PART 2Pre-hearing Procedures (continued)
Production and Disclosure of Documents (continued)
Marginal note:Continuing obligation to inform
52 Any party or intervenor who has filed documents with or produced documents to the Complaints Commission and then comes into possession or control of or obtains power over a relevant document, or who becomes aware that the disclosure is incomplete or that the information contained in those documents is inaccurate, must as soon as possible notify the Complaints Commission of the new documents, the incompleteness of the disclosure, or the inaccuracy of the information.
Marginal note:Confidentiality of documents
53 Documents produced by a party, an intervenor or any other person must be treated as confidential by the Complaints Commission unless they are made part of the public record or the Complaints Commission determines otherwise.
54 Before a party, an intervenor or a person who may be called as a witness is provided with a document that has not yet been introduced into evidence, the Complaints Commission may require that the party, intervenor, person and their counsel provide to the Complaints Commission the form set out in Schedule 1.
55 The Complaints Commission may, on its own motion or on the motion of Commission counsel or a party or intervenor who has filed or will file a document, order that the document or information in the document be treated as confidential and may make any order that it considers appropriate.
Marginal note:Contents of motion
56 Commission counsel, a party or an intervenor making a motion for an order of confidentiality must
(a) include in the grounds for the motion details of the specific, direct harm that would allegedly result from unrestricted disclosure of the document or information;
(b) include in the motion a draft confidentiality order that contains the following elements
(i) a description of the document, the information or the category of documents or information for which the order is sought,
(ii) the names of the persons or categories of person who are entitled to have access to the confidential document or information,
(iii) the document, information or category of document or information available to the persons or categories of persons referred to in subparagraph (ii),
(iv) any proposed confidentiality agreement that the persons referred to in subparagraph (ii) intend to sign and the provisions of that agreement,
(v) the number of copies of confidential documents to be provided to the persons referred to in subparagraph (ii) and any limitations on subsequent reproduction of that document by those persons, and
(vi) the procedures to be followed with respect to confidential documents once the hearing is completed.
Marginal note:Filing without confidentiality order
57 A party, an intervenor or Commission counsel claiming confidentiality in a document to be filed that is not covered by a confidentiality order must
(a) file a public version of the document that does not include the confidential information;
(b) provide the Registrar with a version of the document marked “confidential” that
(i) includes and identifies the confidential information referred to in paragraph (a) that has been deleted from the public version,
(ii) identifies the nature of the claim to confidentiality, and
(iii) does not include information for which protection is claimed under theCanada Evidence Act; and
(c) bring a motion under section 55 for an order allowing them to file the confidential version.
Marginal note:Filing with confidentiality order
58 A party, an intervenor or Commission counsel who wishes to file a document containing information that is subject to a confidentiality order under section 55 must file a public version that does not include the confidential information and a confidential version with each page clearly marked “confidential” together with a reference to the date of the confidentiality order. The confidential material that has been deleted from the public version must be highlighted in the confidential version.
Marginal note:Interview by Commission representative
59 (1) A Complaints Commission representative may interview persons who have information or documents that are likely to have a bearing on the subject matter of the hearing.
Marginal note:Presence of counsel
(2) Persons who are interviewed are entitled to have counsel present at their own expense.
Marginal note:Statement or summary of anticipated evidence
60 (1) If Commission counsel determines that a person will be called as a witness following an interview, Commission counsel will provide the witness’ statement if one exists or prepare a summary of the witness’ anticipated evidence.
Marginal note:Deadline anticipated evidence
(2) Commission counsel must provide a statement or summary of anticipated evidence to parties and intervenors, subject to confidentiality orders, at least three days before the witness testifies.
Marginal note:Contents of summary
(3) The summary of the witness’s anticipated evidence must be in writing and contain the substance of the testimony of the witness, as well as a list of documents to which the witness may refer.
Marginal note:List of documents
(4) If a witness refuses to be interviewed by Commission counsel before testifying, if no statement is given or if, for any reason, no summary of anticipated evidence can be prepared, Commission counsel must, at least three days before that witness is to testify, provide the parties and intervenors with the list of documents that may be presented to the witness and must highlight the portions of the documents that relate to the witness’s anticipated evidence.
Summoning of Witnesses
Marginal note:Power to compel witnesses
61 At any time after a hearing is caused to be held under paragraph 250.4(1)(a) of the Act, but before sending its written report under to section 250.48 of the Act, the Complaints Commission may issue to a witness the form set out in Schedule 2, in accordance with paragraph 250.41(1)(a) of the Act.
PART 3Conduct of Hearings
Marginal note:Obligation to provide interpreter
62 (1) If a witness does not understand the language in which their examination at the hearing is being conducted, or is deaf or mute, the Complaints Commission must provide them with the services of an interpreter.
(2) A person intending to call a witness during a hearing must, no later than 30 days before the day on which the hearing is to begin, provide notice to the Registrar if that witness will need the services of an interpreter.
63 If the Complaints Commission orders that a hearing or any part of a hearing be held in private under section 250.42 of the Act, it may make any of the following orders:
(a) that certain persons be excluded;
(b) that certain persons be admitted on terms and conditions;
(c) that restrictions be placed on the disclosure and publication of evidence, including the use of non-identifying initials and the redaction of transcripts and exhibits;
(d) that restrictions be placed on public access to the Complaints Commission’s record, or that the Registrar maintain separate public and confidential records; and
(e) that any other order that the Complaints Commission considers appropriate be made.
