Preparing Your Case

Most people who appear before the Tribunal find that they are more comfortable and make a better presentation if they take the time to organize their information, documents and witnesses beforehand. It may be useful to write down the points that you wish to cover or draft a brief summary of what your case is about, to refer to or read to the Tribunal panel at the hearing.

When you first speak to the Tribunal in your opening statement, you should tell the Tribunal what you want it to do, i.e. what decision you would like it to make and the evidence you will show to support that decision.

You should start thinking about how you are going to present your case as soon as possible, as the Tribunal can make orders regarding witnesses and disclosure at a Pre-Hearing Conference and at motions, which are generally held well before the case is heard.

Do not assume that the Tribunal panel has any prior knowledge about your case, your operation or the way your industry operates. Remember also that any material you filed with the Tribunal prior to your hearing does not become evidence in your case until it is submitted as evidence during the hearing. It is best to provide a full picture of your situation to the Tribunal panel so that it has a full understanding of your circumstances and what it is that you are requesting.

To prepare for your hearing you first you should be aware of what the Tribunal does and its processes. It is important to check the appropriate provincial legislation which relate to your appeal. You may also want to read related regulations, the Tribunal’s Rules of Procedure and review the Tribunal’s website to help you prepare.

You will need to present evidence to support your case at the hearing. Evidence can be anything you think will help support your claims. Some examples of evidence include:

your testimony
photos
documents
witness testimony

You should make every effort to substantiate any facts or statements that you present to the Tribunal. It is best to present the Tribunal with first-hand knowledge or evidence whenever possible. If you are relying on information that someone else has told you, bring the person who has direct knowledge of that information to testify.

Make sure that you provide copies of your documents that you are going to seek to have entered as evidence to all parties and to the Tribunal before the hearing.

At the end of the hearing, you will make a closing argument that reminds the Tribunal what decision you would like it to make and summarize why the Tribunal should agree with your position. It is a good idea to summarize your evidence and that of the other parties and state why your evidence should be accepted by the Tribunal.

It is helpful for the respondent and appellant to discuss the case before coming to the Tribunal to determine which issues they agree can be resolved and which issues the Tribunal must rule on.

Documents You Plan to Use at Your Hearing

If you have documents that support the case that you are making to the Tribunal, including copies of correspondence, business records, photographs and the like, the Notice of Hearing directs that the parties deliver to each other one copy of all relevant documentary evidence and other materials of any kind whatsoever intended to be filed at the hearing. The Notice of Hearing also directs that a specified number of copies be delivered to the Tribunal by a certain date.

These documents are normally entered as exhibits in the hearing and are kept by the Tribunal, so make sure you have a copy for yourself that you can take away with you after the hearing. If you bring additional documents to the hearing, be sure you have enough copies for the Tribunal and the other parties to the hearing. Note that any documents not disclosed prior to the Hearing may not be accepted by the Tribunal.

Organizing Your Materials

Any documents or other materials you submit to the Tribunal must be organized and labeled in such a way that they can be easily distributed to the panel and identified during the Hearing. Follow these tips to organize your materials:

Number each page of a multi-paged document for ease of reference.
Ensure photographs are date-stamped, time-stamped, indicate location, orientation and any other relevant factors (i.e., after a heavy rainfall, during drought, etc.).
Collate your documents so that each package to be distributed to the Tribunal contains your documents in the order you intend to refer to them during the hearing.
If you plan to present video or sound evidence, make sure you advise the Tribunal of the equipment you will require to present your evidence to the panel.

Expert Evidence

If you are submitting expert evidence to the Tribunal, either in person or by expert report, tell the other parties before the hearing date and provide them with the expert opinion so they can adequately respond at the hearing without the need to ask for an adjournment.

You will also need to provide a copy of your expert’s resume to the Tribunal and to the other parties. A signed “Acknowledgement of Expert’s Duty” form (Form 53 on the Central Forms Repository) must also be provided. This form outlines the duty of every expert witness to provide opinion evidence that only relates to matters within their area of expertise and that is fair, objective and non-partisan. Experts must provide assistance to the Tribunal where such assistance is reasonably required to determine a matter at issue. This duty prevails over any obligation owed by the expert to the party that retained them.

Delivering your Documents to the Tribunal

For matters under the Drainage Act, parties are required to deliver all material to the Clerk of the Municipality who then forwards the material directly to the Tribunal.

