Dispelling the Myth of the Kangaroo Court - Analyzing the Admission of Hearsay Evidence before Administrative Tribunals

Every lawyer who practices in administrative law has surely heard the warning that the tribunal at which they are about to appear is a “kangaroo court” – a disparaging remark used to describe a tribunal that lacks structure and rules, willing to admit any evidence, far outside the rigours of the civil court system.

Hearsay, an out-of-court statement being offered for the truth of its contents, is generally inadmissible in court. There are exceptions under the Evidence Act, R.S.O. 1990, c. E.23[1] and at common law, and necessary and reliable hearsay evidence can be admitted, with appropriate weight then given to it.[2]

In the administrative law context, administrative tribunals have the power to control their own processes, and are governed by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which establishes procedural rules that apply to administrative tribunals in Ontario.

Armed with the SPPA, various tribunal rules and the data available through publicly reported decisions on CanLII, I sought to assess the validity of this criticism, to determine how hearsay evidence is treated at five of Ontario’s tribunals. 

For the purposes of this article, I have compared the rules and data with regard to:

1. The Consent and Capacity Board (the “CCB”);
2. The Ontario Physicians and Surgeons Discipline Tribunal (the “OPSDT”);
3. The Law Society Tribunal;
4. The Ontario Land Tribunal (the “OLT”); and
5. The Ontario College of Teachers Discipline Committee (the “OCTDC”).

A review of the intended purposes, functions, and statutory authority of these bodies is contained in Appendix A.

The Rules

Two sources of legislation primarily apply to admission of hearsay in administrative tribunals: the SPPA, and the rules of practice and procedure for each of the individual tribunals.

Section 15 of the SPPA provides that a tribunal may admit as evidence, whether admissible as evidence in a court, any oral testimony or document or other thing relevant to the subject matter of the proceeding.

Section 15 of the SPPA, however, is further modified by the individual tribunals’ rules of practice.

Rule 1.2 of the CCB’s Rules of Practice, in an apparent adoption of section 15 of the SPPA, provides that its rules are to be read in conjunction with the SPPA. There are no further limitations on the admission and use of hearsay before the CCB.

In contrast, the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991 c. 18 (the “Code”) which applies to the OPSDT, expressly deviates from the SPPA. Section 49 of the Code provides:

Admissibility of evidence

49 Despite the Statutory Powers Procedure Act, nothing is admissible at a hearing that would be inadmissible in a court in a civil action and the findings of a panel shall be based exclusively on evidence admitted before it.

Similarly, the Law Society Tribunal Rules of Practice and Procedure provide at Rule 11.7 that “the rules of evidence applicable in civil proceedings apply in Tribunal proceedings, except where these rules provide otherwise”. Subsection (3) provides a unique carve out, stating that Sections 15(1) and (2) of the SPPA apply to the admission of evidence in interlocutory suspension or restriction motions, being motions that are heard on a tight timeline, considering whether a member ought to be restricted or suspended while awaiting the more fulsome and formal hearing.

While the OLT’s Rules of Practice and Procedure are silent on the admissibility of hearsay, Rule 1.4 provides that for matters dealt with in the Rules, the tribunal may make orders and direct practices and procedures that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding, and may exercise any of its under powers under, among other acts, the SPPA.

Finally, while the Ontario College of Teachers’ Rules of Procedure does not have a specific rule on the admissibility of hearing, its Form 6A – Pre-Hearing Conference Memorandum specifically contemplates parties relying on hearsay at a proceeding. Section 13 asks:

13. On the subject of hearsay evidence and prior testimonial statements: − Will you be seeking to introduce hearsay evidence or prior testimonial statements of any person who you do not intend to call as a witness at the hearing of the merits of the allegations? − If so, identify the maker of such evidence/statements and the circumstances in which they were made. − Do you intend to oppose the admission of such evidence/statements tendered by the party opposite and/or to apply for an order requiring the maker of such evidence/statements to be produced for the purpose of cross-examination at the hearing of the merits of the allegations and if so, on what grounds?

The Data

For each of the five tribunals analyzed, decisions are publicly available on CanLII. In an exercise of rough justice, I have searched how often the term “hearsay” appears at each tribunal. However imprecise this search may be, the results are nonetheless telling:

Of the 12,075 CCB decisions on CanLII, 9,316 cases mentioned hearsay, and in only approximately 100 of those cases, observed through key word searches and manual review, did the tribunal elect to give the evidence at issue no weight whatsoever. Instead, the overwhelming majority of hearsay evidence tendered at the tribunal was admitted. The rationale for doing so is best described in X(Re), 2003 CanLII 54102:

The Board acknowledges Mr. Walters’ submission that much of Dr. Burdett’s evidence was hearsay and that the Board ought not put undue influence on hearsay evidence. The Board however also recognizes that given the short time periods mandated by legislation in an involuntary status application, and other important considerations, it is sometimes necessary for the doctor to build part of her or his case based on hearsay evidence. [3] [emphasis added]

By virtue of the exceptionally short time under which the CCB must hear and decide a matter, and given the subject matter of physicians relying on information to make time sensitive decisions, the admission of hearsay evidence is frequently necessary.

