Overview of Contested Hearings

When You’re Challenging the Allegations Against You

The following sections of this Guide assume that you are denying some or all of the allegations against you, which means that the hearing will be contested.

Opening Statements

After you state that you are denying the allegations, the parties will make opening statements. College counsel goes first. You may then make an opening statement on your own behalf, though you do not have to.

You have two options for the timing of your opening statement:

• You may choose to speak immediately after the College’s opening and before the College begins presenting its evidence; or
• You may wait until after the College’s evidence has been presented and give your statement just before you begin presenting your own case.

The College’s opening statement provides the panel with a summary of what the College plans to prove through its evidence.

Similarly, your opening statement gives the panel a general overview of your position and the evidence you plan to provide. Your statement itself does not prove your case--you must support what you say in your opening statement through your evidence.

The purpose of opening statements is to help the panel understand each party’s positions and what evidence they plan to provide. Most opening statements are five minutes or less.

You do not have to make an opening statement before you present your evidence. If you choose not to make one, this will not count against you.

Understanding Evidence

The panel’s decision will be based on the evidence the parties present to it. “Evidence” simply means the facts provided in a hearing. These facts form the basis for the panel’s decision. There are specific rules about what facts the panel can and cannot consider.

The panel can only rely on evidence that has been properly admitted during the hearing. This includes what witnesses say during testimony, documents that are entered as exhibits, and physical items that are given to the panel.

There is one important exception. The panel may also rely on facts that are so well known and widely accepted that they do not need to be proven at the hearing. This is called “judicial notice”. For example, the fact that February has 28 or 29 days is so commonly known that no party would need to prove it.

What is Acceptable Evidence?

For evidence to be accepted, three basic conditions must be met.

1. It must be relevant - that is, it must relate to an issue the Tribunal needs to decide.
2. The value of the evidence must be greater than any potential harm that would result from the panel receiving it. For example, a party may argue that evidence should not be received because it will cause harm by taking the hearing away from the main issues.
3. There must be no rule that prevents the panel from receiving the evidence. For example, hearsay (i.e. second-hand information) is generally excluded because it is unreliable, and the source of the information cannot be cross-examined.

Evidence takes different forms, including:

• testimony (spoken evidence) from witnesses such as the complainant, investigators, or experts;
• documents, like medical records, emails, or charts;
• other materials, such as photographs, videos, or physical objects.

If a party wants to use a document as part of their case, it must be shown to a witness who can identify it—that is, explain what the document is and how they know about it. The parties can also agree that some or all documents will be admitted without the need for a witness to identify them

Once a document is accepted by the panel, it is marked as an exhibit and becomes part of the official record of the hearing. Under Rule 2, exhibits are part of the public record. Therefore, you should take care when preparing documents to avoid including unnecessary personal or sensitive information.

Oral Evidence (Testimony) 

Following the opening statements, College counsel will present their case by calling their witnesses to give evidence. College counsel may, for instance, ask a witness to describe what happened or to explain a document.

Before testifying, all witnesses will be asked to make a solemn promise to tell the truth. They will also be asked to confirm that there is no one else in the room with them, that they will not communicate with anyone during their testimony, and that they will not look at documents or materials that have not been disclosed to the Tribunal. Please see the HPDT Witness Guide for more information.

Making Objections

You have the right to object to any question asked by College counsel if you believe it is not permitted by the rules of evidence. Some examples of objections are:

1. the question is about something irrelevant;
2. the question is being asked in a way that suggests the answer to the witness (this rule only applies in examination-in-chief); and
3. the question asks for hearsay information--that is, information that the witness does not know first-hand but has been told by someone else.

There are other reasons for objecting to questions. This summary of the process is not intended to cover all of them. 

If you have an objection to any question asked by College counsel, you should try to state your objection before the witness answers the question. Your objection should be directed to the Chair of the panel, not directly to College counsel or to the witness. Once you’ve raised an objection, the panel may ask that the witness be moved into a separate virtual breakout room while the objection is discussed.

If you object to a question, you need to explain why you object. The panel will decide whether the question is proper.

Objections can also be raised about the use of a documents. These objections are made in the same way as objections to questions.

Cross-Examination

After College counsel has finished questioning their witnesses, you have the right to cross-examine them by asking questions that you believe will assist in your defence. During cross-examination, you are allowed to ask leading questions (i.e. questions that suggest the answer). See Tips above.

