Practice Direction on Remote Hearings

What is a Remote Hearing?

A remote hearing is any proceeding, or part of a proceeding, before the Tribunal which is not held in person. A remote hearing may be conducted in writing, by telephone conference call, by videoconference or by any other form of technology. Currently, most remote hearings are held by videoconference using the Zoom platform.

Who decides on the format of the hearing?

A decision about hearing format is usually made by the case management chair, after hearing from the parties, at the case management conference where the hearing dates are scheduled.

If there is a dispute about whether a hearing, or part of a hearing, should proceed remotely the case management chair will usually decide the issue. In certain circumstances the Tribunal Chair may schedule the matter to be argued before the hearing chair or the hearing panel.

Once the hearing begins, it is often the hearing panel that addresses new issues and developments. It may conclude, usually after a request from a party, that another format is a fairer and more proportionate way to conduct some, or all, of the hearing.

Factors considered when deciding hearing format

Most hearings, motions, and case management conferences are being held remotely. The Tribunal may conduct some proceedings or parts of a proceeding in person. The guidelines below and the Tribunal’s rules govern the Tribunal’s choice of hearing format.

Type of hearing

Motions and case management conferences are conducted remotely unless the Tribunal decides otherwise. Consent motions proceed in writing. Generally, where evidence is presented as an agreed statement of facts, the hearing will proceed remotely by videoconference.

Part of the hearing

Different parts of a proceeding may use different formats. For example, the Tribunal may order that final argument take place by videoconference in a hearing where some or all witnesses testify in person. In an in-person hearing a witness may testify by videoconference from a different location.

Factors

The Tribunal’s central goal is to choose the format that best ensures a proportionate, fair and efficient proceeding. Rule 14.1.3 identifies five factors that are considered in making that decision:

• the Tribunal’s public interest mandate;
• whether the parties consent;
• the nature, significance and complexity of the issues, including whether the Tribunal will need to assess the credibility of a witness;
• accessibility of the hearing to participants and the public; and
• facilitation of participation by persons who have been historically disadvantaged within the legal and/or medical system, in particular Indigenous peoples and communities and vulnerable witnesses.

In applying these factors, the existence of credibility issues, and how significant they are, is one important consideration. This is not to suggest that all hearings where credibility is an issue will proceed in person or that a decision-maker’s ability to fairly assess credibility is reduced in a remote hearing. Credibility is properly determined by undertaking a logical analysis of what the witness said, not how they said it. At the same time, the Tribunal recognizes that in-person examination and cross-examination of witnesses can sometimes be more spontaneous and free-flowing than by videoconference.

Travel to Toronto for hearing may be a significant financial and time burden for persons living outside the GTA. This too will be an important factor when deciding whether to allow a witness to testify remotely.

The Tribunal recognizes that access to technology or a stable internet connection may present a barrier to participation in a remote hearing. On request, the Tribunal will make best efforts to arrange for technological supports through the CPSO’s IT department.

For a discussion of hearing format, see College of Physicians and Surgeons of Ontario v. Dr. X, 2021 ONCPSD 38.

All hearings are public

In-person and remote hearings are public unless the Tribunal orders otherwise. Remote hearings are streamed on a private channel and require only internet access to watch. In-person hearing rooms have a public seating area and may also be streamed. For details about upcoming hearings, visit our website. If you would like the link for a hearing or other information about attending, contact us at tribunal@opsdt.ca.

Recording hearings is not permitted

Anyone attending a hearing, whatever the format, must not record the hearing or take photos or screen captures of the hearing. Breaking this rule may lead to fines of up to $25,000. See s. 29 of the Statutory Powers Procedure Act.

A court reporter is present at all hearings. If you wish to purchase hearing transcripts for hearings held before September 1, 2021, contact the Tribunal office to find out which court reporting company recorded the hearing.

For hearings held after September 1, 2021, you may order a transcript directly from Veritext Court Reporting at https://www.veritext.com/toronto/.

Electronic documents required

Rule 1.5.2 requires that all documents filed in a proceeding be in an electronic format. The Practice Direction on Format of Documents provides information about formatting and naming electronic documents. If a hard copy of a document is filed during an in-person hearing, the electronic version must be provided at the same time or as soon as possible afterward.

Tips for participating in remote hearings held by videoconference

Whether attending a remote or in-person hearing, you are expected to act in a respectful and courteous manner and follow the panel’s instructions.

Join the hearing at least 15 minutes before the start time to ensure there are no technological issues that could create a delay. The hearing technician will assign parties and their counsel to separate break-out rooms before the hearing begins and place you in the rooms at breaks. You can have confidential conversations in your individual break-out room.

Do what you can to reduce the risk of interruptions during the hearing. Try to minimize potential background noise. Note that the sound of typing on your keyboard may be picked up by your microphone. Using a wired or Bluetooth headset with a microphone is recommended.

Close all applications on your computer that are not needed for the hearing. Mute email notifications and put your phone on silent. Keep your phone accessible so you can call the Tribunal Office if the video technology fails.

Remember to look in the direction of the camera as much as possible when testifying, making submissions and addressing the panel. Ensure that the background visible on the screen is appropriate for a Tribunal hearing.

It is important that only one person speaks at a time. Signal the panel chair by raising your hand if you want to interject. Remember to pause and speak slowly and clearly.

Try to check lighting before you join the hearing. You want to be adequately lit to allow your face to be seen. Ideally the light should come from behind your camera rather than behind you. Also, remember you are always on camera. Be aware of your facial expressions or gestures even when you are not speaking.

Witnesses in remote hearings

Witnesses will be assigned to a break-out room until the panel is ready for their testimony. The hearing technician will bring the witness into the videoconference hearing.

When affirming a witness in a remote hearing the chair asks the witness to make two promises in addition to the promise to tell the truth:

• Do you solemnly promise that no one else is with you, that you will tell me if anyone comes into the room during your testimony, and that you will not communicate with anyone in any way while you are testifying unless I give you permission?
• Do you solemnly promise you will not look at documents, notes, electronic devices or other materials unless asked to by me or by counsel?

If the witness requests a support person to be present while they testify, this should be communicated to the Tribunal and the chair will give the support person instructions and directions as necessary. Support persons must not participate in the proceedings or speak to the witness about their evidence. The Tribunal’s Witness Guide provides information for witnesses in Tribunal proceedings.

Effective January 1, 2023.