5. What to Expect at the Hearing
GENERAL
The Pay Equity Hearings Tribunal is the adjudicative
branch of the Pay Equity Commission. It is a quasi-judicial administrative
tribunal with final and exclusive responsibility for hearing and determining
all disputes arising under the Pay Equity Act. The Tribunal's
processes and decisions are completely independent of the Pay Equity
Office which is the Commission's investigative and educational branch.
This Information Bulletin gives general information
about conducting a hearing before the Pay Equity Hearings Tribunal.
(See also Information Bulletin #1 "Making
an Application to the Pay Equity Hearings Tribunal"
and Information Bulletin #2 "Responding
to an Application to the Pay Equity Hearings Tribunal".)
Prepare and Plan
Think about how to present your case: what are the
facts that you need to prove to win and which witness should present
those facts. Think about the order of your presentation. What is the
most compelling way to tell your story?
By this point you should have all the documents you
need. If you require additional documents, request production from
the other party. No later than ten days before the start of the hearing
on the merits you must prepare a list of all documents on which you
intend to rely and provide it to the other parties. This list does
not need to be filed with the Tribunal.
Make four copies of all documents you intend to "introduce"
or put into evidence at the hearing (one for each member of the panel
and one for the witness). Make a copy for the other parties if they
do not already have one.
Interview your witnesses and decide whether you need
their evidence. Explain your case to the witness and why their testimony
is necessary. Review any documents that you want to introduce through
the witness (these will be documents which the witness either prepared
or received) with the witness. Have the witness tell you what happened
in her own words. Listen carefully, is anything missing? Do you know
things that contradict what the witness has said? Give the witness
an idea of what the opposing side may ask in cross-examination.
While it is proper to question your witness about inconsistencies
and missing points you cannot suggest answers or ask a witness to
lie for you.
If you need to summons a witness review the Tribunal's
Rules and the procedure for obtaining and serving a summons described
in Information Bulletins #1 and #2.
Think about your cross-examination of the opposing
side. What information do you need from the opposing witnesses? Identify
these points in advance so they are not forgotten if you get caught
up in the emotion of the evidence.
The Hearing
The hearing room is usually set up as a square. There
is a table for the panel at the top and tables for the parties along
the sides and bottom. The Chair of the panel sits between the Member
representative of employers and the Member representative of employees.
The Chair is usually addressed by name or as Madam Chair or Mr. Chair
and the Members by their names or as Member X.
Hearings are open to the public unless the panel
decides that matters of public security are involved or if it believes
that the open discussion of intimate personal or financial matters
would be damaging to any of the parties. Hearings are not recorded
and no transcript is produced.
The Chair begins the hearing by stating the name
and nature of the Application and introducing the panel. The Chair
then identifies the parties and their lawyers from the Appearances
sheet you have filled out. If there are no preliminary issues to be
decided (for example disputes about jurisdiction or outstanding production
issues), the Chair asks the parties to make opening statements. The
Respondent may decline to make an opening until the beginning of its
case.
Order of Proceeding
Usually the Applicant presents its evidence first
followed by the Respondents. Sometimes parties agree to a different
order of proceeding in advance of the hearing. In Applications alleging
a breach of ss.9(2) the Respondent always proceeds first because,
in those cases, the Respondent bears the burden of proof or "onus".
Opening Statements
A good opening gives the panel a roadmap to your
case. You need enough detail to let the panel know where you are going,
what you want when the hearing ends and why, and to describe the significant
points of interest on the way. BUT too much detail, especially about
facts, can be dangerous. For example, if you say that X will testify
that Y said Z would be fired because she'd made a pay equity complaint
and then X fails to say precisely that, or worse, says the opposite
the advantage to your opponent is obvious. Better to assert that Z
was fired for making a pay equity complaint and use you closing argument
to tie all the facts supporting that argument together from the testimony
that was actually given.
Dealing with Witnesses
Make sure your witnesses understand that they must
give their evidence on affirmation. That means that they must promise
before the panel to tell the truth.
Before the hearing the witness should be cautioned
about being argumentative or evasive. If the witness knows the answer
to a question, it should be given. If the witness does not understand
the question, she should say so. If the witness doesn’t know
the answer, she should not guess or offer an opinion although opposing
counsel may encourage it. If an objection is made during testimony
the witness should be instructed to remain silent until the panel
rules (occasionally the witness will be asked to leave the room while
this happens). Finally, the witness should "watch the pens".
