Preparing for your Hearing
How do I prepare for my hearing?
- Gather all your documents and bind them with an index and tabs.
- Read the opposing party’s evidence carefully and prepare cross-examination questions.
- Bring all the materials you have filed and received under the Order to File.
- Bring your own copy of any relevant legislation, regulation or policies related to your case.
- Bring your witnesses.
- Review the exhibit list that will be produced by the office assigning exhibit numbers to all material filed.
Do I need to file my written evidence ahead of the hearing?
Yes, the MLT requires you to file materials in advance and to exchange documents with the other parties. This ensures that there is pre-disclosure of the evidence for the hearing, and informs the parties about the case. You are entitled to receive notice of the issues in dispute, as well as the position of the party or parties in opposition on those issues prior to the hearing. Reading the evidence of the party in opposition will assist you in this regard.
Filing materials in advance also helps participants prepare and be organized beforehand so that the hearing may proceed more efficiently.
The MLT also wants an opportunity to prepare for the hearing and to understand the issues by reading the materials which have been pre-filed by both parties.
The MLT identifies and describes each document received, and creates an exhibit list which is provided to the parties prior to the hearing. This ensures valuable hearing time is not lost, and that pages and tabs in documents can be easily referred to and located during the hearing.
When you receive the draft exhibit list, please note the exhibit numbers on your own copies. This makes it easier during the hearing for everyone to easily locate and refer to the correct document.
If you file a binder of documents, please put tabs between each document and provide a table of contents for easy reference.
What is an undertaking?
An undertaking is a legal promise which may be given by a lawyer on behalf of the party that he or she is representing. It’s a pledge or a guarantee to do something, such as providing a document to the MLT by a certain date and time.
Why am I asked to bind my documents?
When your documents are bound (preferably with an index and tabs), there is much less chance that they will be misplaced and it will be easier for the MLT to understand your written evidence and arguments.
Can I submit photographs and videos as evidence?
Photographs and videos are helpful, but the person who took them needs to be present to explain what is being shown. However, if the opposing party agrees that the pictures are of “X”, then it may be possible to present the pictures without the person who took them.
What do I need to bring with me to the hearing?
Bring all the materials that you previously filed and received under the Order to File, and that you might need to refer to when you are asked questions or when you ask questions of the other party or parties. Please bring enough copies for all of the parties, the MLT, and possibly the court reporter.
You should also come with your own copy of any relevant legislation, regulation or policies related to the facts of your case.
Many people come to a hearing with a prepared statement. The statement can be useful to set the stage, in a summary fashion, about what happened and indicate the decision the party wants the MLT to reach. However, such a format is not helpful to the decision-maker in making the actual decision.
Will I be responsible for costs?
You will be responsible for your own costs if you decide to hire an agent or a lawyer, if you need to subpoena a witness, or order a transcript of proceedings. If you call a professional witness, you will also be responsible for paying their attendance fee. Usually this amount is commensurate with their daily salary.
At the end of the hearing, if you feel that there are reasons to have your costs (e.g. counsel or witness fees) paid for by the opposing party, you may ask for those costs, which may or may not be awarded at the discretion of the MLT. It is advised that you put your request in writing and be as specific as possible.
What is a witness?
A witness is someone who can give evidence to the MLT and has direct knowledge or experience concerning the application or appeal.
Do I need a witness?
You may choose to bring a witness or witnesses to the hearing to assist you in presenting your case, in the event that you cannot provide all of the evidence yourself. For example, you may wish to retain the services of a professional such as a geologist or an Ontario land surveyor to provide information to the MLT.
Note that all of the evidence that is given at a hearing is given under oath or affirmation. Before testifying, each witness will be asked to either swear or affirm that the evidence that he or she will provide is the truth. Providing false evidence to the MLT is a criminal offence.
How do I subpoena for witnesses?
Sometimes, witnesses require a subpoena or they will not be paid by their employer. In other cases, you may believe that your witness would not attend the hearing without a subpoena. If that is the case, simply ask the MLT for a subpoena, and include your reasons, as well as relevant contact information.
How does cross-examination work?
Each person speaking about facts at the hearing is a witness. Each witness must swear an oath or affirm, which means to make a promise that they are going to tell the truth. They can either tell their story directly, or answer questions that are being asked by the party who called them as their witness. While answering questions or presenting, they are free to refer to notes or any of the documents which the MLT already has. They are also free to discuss what happened to them or what they saw happen. If witnesses discuss what someone told them, this is called “hearsay” evidence. This is not as persuasive as direct evidence coming from a person’s experience. For example, a case cannot be won if all of the evidence to be relied upon is hearsay, as such evidence would not persuade the decision-maker.
Once the witness is finished testifying, the representative for the opposing party has the opportunity to cross-examine (i.e. ask questions of) the witness on their evidence and testimony. The questioning could be done by the party, an agent or spokesperson, or a lawyer. The questions can be very pointed and particular, in a way which one does not see during direct evidence, although the person asking the questions must not badger or bully the witness.
Once that questioning is complete, the witness can be asked further questions by their own party — the original questioner or by themselves if that is how they presented — to clarify only those points raised in the cross examination. This is not a chance to repeat everything that was said before and is for clarification only.
How many people will hear my dispute/application/appeal?
This can range between one to three MLT adjudicators with one appointed as the “Chair” of the hearing.
Why is there a court reporter at the hearing?
Part VI of the Mining Act applies to all proceedings before the tribunal and governs rules of procedure.
By law under the Mining Act, proceedings before the MLT have to be recorded. The transcripts of those proceedings can be purchased by the parties from the court reporting firm.
It is very important that you speak clearly, slowly and loudly enough to be heard and that you instruct your witnesses to do so as well so that the court reporter can produce an accurate transcript of what you and your witnesses have said.
Should I represent myself?
A lawyer or an agent is not required before the MLT. Many parties choose to retain a lawyer or an agent to act on their behalf while some do not. A lawyer can assist you in understanding the law and the legal process in which you are involved. It is suggested that you review decisions posted on the MLT website as they will provide you with a better understanding of previous cases which will assist you in deciding how to proceed.
Do I need to go to the hearing?
It is a very good idea to be present at the hearing, even if you authorize a lawyer or an agent to attend on your behalf. There may be questions from either a party that only you can answer, or may not have anticipated. There may also be questions from the MLT about the issue(s) in dispute or the evidence presented.
What if I want or need to change the date of the hearing?
The MLT sets mutually convenient hearing dates after consultation with the parties. The MLT will issue an Appointment for Hearing which sets out the date and the time of the hearing, as well as what it’s about and who it is between.
If you want or need to change the date of the hearing, you should contact the MLT as soon as possible. However, there is no guarantee that you will be able to change the date.
What if I miss my hearing?
If you miss your hearing, it is important to notify the MLT in writing as soon as possible, and include the reason for your absence. However, as stated in the Appointment for Hearing, the MLT may proceed in your absence.