What are witness lists and summaries?
A witness list is a list of witnesses that a party (including Enforcement Staff) intends to call to testify in a proceeding. A witness summary is a summary of each witness’s anticipated testimony (also known as oral evidence).
In enforcement proceedings, Enforcement Staff is required to serve and file its witness list and serve (but not file) witness summaries to the respondents first. Respondents will then serve and file their witness list and serve (but not file) their witness summaries.
Witness lists and summaries may also be required in other types of proceedings and a Panel will set the order and schedule for their delivery.
For more information, see Rule 27(3) of the Rules of Procedure and Forms and sections 5(1), 6(1) and 7(1) in the Practice Guideline.
Do I need to call a witness? How do I call a witness?
A witness is someone who can provide evidence about an issue or fact that is relevant to a proceeding. For example, a witness may tell the Panel what they saw or heard, or they may explain a document. When a party questions a witness that the party called, this is referred to as “examination-in-chief” or “direct examination”. Other parties will have an opportunity to question the witness (also called “cross-examination”) following the examination-in-chief. The Panel may ask questions of the witness at any time.
A witness can appear voluntarily at the request of the party, or the party can ask the Tribunal to issue a summons that requires a witness to attend at a hearing and give evidence, as discussed below.
For more information, see Rule 26 of the Rules of Procedure and Forms.
What if a witness does not want to testify?
The Tribunal can require a witness to testify by issuing a summons. A summons is a document requiring a person to attend before the Tribunal to testify and/or produce documents. Witnesses who are summoned are legally required to testify at the hearing.
To request the issuance of a summons for a witness residing in Ontario, you must file a draft of the form in Appendix I of the Rules of Procedure and Forms. For more information, see Rule 26 of the Rules of Procedure and Forms. The summons form cannot be used for witnesses who are not resident in Ontario. If you intend to call a witness who is not resident in Ontario, inform the Panel as soon as possible.
Witnesses who have been summoned are required to be paid the same fees and allowances (also called “attendance money”) that are paid to a person summoned to attend before the Superior Court of Justice, as outlined in the Ontario Rules of Civil Procedure (for example, $50 per day plus travel allowances). The party calling the witness is responsible for paying the fees and allowances.
I’m going to be a witness. What is the process for testifying at an in-person hearing?
If you are a witness but not a party to the proceeding, you may be asked to leave the hearing room until it is your turn to testify.
When it is your turn to testify, you will be asked to enter the witness box at the front of the hearing room. The Registrar will stand next to the witness box and say, “You are about to give evidence in this hearing. It is important that you be truthful, and the law requires that you tell the truth.” The Registrar will then ask you whether you want to be affirmed or swear an oath. The choice is yours and both are of equal effect. You will then be asked to spell your name for the court reporter.
If you choose to be affirmed, the Registrar will ask you, “Do you promise to tell the truth, and nothing but the truth?” After you reply, the Registrar will ask you, “Do you understand that breaking that promise would be an offence under Ontario law?” After answering, you should be seated.
If you choose to swear an oath, you may do so on the Bible that is provided by the Registrar, or on a sacred object or holy book that you bring with you. The Registrar will ask you to hold the holy book or sacred object and the Registrar will ask you, “Do you swear to tell the truth, and nothing but the truth?” After you reply, the Registrar will ask you, “Do you understand that breaking that oath would be an offence under Ontario law?” After answering, you should be seated.
If you are a witness but not a party to the proceeding, you will first be asked questions by the party who asked you to testify. If that party has legal representation, the representative will ask you questions. You may then be asked questions (“cross-examined”) by the other parties or their representatives. After cross-examination, there is a limited right for the party that called you to re-examine you, but only on issues that require clarification and arose from the cross-examination. You may also be asked questions by the Panel at any time during your testimony.
There will be a microphone in the witness box. You should speak clearly and loudly so that everyone in the hearing room can hear you. You should also avoid speaking too quickly, to assist the court reporter who will be transcribing what you say.
What is the process for testifying at a videoconference hearing?
