survey, book of account, and any information recorded or stored by any means. |
| (2) | At any stage of the proceeding before completion of the hearing, the Board may make orders for: |
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| (a) | the exchange of documents; |
| (b) | the oral or written examination of a party; |
| (c) | the exchange of witness statements and reports of expert witnesses; |
| (d) | the provision of particulars; |
| (e) | a party to provide a list disclosing all relevant documents and things in the possession or control of the party; |
| (f) | to provide a party with an opportunity to view documents; or |
| (g) | any other form of disclosure. |
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| (3) | Subsection (2) does not authorize the making of an order requiring disclosure of privileged information. |
| (4) | The Board shall afford to a person who is a party to proceedings before the Board an opportunity to examine, before the hearing, any written or documentary evidence that will be produced or any report the contents of which will be given in evidence at the hearing. |
| (5) | Members of the Board holding a hearing shall not have taken part, before the hearing, in any investigation or consideration of the subject-matter of the hearing and shall not communicate directly or indirectly in relation to the subject-matter of the hearing ,with any person, or with any party or representative of the party, except upon notice to and with opportunity for all parties to participate, but the Board may seek legal advice from an adviser independent from the parties and, in such case, the nature of the advice should be made known to the parties in order that they may make submissions as to the law. |
| 12.02 | Every Party shall disclose to every other Party to the proceeding, and in any event, no later than fifteen (15) days before the hearing date: |
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| (a) | a copy of any documents and expert reports to be relied upon, and where appropriate, a copy of the curriculum vitae of the authors of any such expert reports; |
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Failure to Disclose
| 12.03 | If a party fails to comply with an order of the Board, or this rule, the party may not refer to the document or thing or introduce the document or thing in evidence at the hearing without the consent of the Board which may be on terms and conditions as the Board considers just. |
Order for witness statements
| 12.04 | The Board may order a party to the hearing to provide to every other party and file with the Board witness statements or statements of the evidence witnesses will give. |
Failure to provide witness statement
| 12.05 | If a party fails to provide a witness statement or a summary of the evidence a witness will give in accordance with Rule 12.04, the party may not call the person as a witness without the consent of the Board which may be on such terms and conditions as the Board considers just. |
Incomplete witness statement
| 12.06 | A party may not call a witness to testify to matters not disclosed in the witness statement without the consent of the Board which may be on such terms and conditions as the Board considers just. |
Expert Witness
| 12.07 | A party that intends to call an expert witness at the hearing shall provide to every other party and file with the Board a written report signed by the expert containing the name, address and qualifications of the expert and the substance of the expert's proposed evidence including a list of all the documents to which the expert will refer. |
Failure to provide expert witness statement
| 12.08 | If a party fails to comply with the provisions of Rule 12.07, the party may not call the expert witness without consent of the Board which may be on such terms and conditions as the Board considers just. |
Where Character, etc. of a Party in Issue
| 12.09 | If the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party or Board making such allegations shall disclose to the party against whom the allegations are made all evidence in the party or Board's possession or control relevant to the allegations including: |
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| (a) | all witness statements and transcripts or notes of witness interviews or, if these do not exist, statements of evidence that each witness is expected to give; |
| (b) | all documents and other things; and |
| (c) | all experts' reports. |
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Order for questions
| 12.10 | The Board may order the examination of a party by another party by way of oral or written questions and may order the dates by which questions are to be asked and answered on such terms as directed by the Board. |
RULE 13: RESTRICTED ACCESS
Request for Restricted Access
| 13.01 | A party may, prior to or upon the filing of a document, request that all or any part of the document not be accessible to the public. |
Access to Public
| 13.02(1) | A request that a document not be accessible to the public shall: |
| |
| (a) |
| state: |
| (i) | the reason for the request, including the details of the nature and extent of the specific harm that would result if the document was accessible to the public; and |
| (ii) | any objection to filing an abridged version of the document, and the reasons for such an objection; |
|
| (b) | be filed with the Board and served on the parties. |
|
| (2) | Where a party has made a request under this rule, the document shall not be made accessible to the public until the Board decides otherwise. |
Objections