Marginal note:Private hearings
64 (1) If a person believes that any information described in paragraph 250.42(a), (b) or (c) of the Act is likely to be disclosed, they may request that the Complaints Commission hold all or part of the hearing in private.
Marginal note:Burden of proof
(2) The person making the request bears the burden of establishing why it is necessary for the hearing to be private.
Marginal note:Private consideration of request
65 (1) The Complaints Commission may convene in private to consider a request under section 64.
Marginal note:Public decision
(2) After convening in private to consider the request under section 64, the Complaints Commission must make its decision public.
Marginal note:Contents of public decision
(3) The public decision must set out the following in writing:
(a) the criteria and principles applied in determining whether the information will be heard in private;
(b) the general nature, to the extent possible, of any evidence that will be heard in private; and
(c) the reasons for accepting or denying the request.
Marginal note:Confidential reasons
(4) The Complaints Commission may, in addition to its reasons referred to in paragraph (3)(c), issue confidential reasons, not available to the public, referring to specific evidence that it decided should be heard in private. If the Complaints Commission decides to issue confidential reasons, it must give reasons for its decision.
Marginal note:Non-disclosure of information
66 (1) Subject to subsection (2), if a hearing or a part of a hearing is ordered to be held in private, no person may disclose, except to their representative or to another person who participates in or attends the hearing or the part of that hearing that was ordered to be held in private,
(a) any information disclosed in the hearing or the part of the hearing that is held in private; or
(b) the confidential reasons, if any, issued by the Complaints Commission.
Marginal note:Order for disclosure
(2) On the motion of a person, the Complaints Commission may make an order permitting a person to disclose any information referred to in subsection (1).
Examination of Witnesses
67 All testimony before the Complaints Commission must be given under oath or solemn affirmation.
Marginal note:Evidence by affidavit
68 The evidence of a witness or proof of a particular fact or document may be given by affidavit, unless the Complaints Commission orders otherwise, and the deponent must be made available for cross-examination, if required.
Marginal note:Exclusion of witnesses
69 (1) The Complaints Commission may, on request or on its own motion, order that witnesses be excluded from the hearing until they are called to testify.
Marginal note:No communication by excluded witnesses
(2) No witness who has been excluded from a hearing may communicate with any person about any evidence or testimony that is given during the course of a hearing until after the witness has testified, except with the leave and on the direction of the Complaints Commission.
Marginal note:Witness counsel
70 Witnesses may be represented by counsel.
Marginal note:Sequence of examination
71 The sequence of examination in the ordinary course of a hearing is as follows:
(a) Commission counsel leads the examination in chief of the witnesses, and may ask both leading and non-leading questions;
(b) the parties may then cross-examine the witness in the order determined by the parties or, failing their agreement, by the Complaints Commission;
(c) subject to the leave of the Commission, intervenors and counsel may cross-examine a witness; and
(d) Commission counsel may re-examine the witness.
Marginal note:Application to lead examination in chief
72 (1) A party, an intervenor, a witness or their counsel may apply to the Complaints Commission for leave to lead the examination in chief of a particular witness.
Marginal note:Applicable rules
(2) If leave to lead the examination in chief is granted, the examination must be governed by the normal rules for the examination of one’s own witness in court proceedings, unless the Complaints Commission directs otherwise.
73 The Complaints Commission may reasonably limit further examination or cross-examination of a witness if it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.
Marginal note:Commission questions
74 The Complaints Commission may question any witness who gives oral evidence.
Marginal note:Communication with witnesses
75 Unless authorized by the Complaints Commission, no party, intervenor, witness or their counsel, may speak to a witness, after that witness has been sworn, affirmed or otherwise accepted as a witness, about the evidence that they have given or are expected to give until the evidence of that witness is complete.
Marginal note:Intention to call witness
76 (1) A party must provide the Complaints Commission with 15 days’ notice of its intention to call a witness.
Marginal note:Refusal to call witness
(2) An intervenor or counsel for a witness may by motion, on 15 days’ notice, apply to the Complaints Commission for leave to call a witness whom the intervenor or counsel for a witness believes has evidence relevant to an issue, if Commission counsel has refused to call the witness.
Use of Documents During Hearing
77 (1) If a party, intervenor or counsel for a witness calls a witness, they must provide Commission counsel, the parties and any intervenors who have an interest in the subject matter of the proposed evidence with the statement of that witness, at least five days before the witness is to testify.
Marginal note:Written summary
(2) In the absence of such a statement, the party, intervenor or counsel for the witness must, subject to any confidentiality orders, prepare and provide Commission counsel with a written summary of that witness’ anticipated evidence and a list of documents that may be put to the witness at least five days before the witness is to testify.
Marginal note:Cross-examination — previous statement
78 (1) If a person uses a document for the purpose of contradicting a witness on cross-examination on previous statements, section 10 of the Canada Evidence Act applies, with any necessary modifications.
Marginal note:List and copy of documents
(2) Counsel or the person conducting the cross-examination must provide to the parties, Commission counsel, the witnesses and any intervenors who have an interest in the subject matter of the proposed evidence, not later than five days before the testimony of that witness begins, a list of documents that may be put to the witness and copies of those documents.
Marginal note:Failure to produce document
(3) If counsel or the person conducting the cross-examination fails to produce a document in accordance with subsection (2), the Complaints Commission may order that the document be produced to all parties, adjourn the proceedings if necessary or make any other suitable order to ensure fairness in the proceedings.
Marginal note:Use of document for other purposes
(4) If counsel or the person conducting the cross-examination wishes to use a document in cross-examination for any purpose other than to contradict the witness, that document must be produced in accordance with section 51.
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