Administrative Law: Principles and Advocacy, 4th Edition

CHAPTER 11
Presenting Evidence at a Hearing

Emond
Copyright Montgomery
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Emond Montgomery Publications. All rights reserved.
 Administrative Law: Principles and Advocacy, 4th Edition 2

Differences in the Use of

Information by Departments,
Agencies, and Tribunals
Departments and agencies
• Official may receive any information in any form

• Jurisdiction protects against use of inappropriate

information
• No legal requirement for advance screening

• No formal, systemic way to test relevance &

reliability of information used to make a decision
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 Administrative Law: Principles and Advocacy, 4th Edition 3

Differences in the Use of

Information by Departments,
Agencies, and Tribunals (cont’d)
Tribunals
• Requirements differ between tribunals

• Decisions must be based on reliable/relevant

information

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 Administrative Law: Principles and Advocacy, 4th Edition 4

What is Evidence?
Evidence: Information that a party wishes to use
to prove or disprove a contention or allegation

• Relevant evidence: Evidence that is useful in

answering question that tribunal must address
Evidence is admissible if it is relevant and: it
appears to be reliable; it is necessary to prove a
point; and receiving it seems fair to the other
parties
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 Administrative Law: Principles and Advocacy, 4th Edition 5

Determining Admissibility

• Admissible evidence: Information a court or

tribunal may consider
• Admissibility determined by rules of evidence

Court rules of evidence based on four fundamental

principles. To be admissible, evidence must be: (1)
relevant; (2) reliable; (3) necessary; and (4) fair

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 Administrative Law: Principles and Advocacy, 4th Edition 6

Determining Admissibility (cont’d)

Tribunal has two options in treatment of evidence:

• listen to wide range of information without

preliminary screening and use selected parts to
make a decision (unlike courts); or
• limit the information the tribunal will hear (like
courts)
In practice, many tribunals use both approaches

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 Administrative Law: Principles and Advocacy, 4th Edition 7

Determining Admissibility (cont’d)

Alternative process of review & selection—4 steps:

• Step 1: Determine whether information is relevant

• Step 2: Determine whether information is reliable

• Step 3: Determine whether information is

necessary
• Step 4: Determine if it would be fair to hear the
evidence (considers probative value, privilege)
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 Administrative Law: Principles and Advocacy, 4th Edition 8

Reliability of Evidence
Reliability of evidence measured on 5 dimensions:

• Means by which information was obtained

• Witnesses’ motivation

• How much specialized knowledge is needed to

interpret
• How well the evidence points to fact to be proved

• The degree of corroboration

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 Administrative Law: Principles and Advocacy, 4th Edition 9

Reliability of Evidence (cont’d)

• Degree of reliability of evidence determines its
weight
• Direct evidence: Given by a person who
observed the occurrence of the event
• Circumstantial evidence: Evidence of
circumstances that suggest the manner in which
the event occurred

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 Administrative Law: Principles and Advocacy, 4th Edition 10

Reliability of Evidence (cont’d)

Types of evidence excluded as inherently

unreliable or because reliability cannot be
demonstrated through methods available to court:
• Opinion evidence: product of witness’s belief or
conclusion of fact, rather than of direct
observation
• Hearsay evidence: statements made by
someone unavailable for cross-exam
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 Administrative Law: Principles and Advocacy, 4th Edition 11

Reliability of Evidence (cont’d)

• Expert witness: a person who understands

subject on which they are testifying better than
the general public
• Qualification hearing: held by court before
deciding whether to permit expert to give
Two obligations of expert witness: (1) Should only
testify in areas where their evidence is needed; (2)
Must participate as an independent professional
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 12

Reliability of Evidence (cont’d)

• Expert evidence: Opinions that are needed by

adjudicator who lacks specialized knowledge
• Physical evidence: Includes test results,
documents, photos, video recordings, etc.
• Integrity of test results usually established by
chain of custody (continuity of possession)
• Adjudicator determines reliability of evidence by
weighing the evidence and assessing credibility
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Reliability of Evidence (cont’d)

• Adjudicators must determine which evidence is
more likely to be accurate
Factors going to credibility include: opportunities of
different witnesses to witness the events; prior
knowledge of the witness; demeanour (outward
behaviour) of witness; consistency of the witness’s
statements

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 Administrative Law: Principles and Advocacy, 4th Edition 14

Privileged Information
• Privileged information: Information that may be
relevant but is protected from disclosure to
protect a relationship of confidentiality
Federal & provincial freedom of information and
privacy acts—fundamental purposes: (1) to require
governments to provide non-confidential
information; and (2) to ensure governments do not
release private info without person’s consent

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 Administrative Law: Principles and Advocacy, 4th Edition 15

Presenting Evidence

Order of presentation:
• Initiating party calls witnesses first, followed by
respondent
• 1st party gives rebuttal or reply evidence

• Surrebuttal (rarely permitted)

• Swearing in the witness— adjudicators, court

reporters, tribunal staff administer an oath

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 Administrative Law: Principles and Advocacy, 4th Edition 16

Presenting Evidence (cont’d)

Order of presentation (cont’d):

• Witness examination—Examination-in-chief or
direct examination; Cross-examination (cross-
questioning); Re-examination
• Witness panel: Format used in proceeding to
permit simultaneous examination and cross-
examination of two or more witnesses
• (See feature box in text, “Hot-Tubbing”)
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 Administrative Law: Principles and Advocacy, 4th Edition 17

Presenting Evidence (cont’d)

Common grounds for objecting to questions:
• Information does not meet admissibility criteria

• Question repetitive or stated in bullying manner

• Answer would be unreliable

• Answer outside witness’s knowledge

• Expert witness gives opinions outside expertise

• Examiner is asking leading questions

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 Administrative Law: Principles and Advocacy, 4th Edition 18

Presenting Evidence (cont’d)

Keeping track of documentary and physical

evidence includes:
• Marking documents & objects as exhibits

• Taking a view or site visit by adjudicator or

other participants in proceeding for purpose
of examining immovable evidence that is
under dispute
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