| 13.03(1) | A person may object to a request for restricted accessibility by filing with the Board and serving on the parties an objection to the request within ten (10) days of the person being made aware of the request. |
| (2) | An objection shall state the reasons for the objection and why access would be in the public interest. |
| (3) | The party seeking restricted access has an opportunity to reply to an objection within ten (10) days of receiving the objection. |
Criteria
| 13.04 | In considering a request for restricted access, the Board shall consider whether the document may disclose: |
| |
| (a) | matters involving public security; or |
| (b) | intimate financial or personal matters or other matters of such a nature, having regard to the circumstances and whether the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public. |
|
Application of criteria
| 13.05(1) | If the criteria in Rule 13.04 are not met, the Board shall order that a document be accessible to the public within ten (10) days unless the party requesting restricted access chooses to withdraw the document. |
| (2) | Where a party withdraws the document, it shall be returned to the party by the Board and the other parties and their counsel or agent to whom the document may have been provided. |
| (3) | If the criteria in Rule 13.04 are met, the Board may order: |
| |
| (a) | that the document not be accessible to the public; |
| (b) | that an abridged version of the document be filed with the Board; and |
| (c) | that access be provided on any conditions the Board considers appropriate. |
|
Conditions of Restricted Access Order
| 13.06(1) | Where the Board directs that there be restricted access to a document, |
| |
| (a) | the document shall be marked "Confidential" and shall be kept separate from the public record, and access shall only be by order of the Board or as authorized by law; |
| (b) |
| it may be made available to: |
| (i) | Board staff; |
| (ii) | the parties to a hearing; |
| (iii) | the counsel or agent for a party to the proceeding; |
| (iv) | a consultant, to assist a counsel or agent of a party, at the discretion of the Board; |
| (v) | such other persons who the Board considers appropriate; and |
|
| (c) | the Board may impose such conditions as the Board considers appropriate. |
|
| (2) | The Board may require as a condition that all persons participating in a hearing shall return any confidential documents to the Registrar after the appeal period has passed. |
Declaration and Undertaking
| 13.07 | All parties permitted to receive documents that are not accessible to the public, except for Board staff, shall file a Declaration and Undertaking, in Form 13. |
RULE 14: HEARINGS
Hearings to be Public, exceptions
Oral Hearings
| 14.01(1) | An oral hearing shall be open to the public except where the Board is of the opinion that: |
| |
| (a) | matters involving the public security may be disclosed; or |
| (b) | intimate financial or personal or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public; |
| in which case the Board may hold the hearing in the absence of the public. |
|
| (2) | A party may request at any point during a hearing that the public be excluded. |
| (3) | The Board may in its discretion, determine who constitutes "the public" for the purposes of this Rule. |
Written Hearings
| 14.02(1) | In a written hearing, members of the public are entitled to reasonable access to the documents submitted as evidence or to all documents submitted to the Board, unless the Board is of the opinion that clause 12.01(1) (a) or b) applies. |
| (2) | A party may request at any point during a written hearing that access to all or part of the written documents be denied to the public. |
Electronic Hearings
| 14.03 | The Board need not provide public access to an electronic hearing. |
Parties
| 14.04 | The parties to a proceeding before the Board shall be the persons specified as parties by or under the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding, and any other persons who, in the Board's discretion, are proper parties to the proceeding. |
Representation of Parties
| 14.05(1) | A party to a proceeding may be represented by counsel or an agent. |
| (2) | Where an applicant to the Board is a minor, the Board may require that the minor be represented by a parent or legal guardian and that the parent or legal guardian provide the Board with a sworn affidavit declaring his or her relationship to the minor and evidencing that there is no conflict of interest between them. |
| (3) | If the Board is not satisfied that the minor's interests are adequately protected by the person claiming to represent the minor, the Board may notify the Children's Lawyer and postpone the hearing until the Board is of the opinion that the minor is adequately represented. |
Sittings
| 14.06 | Hearings shall be held in Toronto unless otherwise ordered by the Board, except as otherwise provided by statute. |
Record of Proceeding
| 14.07 | The Board shall compile a record of any proceeding in which a hearing has been held which shall include: |
| |
| (a) | any application, complaint, reference or other document, if any, by which the proceeding was commenced; |
| (b) | the notice of hearing; |
| (c) | any interlocutory orders made by the Board; |
| (d) | all documentary evidence filed with the Board, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding; |
| (e) | the transcript, if any, of the oral evidence given at the hearing; and |
| (f) | the decision of the Board and the written reasons therefor, where written reasons have been given. |
|
Recording Evidence
