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.