Practice Direction on Remote Hearings

The Ontario Physicians and Surgeons Discipline Tribunal is committed to the just and expeditious determination of discipline proceedings.

This Practice Direction provides guidance to participants in Tribunal proceedings. It is not a rule within the meaning of the Tribunal’s Rules of Procedure.

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.

Deciding whether to hold a remote hearing – Who decides and when?

A decision about hearing format is usually made by the pre-hearing chair, after hearing from the parties, at the pre-hearing conference when the hearing dates are scheduled.

If there is a dispute about whether a hearing, or part of a hearing, should proceed remotely the pre-hearing chair may rule or may schedule the matter to be argued before a different member or the hearing panel.

Once the hearing begins, the hearing panel must address any 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.

Deciding whether to hold a remote hearing - What does the Tribunal consider?

Currently, all hearings, motions, pre-hearing conferences and case management conferences are being held remotely.

Once the public health crisis passes and a return to holding in-person hearings is possible, the Tribunal will conduct some proceedings in person. The guidelines below and the Tribunal’s rules will govern the Tribunal’s choice of hearing format.

What type of hearing?

Motions and pre-hearings are conducted remotely unless the Tribunal decides otherwise. Consent motions proceed in writing. All other motions, unless they arise during an in-person hearing, are heard by videoconference. Generally, where evidence is presented as an Agreed Statement of Facts, the hearing will proceed remotely by videoconference.

What 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.

What factors does the Tribunal consider?

When deciding whether to hold a remote or in-person hearing or part of a hearing, the Tribunal’s central goal is to choose the format that best ensures a proportionate, fair and efficient proceeding. In making that decision the Tribunal’s Rules identify five factors:

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;
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 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. Mikhail, 2021 ONCPSD 38.

Any written decisions considering hearing format and applying these criteria are found at https://www.canlii.org/en/on/onpsdt/. This website is free and fully searchable.

Remote hearings are public

All in-person and remote hearings are public unless the Tribunal orders otherwise. Remote hearings are streamed on a private channel and you only need access to the internet to watch. There is a public seating area in the hearing room of in-person hearings and they too may 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 remote hearings 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’d like to purchase transcripts of a hearing, please contact us and we will let you know which court reporting company to contact.

Electronic documents required

Rule 2.03 requires that all documents filed in a proceeding be filed electronically. 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 that 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 will 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. Virtual backgrounds should not be used if they distort the image of the participant.

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, especially if there is any audio/video lag.

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 from 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 panel and the panel 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.

Approved: September 27, 2021; effective November 1, 2021.