| 14.08 | The oral evidence taken before the Board at a hearing shall be recorded and, if so required, copies of a transcript thereof shall be furnished upon the same terms as the Ontario Superior Court of Justice, with respect to, for example, costs. |
Proceedings involving similar questions
| 14.09 | If two or more proceedings before the Board involve the same or similar questions of fact, law or policy, the Board may: |
| |
| (a) | combine the proceedings or any part of them, with the consent of the parties; |
| (b) | hear the proceedings at the same time, with the consent of the parties; |
| (c) | hear the proceedings one immediately after the other; or |
| (d) | stay one or more of the proceedings until after the determination of another one of them. |
|
Disposition of proceeding without a hearing
| 14.10 | If the parties consent, the proceeding may be disposed of by a decision of the Board given without a hearing. |
Incapacity of Member of Board
| 14.11 | If a member of the Board who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision. |
Expiry of Term
| 14.12 | If the term of office of a member of the Board who has participated in a hearing expires before a decision is given, the term shall be deemed to continue for the purpose of participating in the decision. |
Maintenance of order at Oral and Electronic Hearings
| 14.13 | The Board may make such orders or give such directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing, and, if any person disobeys or fails to comply with any such order or direction, the Board or a member thereof may call for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose. |
RULE 15: WITNESSES
Administration of Oaths
| 15.01 | A member of the Board has power to administer oaths and affirmations for the purpose of any of its proceedings and the Board may require evidence before it to be given under oath or affirmation. |
Rights of parties to examine witnesses at hearings
| 15.02 | A party to a proceeding may, at an oral or electronic hearing: |
| |
| (a) | call and examine witnesses and present evidence and submissions; and |
| (b) | conduct cross-examinations of witnesses at the hearing to the extent reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. |
|
Rights of Witnesses to Counsel
| 15.03 (1) | A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the Board. |
| (2) | Where an oral hearing is closed to the public, the counsel or agent for a witness is not entitled to be present except when that witness is giving evidence. |
Summons to Witness
| 15.04 (1) | The Board may issue a summons to a witness on its own initiative or upon request of a party. |
| (2) | The Board may require any person, including a party, by summons: |
| |
| (a) | to give evidence on oath or affirmation at an oral or electronic hearing; and |
| (b) | to produce in evidence at an oral or electronic hearing documents and things specified by the Board; |
| relevant to the subject matter of the proceeding and admissible at a hearing. |
|
| (3) | A summons issued under subsection (1) shall be in the prescribed form (in English or French) and, shall be signed by the Chair of the Board or in such other manner as documents on behalf of the Board may be signed under the statute constituting the Board. |
| (4) | The summons shall be served personally on the person summoned by the party who requested the summons. |
| (5) | The person summoned is entitled to receive the same fees or allowances for attending at or otherwise participating in the hearing as are paid to a person summoned to attend before the Ontario Superior Court of Justice, and payment to such fees is the responsibility of the party who requested the summons. |
| (6) | A judge of the Ontario Superior Court of Justice may issue a warrant against a person if the judge is satisfied that: |
| |
| (a) | a summons was served on the person under this section; |
| (b) | the person has failed to attend or to remain in attendance at the hearing (in the case of an oral hearing) or has failed otherwise to participate in the hearing (in the case of an electronic hearing) in accordance with the summons; andX |
| (c) | the person's attendance or participation is material to the ends of justice. |
|
| (7) | The warrant shall be in the prescribed form (in English or French), directed to any police officer, and shall require the person to be apprehended anywhere within Ontario, brought before the Board forthwith and, |
| |
| (a) | detained in custody as the judge may order until the person's presence as a witness is no longer required; or |
| (b) | in the judge's discretion, released on a recognizance, with or without sureties, conditioned for attendance or participation to give evidence. |
|
| (8) | Service of a summons may be proved by affidavit in an application to have a warrant issued under subsection (6). |
| (9) | Where an application to have a warrant issued is made on behalf of the Board, the Chair of the Board may certify to the judge the facts relied on to establish that the attendance or other participation of the person summoned is material to the ends of justice, and the judge may accept the certificate as proof of the facts. |
| (10) | Where the application is made by a party to the proceeding, the facts relied on to establish that the attendance or other participation of the person is material to the ends of justice may be proved by the party's affidavit. |
| (11) | The party requesting the summons from the Board shall ensure that it is served within a reasonable time before the date the witness' attendance is required. |
Contempt Proceedings
| 15.05 | Where any person without lawful excuse: |
| |