The panel takes notes of the evidence and the witness needs to speak
slowly enough to allow them to record everything.
Examination-in-Chief/Direct
Examination
This is where your witnesses tell your story. It's
important to make the evidence flow clearly and logically and you
should plan your questions to assist the witness to do this. Have
a checklist to make sure all the essential points are covered.
Start by “introducing” the witness to
the panel. Ask questions that explain why this witness is able to
provide information relevant to the case: name, job, length of time
in the job, role on the pay equity committee etc.
Then go into to your case. As this is your witness
you may not ask “leading” questions: questions that suggest
an answer or assume a fact in dispute. The witness has to give the
evidence, not you. So, rather than saying “Please identify the
gender bias in the questionnaire” ask “Did you have objections
or concerns about the questionnaire?” Your questions should
be short and the answers should be long. If the witness has forgotten
a particular incident (and this happens in the stress of giving evidence)
you can ask, for example, if the witness recalls a meeting with the
pay equity committee on a particular date. If this type of open ended
inquiry doesn't help jog the witness' memory it is best to move on.
You may want to introduce documents through the witness.
Make sure you have confirmed that the witness is able to identify
the document before you introduce it at the hearing. Show the witness
the document and briefly describe it. "I'm showing you a memo
from X to you dated Y discussing skill shortages in the mechanic job
class. Do you recall receiving this document?" If the witness
agrees and there are no objections from the opposing party, ask the
Chair to mark the document as an exhibit. Write the exhibit number
on your copy. You will use the number to refer the panel to the exhibit
throughout the hearing.
Make notes of the witness' answers. You will want
to refer to them when you prepare your closing statement. You may
want to ask someone else to take notes for you.
Once you think you are finished ask the panel for
a couple of minutes to review your notes and checklist. Make sure
you have covered everything because you will not be allowed to recall
the witness once you conclude.
Now the opposing party begins its cross-examination.
Your job is to object to improper questions or questions which mischaracterize
the evidence given. You may not speak to the witness about the
case until cross-examination is completed. Be careful not to
put yourself or the witness in the position of having to respond to
an allegation that you broke this rule.
Re-Examination
Once cross-examination is complete you have the opportunity
to ask the witness questions about any new issues raised in the cross-examination.
You may not ask questions about matters you already dealt with in
chief. The purpose of re-exam is to give the witness the chance to
say everything she wants to say about a new issue (to put it into
context or add facts she was not permitted to discuss in cross) not
to rehabilitate the witness after an effective cross-examination.
In general, re-examination should be brief and to the point.
Questions from the Panel
At the end of the re-exam the Chair will ask the
Members if they have any questions for the witness. If these questions
raise new issues, which is extremely unlikely, the parties will have
the opportunity to question the witness about the new issue. Once
all questions have been answered the Chair will advise the witness
that he is excused and, if he was summonsed, that he is released from
the obligation to attend before the Tribunal.
Closing Your Case
When all your witnesses have testified, advise the
panel that you have completed or "closed your case” subject,
if your case was presented first, to the right to call reply evidence.
Cross-Examination
Listen carefully to the opposing side's opening statement
and cross-examinations of your witnesses. They provide you with clues
about what your opponent sees as the strengths and weaknesses of its
case and are useful to preparing your cross-examination. Then focus
on the witness as the evidence is given in chief. You need to think
about what the witness says and how it is said. Make notes to yourself
of the points in the testimony where you need to ask follow up questions
or where you need to challenge the witness. Try and read the witness:
is she neutral toward both sides or committed to the position of your
opponent; is he uncomfortable in the situation or very self-possessed?
These signals will help you decide on the tone of your questions.
The Tribunal is not television. In the real world
dramatic cross-examinations of the kind seen on Law and Order or Perry
Mason occur very rarely. Calling the witness a liar, finger pointing,
shouting, and table thumping rarely get you the answer you want or
impress the decision-maker. It may be hard, but keep your cool.
In general, try to ask questions which suggest the
answer and where that answer is a "yes” or a "no”.
The rules for questions on cross are the exact opposite of the rules
for chief. Avoid asking "why" or "what do you mean"
unless you are very certain what the answer will be. Do not ask questions
within a question or you won't be sure which question the witness
answered. On critical points devise a series of questions to lead
up to a key admission.
Finally, before you finish take a few minutes to
check your notes and the checklist of important points you made earlier.