Although you are not required to cross-examine a witness, you should if you plan to argue that the panel should not believe the witness’ evidence. 

If you plan to contradict a College witness’s version of what happened, you must tell the witness this during cross-examination and give them a chance to respond. For example, if a College witness testifies that it was raining and your witness will say it was sunny you must ask a question like: “Ms. X. will testify that it was sunny, not raining on that day. What is your response?”

When you are done your cross-examination, College counsel has the right to ask questions again. This is called “re-examination.” These questions can only relate to new issues that were raised in cross-examination. 

Members of the panel may also ask questions of the witnesses.

Presenting Your Evidence

Once the College has presented all its evidence, the panel will ask you to present your case. If you have not yet provided an opening statement, you can do so now.

When it is your turn to present your case, you can give evidence yourself, call other witnesses, and present your own documents.

Remember that unless both parties agree, a document can usually only be presented and used as an exhibit when a witness testifies that they created, sent, or received the document, or otherwise had first-hand contact with it, and can therefore identify it.

Any documents you want to give the panel should already be included in the Hearing Brief that you filed with the Tribunal before the hearing.

You should ask open-ended questions that allow your witnesses to provide evidence supporting the facts you need to prove. Your questions will be most effective if they are organized, focused, and directly related to the key issues in your case. It’s a good idea to prepare in advance by writing out and practising your questions.

Although the case management chair may make orders to help manage the hearing, including setting the order of witnesses (Rule 9.5.2 (e)), you generally get to decide which of your witnesses to call and in what order. There’s no fixed rule about how best to arrange the order of your witnesses. It depends on what you want the panel to understand and how each witness helps you explain your side of the story. However, it can be useful to present your case in the order that the events happened, and to call your witnesses in that same order.. For example, you might start with someone who can give background or set the scene.

Think about what each witness knows and how their evidence fits into your overall explanation of what happened. The order you choose can help the panel understand your case more clearly.

Testifying in Your Own Defence

You have the right to testify in your own defence, but you are not required to do so. If you do testify, then College counsel will be able to cross-examine you on your evidence. If you plan to testify, you can choose when to do so. While you do not have to testify, most registrants decide to do so in order to present the panel with their version of events.

When you testify, you will be required to promise that you will tell the truth. Following this, you should simply state the facts you want the panel to know. You do not need to ask questions to yourself. The College’s lawyer is allowed to cross-examine you on all relevant matters.

 After this, you can give evidence to reply to anything new that came up during your cross-examination. This isn’t the time to repeat what you’ve already said or to raise brand-new topics—it’s just an opportunity to clarify or reply to new points raised during cross-examination.

Objections by College Counsel

The College may object to any questions that you ask of a witness or evidence that you want to give. If College counsel makes an objection, they must state the reason for the objection. You will then have the right to explain to the panel why you say your question or expected evidence is proper. College counsel will then reply. The panel will decide whether the question or evidence is proper. If they decide it is not, the witness will not be permitted to answer your question, or you will not be permitted to give that evidence. 

Reply Evidence

After you have presented all of your evidence, the College is allowed to provide reply evidence. The right to provide reply evidence is very limited. The College can only provide evidence on issues that came out in your evidence that it did not expect. 

Closing Statements

After all the evidence has been presented, you and the College have the right to make closing statements. College counsel goes first, then you respond and then College counsel replies.

Like your opening statement, your closing statement is not evidence. It should be based on the evidence already presented to the panel, including witness testimony and documents. You can ask the panel to draw reasonable conclusions from that evidence and explain any legal or logical arguments that support your defence. You cannot provide new evidence during your closing statement.

Presenting Case Law

Previous decisions from the courts and the Tribunal can be presented during your closing statement. If you are representing yourself, researching past cases with facts similar to yours can be very helpful. A recent decision from the same or a similar tribunal that supports the outcome you’re asking for can help persuade the panel. You can also explain why the College’s cases are different from your situation. You can search for cases using the Canadian Legal Information Institute’s (CanLII) website , a comprehensive database of Canadian case law and legislation.

Deliberations

After the parties’ closing statements, the panel will discuss the case privately. These discussions are called “deliberations.” If the panel finds that the College has not proven any of the allegations against you, it will not be necessary to hear evidence and submissions on penalty. If the panel finds that the College has proven one or more of the allegations in the Notice of Hearing, the panel will hear evidence, if any, and submissions on the appropriate penalty at the penalty hearing.



 

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