| (a) | on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or |
| (b) | being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing refuses to take an oath or to make an affirmation legally required by the Board to be taken or made, or to produce any document or thing in his or her power or control legally required by the Board to be produced by him or her or to answer any question to which the Board may legally require an answer; or |
| (c) | does any other thing that would, if the Board had been a court of law having power to commit for contempt, have been contempt of that court; |
| the Board may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court. |
|
Protection for Witnesses
| 15.06 | A witness at an oral or electronic hearing shall be deemed to have objected to answer any question asked him or her upon the ground that the answer may tend to incriminate him or her or may tend to establish his or her liability to civil proceedings at the instance of the Crown, or of any person, and no answer given by a witness at a hearing shall be used or be receivable in evidence against the witness in any trial or other proceeding against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence. |
Abuse of Processes
| 15.07(1) | The Board may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. |
| (2) | The Board may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding. |
| (3) | The Board may exclude from a hearing anyone, other than a barrister and solicitor qualified to practise in Ontario, appearing as an agent on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser. |
RULE 16: EVIDENCE
Admissible Evidence at a Hearing<
| 16.01(1) | Subject to subsections (2) and (3) below, the Board, in its discretion, 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 hearing and may act on such evidence, but the Board may exclude anything unduly repetitious. |
|
| (2) | Nothing is admissible in evidence at a hearing: |
| |
| (a) | that would be inadmissible in a court by reason of any privilege under the law of evidence; or |
| (b) | that is inadmissible by the statute under which the proceeding arises or any other statute. |
|
| (3) | Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding before the Board. |
| (4) | Where the Board is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing. |
| (5) | Where a document has been filed in evidence at a hearing, the Board may, or the person producing it or entitled to it may with leave of the Board, cause the document to be photocopied and the Board may authorize the photocopy to be filed in evidence in the place of the document filed and release the document filed, or may furnish to the person producing it or the person entitled to it a photocopy of the document filed certified by a member of the Board. |
| (6) | A document purporting to be a copy of a document filed in evidence at a hearing, certified to be a copy thereof by a member of the Board, is admissible in evidence in proceedings in which the document is admissible as evidence of the document. |
Previously admitted evidence
| 16.02(1) | The Board may treat previously admitted evidence as if it had been admitted in a proceeding before the Board, if the parties to the proceeding consent. |
| (2) | In subsection (1), "previously admitted evidence" means evidence that was admitted, before the hearing of the proceeding referred to in that subsection: |
| |
| (a) | in another proceeding to which these Rules apply; or |
| (b) | in a proceeding to which these Rules do not apply that is before an Ontario court or a court or other board outside Ontario. |
|
Witness Panels
| 16.03 | The Board may receive evidence from panels of witnesses composed of two or more persons, if the parties have first had an opportunity to make submissions in that regard. |
Return of Exhibits
| 16.04(1) | The Board will retain all exhibits filed in proceedings before it until thirty (30) days after the time for an appeal of the Board's decision has lapsed, unless the decision is appealed. |
RULE 17: WRITTEN HEARINGS
When to hold a written hearing
| 17.01(1) | The Board may conduct, at any time, a proceeding or part of a proceeding by means of a written hearing. |
| (2) | The Board shall not hold a written hearing if a party satisfies the Board that there is good reason for not doing so. |
| (3) | Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters. |
| (4) | In deciding when to hold a written hearing, the Board may consider any relevant factors, including: |
| |
| (a) | the suitability of a written hearing format considering the subject matter of the hearing, including the extent to which the matters are in dispute; |
| (b) | whether the nature of evidence is appropriate for a written hearing, including whether credibility is an issue and the extent to which the facts are in dispute; |
| (c) | the extent to which the matters in dispute are questions of law; |
| (d) | the convenience of the parties; |
| (e) | the cost, efficiency and timeliness of proceedings; |
| (f) | avoidance of unnecessary length or delay; |
| (g) | ensuring a fair and understandable process; |
| (h) | the desirability or necessity of public participation or public access to the Board's process; |
| (i) | any other consideration affecting the fulfilment of the Board's statutory mandate. |
|
| (5) | The Board may continue a written hearing as an oral or electronic hearing whenever the Board considers it appropriate. |
| (6) | If the Board decides to convert a written hearing into an oral or electronic hearing format or to start the hearing again as an oral or electronic hearing, it shall notify the parties of its decision and may supply directions as to the holding of that hearing. |