If you have covered everything advise the Chair that you have no further
questions.
Reply Evidence
Where an opposing party raises issues that you were
unable to anticipate and address in your case you may call evidence
in reply. However, you may not use reply to "split your case"
and call evidence which you should have been presented in the first
place. Because of this rule reply evidence is rarely allowed.
Closing Argument
Start your submissions by giving the panel an outline
of what you plan to say. You will want review the issues in dispute,
the evidence, the applicable provisions of the Pay Equity Act,
any relevant Tribunal decisions or other legal decisions and the remedies
you are requesting. You can decide on the appropriate order. If the
panel asks you a question, do your best to answer it.
Some people feel more confident if they write out
their entire argument. Others prefer to work from an outline or points.
Whichever your preference, try to remain flexible and ready to respond
to the panel.
When you go through the evidence you need to highlight
the points which support your position and explain the points which
don't. Be fair to the evidence. Your arguments will be undermined
if you misstate or ignore critical pieces of evidence that do not
assist you. Where testimony is conflicting give reasons why the panel
should prefer the version that supports your position.
When discussing the legal authorities look for decisions
which are closest to your facts or issue. Have copies of the decisions
you will rely on ready for the panel and the other side. It is helpful
if you highlight any parts of the decision you want the panel to consider.
Try to distill the essential principle from the case. For example,
say “the Tribunal has repeatedly ruled that the employer has
breached ss.9(2) where anti-pay equity animus is even part of a decision
to terminate an employee" and then apply that principle to your
case. Be very careful not to overstate the legal principle. Where
there is any ambiguity about what a decision stands for address that
in your argument and suggest to the panel why your reading of the
decision is preferable. Decisions which don't support you but are
directly "on point" must be distinguished or you must explain
why the panel should not decide your case the same way.
Once you complete your closing invite questions from the panel.
Reply/Rebuttal
If you made your submissions first you will have
an opportunity to reply to any new arguments made by your opponent.
As with reply on the evidence, this is not an opportunity to shore
up your case or repeat yourself.
Common Objections and Evidence Problems
1. Relevance
Evidence which is not relevant to the issues in dispute
will not be "admitted" or considered by the panel. The test
is applied to all evidence: oral testimony, documents, expert's reports.
2. Hearsay
Hearsay occurs where witness X testifies that "Y
told me the work of the job class would be re-evaluated because its
point score was unusually low” and you want to rely on X’s
testimony to prove the truth of Y’s statement. While relevant,
X's testimony is suspect because Y can provide more reliable evidence
about what he actually said. However, if the statement is offered
to prove some other relevant fact - for example that X had notice
that the job class would be re-evaluated and what X understood to
be the reason for the re-evaluation - the hearsay exclusion does not
apply.
3. Privilege
A witness has the right to refuse to answer questions
that touch on matters subject to a statutory or common law privilege.
This includes any communications between a lawyer and client, doctor
and patient, spouses, and information about settlement discussions.
4. Business Records
Business records are inherently hearsay unless the
maker of the document is available to prove them. However the Ontario
Evidence Act allows their admission without proof if seven
days notice of the intention to rely on them is given to the other
party. Usually parties are able to agree on the admission of these
documents.
5. Rule in Browne v. Dunn
Although the approach to this rule is changing,
if you intend to introduce evidence through a witness that contradicts
the testimony of an opposing witness and questions their credibility,
those contradictions should be put to the opposing witness during
cross-examination. If you fail to do so, the panel may not allow you
to call the contradictory evidence through your witness.
6. Opinion/Speculation
Unless qualified as an expert, questions soliciting
a witness' opinion or asking about what a witness might do in a certain
situation are rarely relevant.
7. Expert Evidence
The Tribunal has considerable experience with expert
or opinion evidence. The panel will qualify an expert to testify before
it on a particular matter or range of matters. The expert's testimony
must then stay within those parameters. If the panel determines that
the proffered testimony is not helpful to it or goes entirely to a
matter within the expertise of the Tribunal it will decline to qualify
the expert.
8. Evidence of Review Officer/Review Services Proceeding
A Review Officer cannot be summoned to testify before
the Tribunal without the Tribunal's consent. That consent is only
granted in extraordinary circumstances. The Tribunal has ruled that
evidence about the Review Services process is rarely, if ever, relevant
to the determination of the workplace disputes before it.