For all other matters, you will need to give several copies of your documents directly to the Tribunal in addition to serving copies to the other parties in your matter. Parties must deliver a specified number of hard copies of their materials to the Tribunal. Therefore, per Rule 12.08 of the Tribunal’s Rules of Procedure, while documents and other materials can initially be filed with the Tribunal via fax or email, hard copies must follow within 48 hours.

Parties may send their materials to the Tribunal via post or courier to the following address:

Agriculture, Food and Rural Affairs Appeal Tribunal
1 Stone Road West, 2^nd Floor NW
Guelph, Ontario N1G 4Y2

Materials can also be hand-delivered to the above-noted address between the hours of 8:00 a.m. and 5:00 p.m. Monday to Friday or to the Shipping and Receiving department located on the first floor, NE between the hours of 8:00 a.m. and 4:15 p.m. Monday to Friday. Anyone attending to drop off materials in-person is encouraged to call the Tribunal ahead of time to ensure that a staff member will be present to accept the package.

Please note that the building located at 1 Stone Road is a secure building and members of the public do not have access to the Tribunal offices, nor will materials be accepted by personnel at the Security and Information desk if Tribunal staff are unavailable and the Shipping and Receiving department is closed.

Also note that the “due date” indicated in the Notice of Hearing or order, is the date by which materials must be received by the Tribunal, not the date by which they must be placed in the mail. Parties who are sending materials by mail must ensure that they allow adequate time for the materials to be delivered to the Tribunal before the due date. Late materials may not be accepted during the hearing.

Adjournments

If you need more time to prepare your case or will not be able to attend your hearing, you can ask that the Tribunal grant an adjournment in your matter. An adjournment is essentially a rescheduling of a hearing to a later date. When a matter is adjourned on short notice, it can cause wasted time and money for other parties. Requests for adjournment should therefore be made as soon as possible. You will need to bring a motion for an adjournment. The Tribunal can provide guidance as to whether a written, teleconference or in-person motion hearing will be held.

When seeking an adjournment, it is a good idea to ask the opposing party’s consent to adjourn the hearing to a later date. Contact the opposing party, explain your situation, and ask that he or she consent to adjourning the matter. If the opposing party agrees, you should each write to the Tribunal Coordinator expressing that you consent to an adjournment, and how long you consent to the hearing being adjourned. There is a greater chance that the Tribunal will grant your request if there is consent from the opposing party.

If the opposing party will not consent to an adjournment, write to the Tribunal Coordinator asking that your hearing be adjourned. Directions will be provided as to whether your motion for an adjournment will be heard in person or if it will be determined in writing. You should include in your motion materials details of the reason you are seeking the adjournment and how much more time you will need to move forward with your case. If an adjournment is granted, each party will be notified of the decision and will receive an Amended Notice of Hearing with the new hearing date(s).

Note that unless the Tribunal orders otherwise, adjourning the hearing date does not change the dates on which documents are due to be served and filed. Also note that there may be costs consequences for motions for adjournments that could have been made earlier.

Summons to Witness

There are times when a person who has evidence that will benefit your case is unwilling to testify or is unable to provide evidence to the Tribunal without having been “summonsed”. If one of your witnesses must be summonsed, or if you need to compel an unwilling witness to testify, you can ask the Tribunal to issue a document known as a “summons”.

The Tribunal’s Rules of Procedure deal with summonses in Rule 23, “Compelling Attendance of Witnesses”:

23.01 By Summons to witness

A party who requires the attendance of a person as a witness at a hearing may serve the person with a summons to witness requiring him or her to attend the hearing at the time and place stated in the summons, and the summons may also require the person to produce at the hearing the documents or other things in his or her possession, control or power relating to the matters in question in the appeal that are specified in the summons.

23.02 Summons Request

On the request of a party or a solicitor or agent representing a party, the chair or a vice-chair of the Tribunal may sign and issue, or in the case of urgency, the Tribunal Coordinator may sign and issue, a summons to witness. Before the summons is signed, the party or solicitor or agent shall complete the summons and include the name of the witness. See “Form 1 – Summons” form, which can be found on the Ontario Central Forms Repository.

23.03 Service and attendance money

A party requesting a summons to witness shall arrange for personal service of the summons on the witness and, at the time of service, attendance money in the amount provided under the Rules of Civil Procedure shall be paid or tendered to the witness.