Objections to Written Hearing
| 17.02(1) | A party shall not object to a hearing being held as a written hearing where the only purpose of the hearing is to deal with procedural matters. |
| (2) | A party that objects to a hearing being held as a written hearing shall notify the Board and all other parties of its objection in writing within twenty (20) days of the date of being notified that a written hearing will be held. |
Contents of Objections
| 17.03 | A notice of objection shall be in the form of a notice of motion, with accompanying affidavits in support of the motion and the objecting party and all parties responding to the motion, shall follow the usual procedure for the hearing of motions. |
Procedure When Objection is Made
| 17.04(1) | If the Board receives an objection, it may: |
| |
| (a) | accept the objection, cancel the written hearing and schedule either an electronic or oral hearing; or, |
| (b) | if the Board is satisfied that there is no good reason not to do so, reject the objection without inviting responses from the other parties and proceed with the written hearing; or, |
| (c) | provide all other parties with an opportunity to respond to the objection and, after considering the objection and all responses, proceed with the written hearing or schedule an electronic or oral hearing. |
|
| (2) | For the purpose of (1)(c), the Board shall provide directions in the notice for the form and timing of their response and for the reply, if any, of objecting parties to these responses. |
Documents
| 17.05(1) | In a written hearing, all the parties are entitled to receive every document that the Board receives in the proceeding. |
| (2) | Written documents submitted to the Board must be typewritten. |
Supporting Documents
| 17.06(1) | The applicant shall file with the Registrar and serve on every other party the evidence that supports the remedy or order requested and its submissions within (20) twenty days of the date of the Acknowledgement. |
| (2) | The submissions shall: |
| |
| (a) | contain the remedy or order requested; |
| (b) | set out the grounds upon which the remedy or order requested is made; |
| (c) | identify the documents that support the remedy or order requested; and |
| (d) | provide a list of the documents that the party is relying on to support the remedy or order requested. |
|
| (3) | The Respondent, and any other Party to the Hearing, shall file with the Registrar, and serve on every other Party, the Grounds of Response, and any additional evidence to be relied upon within twenty days of the time set out in sub-rule 5.01(3). |
| (4) | The Board may require any party to provide further information, and this information shall be supplied to the other parties and persons as directed by the Board. |
| (5) | If the applicant wishes to reply to the submissions of any party, it shall do so by filing and serving its reply within ten (10) days of receiving the submissions. |
Evidence
| 17.07(1) | The evidence shall be in writing or, when electronic transmission is permitted, it shall be in the form directed by the Board. |
| (2) | The evidence shall identify the person giving the evidence and shall either be in certified form or in affidavit form. |
| (3) | Evidence shall include all documents and things a party is relying on to support the remedy or order requested. |
Oral Examination
| 17.08(1) | There shall be no oral examination unless ordered by the Board. |
| (2) | If a party requests, the Board may order that a party present a witness to be examined upon such conditions as the Board directs. |
Hearing in the absence of a party
| 17.09 | If a party does not object or participate the Board may proceed without the party's participation and the party will not be entitled to any further notice in the proceeding. |
RULE 18: ELECTRONIC HEARINGS
| 18.01(1) | The Board may hold an electronic hearing in a proceeding. |
| (2) | The Board shall not hold an electronic hearing if a party satisfies the Board that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice. |
| (3) | Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters. |
| (4) | In an electronic hearing, all the parties and the Board members must be able to hear one another and any witnesses throughout the hearing. |
| (5) | If (4) cannot be satisfied, the Board may adjourn the hearing and direct that an electronic hearing that does not satisfy (4) is a nullity. |
Factors for Electronic Hearing
| 18.02 | In deciding whether to hold an electronic hearing, the Board may consider any relevant factors, including: |
| |
| (a) | the suitability of the electronic technology for the subject matter of the hearing; |
| (b) | whether the nature of the evidence is appropriate for an electronic hearing, including whether credibility is in issue and the extent to which the facts are in dispute; |
| (c) | the extent to which the matters in dispute are questions of law; |
| (d) | the convenience of the parties; |
| (e) | the cost, efficiency and timeliness of proceedings; |
| (f) | avoidance of unnecessary length or delay; |
| (g) | ensuring a fair and understandable process; |
| (h) | the desirability or necessity of public participation in or public access to the Board's process; and |
| (i) | any other consideration affecting the fulfilment of the Board's statutory mandate. |
|
Oral or Written Hearing
| 18.03 | The Board may continue an electronic hearing as an oral hearing or a written hearing whenever the Board deems it appropriate. The Board shall not continue hearing an electronic hearing as a written hearing if a party satisfies the Board that there is good reason for not doing so. A party that objects to the hearing being continued as a written hearing shall follow the procedure outlined in Rule 17.02. |
