CHAPTER 2

THE HEARING

 

2.1 Notice

The hearing before an administrative tribunal is necessarily preceded by giving notice, which must indicate to the interested parties that a decision will be rendered, the subject of this decision and, where appropriate, the complaints alleged; the prior notice to the parties or their representatives in the record must also indicate the date and place of the hearing.^{283 Citation 283} The notice must be sent to the parties as well as to any person interested in intervening in a case, that is those whose rights are directly affected.^{284 Citation 284} The notice must be sent in sufficient time for the individual to be able to prepare adequately.^{285 Citation 285}

The consequence of a failure to give notice or of insufficient notice is that the decision will be invalid,^{286 Citation 286} unless there is an express or implicit waiver by the person who would have been able to rely on the defects in the notice.^{287 Citation 287}

Neither the Act nor the Regulations contain a provision concerning notice, but the Benefit Manual (c. 13) makes up for this. It states that the appellant, all the interested parties and their representatives must receive at least seven days' notice and a copy of the appeal docket; the Notice of Hearing form is used (INS 5116). Where the chairperson uses the power to summon witnesses conferred on him or her by s. R 80(6) Section 80(6) of the Regulations, notice is also sent (INS 3236).

Our case law has frequently upheld the rule that notice must be given in the proper form of the subject, time and place of the hearing.^{288 Citation 288} The notice must be "sufficient" and indicate "the scope of the hearing in order to permit the persons protected by this rule to derive the maximum benefit from their right to be heard".^{289 Citation 289} This notice also naturally has the purpose of allowing the parties, and especially the claimant, to attend.

Where the claimant or another party fails to appear after receiving sufficient notice, he or she is deemed to waive the right to attend with all the consequences that this entails.^{290 Citation 290} The board may accordingly proceed without the claimant or the other party in this case.

Where the notice is received late by a claimant, there will not necessarily be a breach of natural justice if there is nothing to show that he or she "was not capable of making a complete statement of his case before the board, despite the late arrival of the official notice."^{291 Citation 291} On the other hand, 11 days notice was held to be insufficient because fishermen could be away for long periods because of the nature of their employment.^{292 Citation 292}

In our system, giving notice includes providing the docket prepared by the Commission as set out in c. 13 in the Manual. The docket includes the forms, the Commission's position, all evidence or exhibits and the Commission's arguments. Disclosure of the docket is another requirement of natural justice; it must be prior to the hearing.^{293 Citation 293} However, under certain conditions, some parts of the docket may be released at the hearing.^{294 Citation 294} 

 

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