23.04 Affidavit of Service Required

An affidavit proving the service of the summons on the witness shall be filed with the Tribunal.

Steps for obtaining a summons are as follows:

If you require a witness to be summonsed to testify on your behalf, you must fill in a “Form 1 – Summons” form, which can be found on the Ontario Central Forms Repository.
Send the completed “Form 1 – Summons” form to the Tribunal.
The Tribunal will issue the summons where appropriate and will send the issued summons to the party who has requested the summons.
The party who has requested the summons is responsible for personally serving the summons on the person summonsed. The person who serves the summons should note the time, date, and location where the witness was served with the summons.
The party who has requested the summons is responsible for paying the required fees and allowances. Note that Rule 34.04(5) of the Rules of Civil Procedure made under the Courts of Justice Act state that fees are to be paid according to Tariff A of the Rules of Civil Procedure. Tariff A sets out the fees to be paid to a summonsed witness as follows:
1. Attendance allowance for each day of necessary attendance: $50.
2. Travel allowance, where the hearing or examination is held, a) in a city or town in which the witness resides, $3.00 for each day of necessary attendance; b) within 300 kilometres of where the witness resides, 24¢ a kilometre each way between his or her residence and the place of hearing or examination; c) more than 300 kilometres from where the witness resides, the minimum return air fare plus 24¢ a kilometre each way from his or her residence to the airport and from the airport to the place of hearing or examination.
3. Overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay: $75.

The Rules of Civil Procedure can be accessed online at https://www.ontario.ca/laws/regulation/900194 .

Written Notice of Constitutional Question

If you are a party to an appeal and you intend to raise a question about the constitutional validity or applicability of legislation, a regulation or by-law made under legislation, or a rule of common law, or where you claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms, you must file a written notice with the Tribunal and serve it on the Attorney General of Canada and the Attorney General of Ontario.

The Notice of Constitutional Question must contain the following information:

a detailed explanation of the constitutional question raised, including the material facts applicable to your situation;
the constitutional provisions relied upon, or the legal basis for the argument, identifying the nature of the constitutional principles to be argued; and
the remedy you are seeking.

Procedure for Requesting Party or Participant Status

Anyone who wishes to be named as a Party or Participant must file a motion with the Tribunal and serve it on the other parties as per Rule 8. The motion should contain the following information:

whether the person is seeking Party or Participant status;
a statement of the issues and material facts relevant to the subject matter of the appeal that the person intends to present at the main Hearing; and
whether
- the person’s participation is likely to make a relevant contribution to the Tribunal’s determination of the issue at hand;
- the person’s interests may be directly and substantially affected by the Hearing or its result;
- the person has a genuine interest, whether public or private, in the subject matter of the proceeding.

Upon receiving a written request to be named as a Party or Participant, the Tribunal Coordinator will set a time and location for a motion hearing to determine whether the requestor will be named as a Party or a Participant to the proceeding. Alternately, the matter may be determined entirely in writing on the Tribunal’s direction.

Representatives

A party to a proceeding before the Tribunal is entitled to be represented by a representative and/or a spokesperson. A person is a spokesperson when he or she is one of a group of applicants, respondents, or other party and is speaking on behalf of the group party. A person is a representative when he or she is presenting the case of a party or group party without being a party themselves. A lawyer or paralegal who presents the case of a party, for example, is a representative.

A party may change his or her representative during the proceedings; however, a change in representation should not unduly delay the proceedings. Furthermore, parties are expected to inform each other any time they obtain representation or change representatives. Parties are also expected to share their representative’s contact information with each other so that each party knows where to send disclosure, who to contact for settlement discussions or offers, etc.

A party who wishes to have a representative must also give express written authorization to the Tribunal to communicate with the named representative. The specific wording of the authorization is in the discretion of the parties, but could read as follows: “I, (name of party) hereby authorize the Agriculture, Food and Rural Affairs Appeal Tribunal to communicate with and discuss my case with (name of representative).” The authorization must be signed and dated and contain the representative’s contact information, including address, email address, and telephone number. An authorization to the Tribunal can be revoked in writing. The authorization and revocation can be scanned and sent to the Tribunal by email, faxed, or mailed by post.

Agriculture and Agri-Food Protection Tribunal

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Preparing Your Case

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