Objections to Electronic Hearings
| 18.04(1) | A party that objects to a hearing being held as an electronic hearing shall notify the Board and all other parties of its objection in writing within ten (10) days of the date of being notified that an electronic hearing has been requested. |
Contents of Notice of Objection
| 18.05 | A notice of objection shall be in the form of a notice of motion, with accompanying affidavits in support of the motion, and the objecting party and all parties responding to the motion shall follow the usual procedure for the hearing of motions. |
Procedure when objection is made
| 18.06(1) | If the Board receives an objection, it may: |
| |
| (a) | accept the objection, cancel the electronic hearing and either schedule an oral hearing, or, with consent of the parties, schedule a written hearing; |
| (b) | if the Board is satisfied that this will cause no significant prejudice, reject the objection without inviting responses from the other parties and proceed with the electronic hearing; or |
| (c) | provide all other parties with an opportunity to respond to the objection and, after considering the objection and all responses, proceed with the electronic hearing, schedule an oral hearing, or with consent of the parties, schedule a written hearing. |
|
| (2) | For the purpose of (c), the Board shall provide directions in the notice for the form and timing of their response and for the reply, if any, of objecting parties to these responses. |
Terms and Conditions
| 18.07 | The Board may, in order that a hearing be held electronically, impose terms and conditions including specifying who will set up the electronic hearing and requiring that a party requesting an electronic hearing pay all or part of the cost of providing the facilities necessary for the conduct of the hearing electronically. |
RULE 19: COSTS
| 19.01 (1) | Parties may request an award for costs. |
| (2) | Where the Board finds that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, the Board may order that party to pay the costs of another party or parties. |
| 19.02(1) | The Board may, on its own initiative, request submissions from the parties on the matter of costs. |
| (2) | Where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith, the party may make a request for costs. The request for costs shall be made before the end of the hearing. |
| (3) | The party requesting costs shall state the grounds for the request and the amount being requested. Supporting invoices or receipts for the expenses being claimed must be filed with the Board within five (5) days and copied to all parties. |
| 19.03(1) | The Board may adjourn the matter for submissions from the parties with respect to costs or may rule on the issue of costs at the time of the request. |
| (2) | The Board may deny or grant the request or award a different amount. |
| 19.04(1) | Examples of unreasonable, frivolous, vexatious or bad faith conduct may include but are not limited to: |
| |
| (a) | failing to attend a hearing day or to send a representative when properly served with a notice; |
| (b) |
| failing to give adequate notice or explanation for |
| (i) | changing a position taken in a pre-hearing conference or in disclosure; |
| (ii) | introducing issues not already identified or giving evidence on issues that the party did not previously dispute; or |
| (iii) | failing to call evidence on an issue the party raised in a pre-hearing conference; |
|
| (c) | failing to co-operate with other parties during the proceedings; |
| (d) | failing to comply with a procedural order or direction of the Board; |
| (e) | continuing to deal with issues which the Board has determined are irrelevant; |
| (f) | continuing to ask questions which are unduly repetitive or that the Board has determined are irrelevant; |
| (g) | failing to make reasonable efforts to combine intervention with that of similarly interested parties; |
| (h) | addressing the other parties and/or the Board rudely or disrespectfully, or acting in a disorderly manner; |
| (i) | unreasonably maligning or slurring the character of another party; |
| (j) | asking for adjournments or delays without justification; |
| (k) | failing to prepare adequately for the hearing; |
| (l) | taking unnecessary steps in a proceeding; |
| (m) | initiating a proceeding frivolously, vexatiously, or in bad faith; |
| (n) | calling a witness that the party knows will give false or misleading evidence; |
| (o) | knowingly presenting false or misleading evidence. |
|
| (2) | If the party requesting costs has also conducted him or herself in an unreasonable manner, the Board may decide not to award costs or may reduce the amount awarded. The Board is not bound to award costs if one of the examples of unreasonable, frivolous, vexatious or bad faith conduct occur. |
| 19.05 (1) | Eligible expenses include: |
| |
| (a) | Representation fees, which shall not exceed $100.00 per hour, for the services of a lawyer or paid agent. |
| (b) |
| Disbursements: |
| Travel (distance to hearings) | $0.30/km |
| Photocopying | $0.25/page |
| Long distance telephone and fax | $0.20/minute |
| Transcripts | court reporter's rate |
| Witness fees | normally the rates set by |
| | the Rules of Civil Procedure |
| | but may be increased |
| | at the discretion of the Board |
|
|
| (2) | Expenses may be claimed only for the additional hearing time resulting from the unreasonable conduct of a party. |