If you are a witness at a videoconference hearing before the Tribunal, you should keep the following points in mind:
- You should not share your link or login information for the teleconference or videoconference. Your link or login is unique to you
- If you have any technical issues during the trial run in advance of the hearing, or during the hearing itself, you should first email the Registrar at email@example.com immediately (not your lawyer or anyone else), then try to rejoin the hearing. If you do not have access to email, call the telephone number on the GoToWebinar invitation
- Witnesses are often excluded from a hearing before they testify. You will be asked to make yourself available at a scheduled time and date, but you may have to wait after that scheduled time until you may actually join the hearing. You will be advised when you should join
- Should the Panel need to exclude you at any point during the hearing, the Chair of the Panel will explain the process to you and provide instructions for returning to the hearing
- Before you give your evidence, the Chair of the Panel will remind you that you must do so without using any outside information, without direction from the Panel, and without having contact (including electronic communication) with any other individuals. You will be asked to acknowledge that you understand this obligation
- The Registrar will then ask whether you prefer to affirm or swear that you will tell the truth. If you prefer to swear an oath, you must provide your own holy book or other sacred object
- The Registrar will remind you that it is important to be truthful, and that the law requires that you tell the truth. This requirement to tell the truth is not altered by the fact that the hearing is taking place virtually
- The Chair of the Panel may instruct you not to communicate with any person about the proceeding until you have finished giving all your evidence. once you have finished, you may be instructed not to communicate with anyone else who may be a witness in the same proceeding but who has not yet testified
- When giving your evidence, wait until each question is finished before answering. Speak clearly, not too quickly and at your normal volume
- Try not to interrupt or speak over others
- If at any time you are unable to hear or see clearly the information that is being delivered via the videoconference, you may immediately inform the Panel
- If you are disconnected, you should first email the Registrar immediately at firstname.lastname@example.org or, if you do not have access to email, call the telephone number on the GoToWebinar invitation, and attempt to rejoin the hearing. When you rejoin, you should announce your return. If you encounter issues and are unable to rejoin the hearing, update the Registrar by email. If you do not have access to email, call the telephone number on the GoToWebinar invitation
- Any connectivity issues on the part of a witness will be addressed as they arise. Where appropriate, the hearing will be put on hold while connectivity issues are resolved
I’m a party. Can I testify?
Yes, any party, including a respondent or applicant may testify (also known as giving oral evidence) at a hearing, but is not required to testify.
If you are a party and you want to give oral evidence yourself, then you swear or affirm that you will tell the truth. If you are representing yourself, you then make the statements of fact that you want to make. This is not the time to present your interpretation of another party’s evidence or to make your argument. You will have the opportunity to do that during closing submissions. If you have a legal representative, your representative will ask you questions. When you are finished giving your oral evidence, other parties can question (“cross-examine”) you, including Staff. The Panel may also have questions for you at any time.
What is evidence?
Evidence consists of the facts presented in the hearing. The following are examples of evidence:
- documents or other things (like recordings);
- a party’s own testimony on the facts, provided orally at the hearing;
- witness statements, such as oral testimony or affidavits (which are written versions of testimony); and
- an agreed statement of facts.
The following are not examples of evidence:
- a party’s oral and written submissions and arguments, including opening and closing submissions;
- authorities, including previous Tribunal decisions, court decisions and legislation; and
- the questions asked of witnesses at a hearing (as opposed to the witnesses’ answers).
How are evidence and authorities dealt with at a virtual hearing?
The Parties should confer and discuss in advance of the hearing whether witness testimony will be provided in writing or orally, and, if applicable, how witnesses will be provided copies of any documents to which they will be asked to refer to in their oral testimony.
Documents the Parties may refer to during the hearing and that are not attached to an affidavit from a witness should be electronically provided to the Registrar in advance of the hearing to ensure that the Panel and all Parties have copies. The Registrar will provide instructions for providing documents electronically. Paper copies are not required.
The Protocol for E-Hearings in Appendix A of the Practice Guideline provides guidance on the preparation of electronic hearing briefs of documents the parties may refer to during a hearing. The Document ID column of the Index File (list of documents in the hearing brief) should contain hyperlinks to the documents in the hearing brief. Upon request, the Registrar will provide a guide to hyperlinking documents.
Authorities the Parties may refer to during the hearing should be electronically provided to the Registrar in advance of the hearing to ensure that the Panel and all Parties have copies. The Registrar will provide instructions for providing documents electronically. Paper copies are not required.
In a videoconference, a Party may show a document or authority the Party is referring to on the screen. However, the Party need not show the document or authority on the screen if the Panel and all Parties have a copy of the document or authority
Parties wishing to have the Registrar assist with sharing documents should arrange this with the Registrar in advance.