CHAPTER 3

EVIDENCE

3.6 Disclosure of evidence

Disclosure encompasses two situations. The first, commonly encountered in administrative law, is when a tribunal divulges the record before it to comply fully with the audi alteram partem rule. The second involves the disclosure of evidence between parties.

The audi alteram partem rule normally requires tribunals to disclose all the exhibits in the docket and all the evidence in their possession, including documents and reports. Parties are generally entitled to everything they need to present their case or defence.⁴⁹⁴ This includes the record sent by the Commission and any document filed with the board by someone else.⁴⁹⁵

If the chairperson realizes that the docket is not complete or if at the hearing the chairperson is informed that an important item is missing or has not been disclosed, he or she must take the required action, including adjourning the proceedings if necessary.

Some administrative tribunals may not have to disclose everything. Evidence that a party has given on a confidential basis is one of the types of evidence that may be excluded.⁴⁹⁶ We doubt this could happen before boards of referees, which obtain documents only from the Commission, employers or claimants. It is unlikely any of these parties could claim confidentiality. For example, natural justice was held to have been denied where a chairperson obtained a purportedly confidential Commission directive and the claimant had to resort to the Access to Information Act to obtain it.⁴⁹⁷

There is no requirement in administrative law that a party disclose information to the other parties if he or she does not intend to tender it and the tribunal will therefore not be considering it.⁴⁹⁸

If a party intends to submit evidence, must he or she disclose it in advance to the other party as required in criminal cases by the famous 1991 Supreme Court decision in Stinchcombe?⁴⁹⁹ This duty of disclosure is based on the principles of fundamental justice guaranteed by s. 7 of the Charter. Certain cases have applied these principles to administrative tribunals, notably in disciplinary matters.⁵⁰⁰

In accusatory or similar justice systems, the prosecutor must disclose all relevant evidence in its possession to the defence, whether it tends to incriminate or exculpate the accused, unless it is evidence over which the prosecutor has no control, is patently irrelevant or is privileged.

Natural justice may require Stinchcombe disclosure where a person is alleged to have engaged in serious misconduct involving moral turpitude.⁵⁰¹ This may include cases in which claimants are suspected of fraud and might face a penalty, or cases where the employer is claiming that the claimant was dismissed for misconduct. Serious cases therefore require such disclosure in quasi-judicial cases given the circumstances. In such cases, the claimant is entitled to make full answer and defence against accusations, and must be sufficiently informed of the nature and basis of such accusations.

The case law in employment insurance adjudication is demanding of the Commission: the Commission must provide the board with a complete docket, including its correspondence with the claimant.⁵⁰² The Commission must also turn over a copy of all circulars and administrative documents that are germane to the proceedings, even if they are internal government documents.⁵⁰³ Moreover, under the case law, the Commission's submissions must include both cases in favour of its position and those against it⁵⁰⁴ - a requirement based on the fact that claimants are rarely represented by counsel and do not have access to free legal services.⁵⁰⁵

If an employer or any other person sends documents to the board, those documents must be given to the claimant and the claimant must be given enough time to review them.⁵⁰⁶ A claimant who is taken by surprise by the filing of a document may be entitled to an adjournment.⁵⁰⁷

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