| (3) | In deciding the amount of a cost award, the Board may also take into consideration the party's ability to pay and the seriousness of the misconduct. |
| (4) | Parties may also claim costs for economic loss resulting from the unreasonable conduct of another party. |
|
RULE 20: DECISIONS
Notice of Facts and Opinions
| 20.01 | The Board may, in making its decision in any proceeding: |
| |
| (a) | take notice of facts that may be judicially noticed; and |
| (b) | take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. |
|
Findings of Fact
| 20.02 | The findings of fact of the Board pursuant to a hearing shall be based exclusively on evidence admissible or matters that may be noticed under these Rules. |
Decision of Board
| 20.03(1) | The decision of the majority of the members of the Board is the decision of the Board. |
| (2) | If there is no majority, the decision of the Chair or Vice-Chair governs. |
Interim Decisions and Orders
| 20.04(1) | The Board may make interim decisions and orders. |
| (2) | The Board may impose such conditions on an interim decision or order as it considers just. |
| (3) | An interim decision or order need not be accompanied by reasons. |
| (4) | The Board shall promptly notify all parties to a proceeding of any interim order or decision. |
Decisions
| 20.05(1) | The Board shall give its final decision or order in any proceeding, in writing, and shall give reasons in writing therefor, if requested by a party, or requested by statute, to all parties. |
| (2) | The Board may decide to reserve its decision at the conclusion of the appeal, subject to any statutory requirements. |
Notice of Decision
| 20.06(1) | The Board shall send each party who participated in the proceeding, or the party's counsel or agent, a copy of its final decision or order, including any written reasons that have been given: |
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| (a) | by regular lettermail; |
| (b) | by electronic transmission; |
| (c) | by telephone transmission of a facsimile; or |
| (d) | by some other method that allows proof of receipt, in accordance with Rule 6. |
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| (2) | If the copy is sent by regular lettermail, it shall be sent to the most recent addresses known to the Board and shall be deemed to be received by the party on the fifth day after the day it is mailed. |
| (3) | If the copy is sent by electronic transmission or by telephone transmission of a facsimile, it shall be deemed to be received on the day after it was sent, unless that day is a holiday, in which case the copy shall be deemed to be received on the next day that is not a holiday. |
| (4) | If the copy is sent by a method referred to in clause (1)(d), the Board's Rule 6 shall govern its deemed day of receipt. |
| (5) | If a party that acts in good faith does not, through absence, accident, illness or other cause beyond the party's control, receive the copy until a later date than the deemed day of receipt, subsection (2), (3) or (4), as the case may be, does not apply. |
Enforcement of Orders
| 20.07(1) | A certified copy of the Board's decision or order in a proceeding may be filed in the Ontario Superior Court of Justice by the Board or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. |
| (2) | A party who files an order under subsection (1) shall notify the Board within 10 days after the filing. |
| (3) | On receiving a certified copy of the Board's order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Ontario Superior Court of Justice. |
Only Members at Hearing to Participate
| 20.08 | No member of the Board shall participate in a decision of the Board pursuant to a hearing unless he or she was present throughout the hearing and heard the evidence and argument of the parties and, except with the consent of the parties, no decision of the Board shall be given unless all members so present participate in the decision. |
RULE 21: POWER TO REVIEW A DECISION PURSUANT TO SPPA, SECTION 21.2(1)
Application
| 21.01(1) | The Board may at any time correct a typographical error, error of calculation, ambiguity, technical error or similar error made in its decision or order without prior notice to the parties. |
| (2) | This part of the Rules applies to reviews conducted under section 21.2(1) of the Statutory Powers Procedure Act. |
| (3) | Before a final decision or order is issued, any application to review an interim order or procedural ruling shall be made by motion to the presiding member and not under this part of the Rules. |
General
| 21.02(1) | The Board may, if it considers it advisable, review without a hearing and without notifying the parties, all or part of its own decision or order, in accordance with these Rules, and may confirm, vary, suspend or cancel the decision or order. |
| (2) | The Board shall notify the parties if it varies, suspends or cancels its decision or order. The notice provisions set out in Rule 20.06 apply. |
| (3) | The review shall take place within a reasonable time after the decision or order is made. |
| (4) | In the event of a conflict between this Rule and any other Act, the other Act prevails. |
Who may request a review
| 21.03 | The Board may review a final decision or order at the request of a party or on its own initiative. |
Contents of a review request
| 21.04 (1) | A request for review shall be in writing and signed by the requester. |
| (2) | The request for review shall: |
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| (a) | state the reasons for requesting the review; |
| (b) | state the desired outcome; |
| (c) | attach any documents which support the request; |