On the other end of this spectrum is the OLT, which takes a hand-off approach to hearsay. Of the 6,361 reported decisions, only 19 cases mention hearsay, with an even split between hearsay evidence that was not admitted, and hearsay evidence that was admitted but given appropriate weight. The OLT’s approach to hearsay was summarized in IAMGOLD Corporation v. Treelawn Capital Corp. and Wood Family Wealth, 2022 CanLII 109894, in which the tribunal held:

As it may, under the legislated softening of procedural and evidentiary requirements under section 15(1) of the SPPA, the Tribunal will often seek to avoid becoming too heavily embroiled in the strictures of rigid evidentiary rules, and take a more principled and streamlined approach when accepting evidence and documents, and then weigh that evidence when trying to get to the bottom line in the complexities of a mining dispute such as this one. [emphasis added][4]

The other three discipline tribunals analysed each considered hearsay in relatively similar proportions. The term “hearsay” arose at the OPSDT in 2% of its reported cases, and in 3% of reported cases at the Law Society of Ontario Tribunal and the Ontario College of Teachers’ Discipline Committee respectively.

How each of those three discipline tribunals treat hearsay is unique to the disputes that arise before each tribunal.

Seemingly because of the quasi-criminal nature of the disputes before it, the OPSDT takes an approach most similar to the civil court system. As held by the tribunal in Ontario (College of Physicians and Surgeons of Ontario) v. Pilarski, 2016 ONCPSD 41:

The Committee is bound by the rules of evidence and, absent consent of the parties, cannot admit hearsay statements.[5]

Similar discipline allegations arise at the Law Society Tribunal, and the overwhelming majority of cases considering hearsay at the Law Society Tribunal (109 of 132) were interlocutory and suspension motions which, under the Rules of Practice, expressly permit the admission of hearsay evidence. One can surmise that the rationale for doing so is that these interim motions often occur quickly, and given the Law Society’s mandate to protect the public, imperfect evidence may be necessary to ensure interim public protection. To disallow hearsay evidence at the interim stage could lead to bad actors continuing to practice law by virtue of too strict a reliance of rules of evidence.

At the Ontario College of Teachers’ Discipline Tribunal, of the 65 cases in which hearsay is mentioned, in 42 of those cases the tribunal accepted the hearsay evidence at issue. This is seemingly because of the dynamic at issue. Witnesses to teachers’ misconduct are almost exclusively their students. To disallow hearsay evidence would require that minor students be called as witnesses, which is a practice that likely no party would welcome, given the inherent difficultly in effectively cross examining a vulnerable, young (and often sympathetic) student. Instead, it appears to be in the interest of all parties, and good public policy, to rely on hearsay evidence in these disputes.

What Does this Mean?

While the SPPA may provide general guidance, what this review shows is that by virtue of the specialized knowledge of each of these tribunals, they will apply the rules respecting hearsay in a manner appropriate to the unique facts that appear before them.

Parties should take comfort in knowing that each tribunal appears to be attuned to the individual issues and complexities of the cases that come before it, while also recognizing that, without a uniform rule, one must review the general practices of each court to understand whether and why hearsay evidence is admitted at each tribunal.

Tribunals do not “let everything in” or ignore the rules of evidence without justification.

Kangaroo courts they are not.

Appendix A – Tribunals Considered

Consent and Capacity Board (“CCB”): a tribunal operating under the authority of the Health Care Consent Act, which makes decisions under that and several other Acts, including the Mental Health Act, the Substitute Decision Act, the Personal Health Information Protection Act, the Child Youth and Family Services Act and the Mandatory Blood Testing Act.[6]

Hearings are held virtually, and consist of panels of 1, 3 or 5 members, who are a combination of legal, medical and public members.[7]

As the Board is often called on to make decisions regarding real-time medical care, the Board operates with unique expediency, holding hearings within seven days of an application, with decisions issued within one day of the conclusion of a hearing.[8]

Ontario Physicians and Surgeons Discipline Tribunal (“OPSDT”): an administrative tribunal adjudicating allegations of professional misconduct or incompetence of Ontario physicians.[9] Allegations are brought forward by the College of Physicians and Surgeons of Ontario. Discipline decisions before the OPSDT often involve quasi-criminal allegations including sexual misconduct and fraud. The OPSDT has the power, among other things, to suspend or revoke a physicians’ license to practice.

Hearings are held virtually or in person, and the 5 member panel includes medical, legal and public members.[10]

The OPSDT is part of a group of tribunals called the Health Professions Discipline Tribunals, which holds discipline and fitness to practice hearings for several health colleges in Ontario using the same set of rules and processes.

Law Society Tribunal: operating under the Law Society Act, R.S.O. 1990, c.L.8, panels of 1, 3 or 5 members, consisting of benchers, lawyers, paralegals or lay people consider matters of capacity, conduct and character as between the Law Society of Ontario and lawyers, licensees and paralegals.[11]

The tribunal consists of both a hearing and appeal division.

Ontario Land Tribunal (“OLT”): a tribunal operating virtually which considers matters related to land use planning, environmental and natural features, heritage protection, land valuation, land compensation and municipal finance.[12]

The OLT operates under the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched 6, while also exercising powers under specialized acts including the Planning Act and the Expropriations Act.

The OLT hears appeals and applications on zoning, official plans, development charges, heritage protection and land compensation.

Ontario College of Teachers Discipline Committee: a three-member panel consisting of public members, current and former teachers and principals and those with adjudication experience, who hear and determine allegations or professional misconduct or incompetence by Ontario teachers.

Allegations are brought by the College of Teachers, and the Committee has the power, under the Ontario College of Teachers Act, 1996, S.O. 1996, c 12 to revoke, suspend or issue conditions or limitations on a member’s license.[13]

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.