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2.2 Commencement of Proceedings
2.2.2 Role of Chairperson of the hearing
The chairperson is an essential component in accessible, informal and efficient proceedings. His or her role at the hearing is also very important: "The Chairman is the key person as it were, and only when he is present... may the Board of Referees . . . maintain its jurisdiction."296 Citation 296
On the day of the hearing, the chairperson must first check with the clerk whether all the preliminary formalities have been observed and whether the board is complete and the appellant and other persons summoned are present. Usually the chair will offer to record the proceedings.
So far this issue has posed some problems. It has already been held that the refusal to record the proceedings does not constitute a denial of a fair trial, that is, a denial of natural justice.297 Citation 297 However, the Supreme Court has ruled that "[e]ven in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a 'serious possibility' of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review".298 Citation 298 Our Act does not require that hearings be recorded, but the case law seems to encourage the chairperson to ask claimants if they want the hearing to be recorded. The case law indicates several advantages to this, including assurance of a fair hearing, respect for the principles of natural justice, and a complete record in case of an appeal.299 Citation 299 If there is no recording or if the tapes have been misplaced or destroyed or are defective, the appellant may obtain an order for a new hearing if it can be demonstrated that this failure limits his or her ability to exercise fully the right to appeal.300 Citation 300
The chairperson has the task of opening the hearing, chairing it and conducting its deliberations in such a way as to ensure that each of the parties involved has an opportunity to adequately make representations (s. R. 83(1)(i) Section 83(1)(i) of the Regulations). The chairperson is responsible for keeping order and has authority to decide questions of procedure (s. R. 80(7) Section 80(7)of the Regulations) in addition to the specific powers conferred by the Act and Regulations. "Procedure" applies to the application of the principles of natural justice and all events that may occur during a hearing.301 Citation 301
The chairperson of an administrative tribunal is normally expected to make the usual introductions, state the role of the tribunal and set out the subject of the proceedings; he or she may even summarize the claims of the parties as they appear in the docket.
At the outset the chairperson must check whether only those persons who are authorized to attend are present in the room. This measure is not based on the Act or the Regulations but on the Benefit Manual (c. 13) and the Board of Referees' Manual. The following are entitled to participate in or attend a hearing: the claimant, the employer, any other person who appeals, any representative of theirs, any official designated by the Commission, any legal representative of the Commission, any other person who may be affected by the Commission's decision and any witness.
Neither the chairperson nor the board has the power to compel the attendance of witnesses or require people to produce documents; they may invite them to do so.302 Citation 302 Under certain circumstances, where the evidence is contradictory, the chairperson should take the initiative in this respect.303 Citation 303 The chairperson's power to request that someone attend a hearing should not be confused with the power to compel a witness.
If it becomes apparent at the hearing that the case differs greatly from how it appears in the record or that important questions have not been investigated, the chairperson may use the power under s. R. 82 Section 82 of the Regulations to ask the Commission to investigate any question related to the case.