| (d) | state the full name, address, telephone number and fax number (if any) of the requester; |
| (e) | if the requester has a representative, state the full name, address, telephone number and fax number (if any) of the requester representative; |
| (f) | attach a copy of the original decision or order; |
| (g) | be served on all parties to the original proceeding; |
| (h) | include a statement that the request was properly served on all other parties. |
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Threshold factor for determining a review request
| 21.05 | In deciding whether it is advisable to review all or part of a decision, the Board may consider any relevant circumstances, including: |
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| (a) | whether there is significant new evidence which was not available at the time of the original proceeding; |
| (b) | whether the Board made a material error of law or fact such that the Board would likely have reached a different decision; |
| (c) | the extent to which any party to the proceedings or any other person has relied on the decision; |
| (d) | the extent to which any party to the proceedings or any other person will be affected by the review process; |
| (e) | whether any parties to the original decision consent to the review; |
| (f) | any other rights of appeal; |
| (g) | material changes to circumstances since the original decision; |
| (h) | whether the public interest in finality of decisions is outweighed by the prejudice to the requester. |
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Time Limits
| 21.06 (1) | A request to review shall be filed within 10 days of the date of the decision. |
| (2) | A request made after this date may be considered where the Board is satisfied that there is a good reason for the delay. |
Multiple review requests
| 21.07 | Except with leave of the Chair, the Board will consider only one request for review of a decision by a party. |
Assignment and Composition of Panel
| 21.08 (1) | The request for review may be combined with the review on the merits. |
| (2) | The panel assigned to review the request for review and/or the merits may be the original decision-maker. |
Request for Review procedure
| 21.09(1) | The panel may consider the record from the original hearing, in addition to the materials filed by the requester and any other parties or persons. |
| (2) | The Board may refuse a request without seeking submissions from any other party. |
| (3) | If the Board does not refuse the request for review: |
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| (a) | the Board, or the requester if so directed, will give notice to the other parties of the request for review and provide them with the request materials; |
| (b) | the other parties will have fifteen (15) days from the receipt of the request materials to serve and file written submissions in response; |
| (c) | the requester will have a further fifteen (15) days from the receipt of any written responding submissions to serve and file any reply; |
| (d) | no further submissions will be accepted unless otherwise ordered. |
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| (4) | The panel considering the request for review may make such procedural orders as it considers appropriate and may add other parties in addition to the parties to the original hearing. |
| (5) | Where the request for review is granted, it may be granted in whole or in part, and the decision may contain any procedural directions the panel considers appropriate for the review on the merits. The procedural directions are binding on the Board on the review on the merits unless otherwise ordered. |
| (6) | The Board's decision whether to grant or refuse a request for review is final and not reviewable. |
Review on the merits procedure
| 21.10(1) | Unless otherwise ordered, a review on the merits shall be conducted. |
| (2) | On a review on the merits, the panel may confirm, vary suspend or cancel the decision or order. |
Stay Pending Request for Review and Review by Board
| 21.11 | A request for review, or a review of a decision on the merits, does not operate as a stay of the decision under review, unless otherwise ordered by the Board. |
RULE 22: APPEALS FROM BOARD DECISIONS
Appeals
| 22.01 (1) | A party to the proceedings before the Board may appeal from its decision or order to the Divisional Court where such appeals are provided for pursuant to the legislation governing the particular proceeding before the Board and in accordance with the rules of that Court. |
| (2) | Where any party appeals from a decision or order of the Board, the Board shall forthwith file in the Divisional Court the record of the proceedings before it in which the decision was made, which, together with the transcript of evidence, shall constitute the record in the appeal. |
| (3) | The party appealing from the decision of the Board is responsible for obtaining the transcript of evidence of the proceedings at its own expense. |
Appeal to Divisional Court
| 22.02 (1) | An appeal from a decision of the Board to the Divisional Court operates as a stay in the matter except where the Board or the Divisional Court orders otherwise. |
| (2) | An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2(1) of that Act is not an appeal within the meaning of subsection (1). |
Stay Pending Appeal to Board
| 22.03 | An appeal from a decision of the General Manager or of a placement coordinator is not an appeal within the meaning of section 25(1) of the Statutory Powers Procedure Act and does not operate as a stay of that decision pending the appeal to the Board. |