AN INTRODUCTION TO TRIBUNAL PROCEEDINGS

 

3. Evidence Before the Board

Although the Supreme Court (Université du Québec à Trois-Rivières) has recognized that "the principle of the independence of administrative procedure and evidence" is broadly accepted, it "has never had the effect of limiting the obligation on administrative tribunals to observe the requirements of natural justice." For example, there is a clean line of cases confirming that a refusal to admit admissible and relevant evidence is a violation of natural justice tantamount to refusing to exercise jurisdiction.

Administrative tribunals have the power to make decisions on the relevance and admissibility of evidence. For example, they may refuse to admit testimony or documentary evidence based on an objection or on their own motion. They may rule on objections immediately or admit the evidence under advisement, as it is riskier to refuse to admit evidence whose relevance is being challenged than to allow it subject to rejecting it in the final decision. It is generally not a denial of natural justice to take an objection under advisement.

The case law has established that tribunals must offer each party an equal opportunity to make its case in terms of presenting witnesses or documentary evidence. Each party must have an equal opportunity to produce evidence and make submissions. By way of illustration, a tribunal cannot refuse to admit the evidence of a party to punish that party for a delay. A tribunal cannot admit evidence unbeknownst to the other party, such as after the hearing has ended or before it has begun. If a tribunal admits one party's evidence, it must always allow the other to submit relevant evidence to contradict it.

Theoretically, due to the principle of the independence of administrative evidence and procedure, civil and criminal evidentiary rules do not apply to administrative tribunals.

A distinction is made between direct and indirect evidence. The former is evidence in which the means used (testimony, writing, thing, confession) is in close link with the proof sought. The latter is evidence whereby, on the basis of the methods used, the proof sought may be inferred. Common types of indirect evidence are hearsay, circumstantial evidence, proof of similar facts and presumption of fact. Circumstantial evidence is evidence whereby indicia as to time, location or persons, may be used to infer the existence of a fact or occurrence of an event.

 

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