Primer on the Law of Evidence and Administrative Tribunals Prepared for: Legal Education Society of Alberta Administrative Law Fundamentals Library LESA Presented by: William W. Shores QC Shores Jardine LLP Edmonton, Alberta For presentation in: Edmonton, Alberta – February 1, 2018 Calgary, Alberta – February 8, 2018 PRIMER ON THE LAW OF EVIDENCE AND ADMINISTRATIVE TRIBUNALS Truth told, is there a more tedious topic than evidence? It conjures up images of incomprehensible and numberless rules, pettifoggery and endless argument by the learned and the not so learned.1 James L.H. Sprague INTRODUCTION If one reflects on the law of evidence applicable in courts, its complexity and nuances are quickly revealed: Relevant evidence is admissible, unless it is excluded by an exclusionary rule or its probative value is outweighed by its potential for prejudice.2 One is then quickly drawn into a discussion of the exclusionary rules (and the exceptions to the exclusionary rules), including rules respecting: o hearsay o opinion evidence and expert evidence o character evidence Library o documentary evidence o the examination of witnesses LESA o similar fact evidence o privilege, including solicitor client privilege, settlement privilege, parliamentary privilege, and crown privilege. Administrative tribunals are intended to operate differently than the courts. Former Chief Justice McLachlin has said: …without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift, and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap.3 1 “Evidence before Administrative Agencies: Let’s All Forget the “Rules” and Just Concentrate on What We Are Doing”, (1994-95) 8 CJALP 263-294 at 264. 2 Sopinka, Lederman and Bryant, The Law of Evidence in Canada (3d) at 50, 60 and 64. 3 Cited in L Sossin, “Designing Administrative Justice”, (2017) 34 Windsor Y B Access Just 87-111 at 87. 1 To compel tribunals to comply with the strict rules of evidence would, in many cases, undermine their core function of holding “less formal hearing[s] in which all the relevant points may be put to the tribunal for expeditious review.”4 Therefore, at common law, administrative tribunals are not bound by the rules of evidence applicable in courts. AT COMMON LAW, ADMINISTRATIVE TRIBUNALS ARE NOT BOUND BY THE RULES OF EVIDENCE Administrative tribunals are masters of their own procedure.5 The corollary is that, absent specific direction from the legislature, the rules of evidence applicable in courts do not bind administrative tribunals: As a general rule, strict rules of evidence do not apply to administrative tribunals, unless expressly prescribed….6 The choice of whether or not to admit a piece of evidence is a procedural choice by an administrative tribunal that is entitled to deference by a court.7 In recognition of their expertise in the factual issues with which they deal, courts give administrative tribunals considerable latitude in their assessment of the relevance and probative value of materials tendered in evidence.8 Tribunals are entitled to act 4 R MacAuley and J Sprague, Hearings before Administrative Tribunals (2016)(5th) at 17-3 to 17-7 and Rheaume v Canada (AG), [2002] FCJ 128; 2002 FCT 98 (TD). Library 5Prassad v Canada (Minister of Employment and Immigration), [1989] 1 SCR 560, [1989] 1 RCS 560, [1989] SCJ No 25 at paras 16 and 17. 6 Alberta (Workers' Compensation Board) v Appeals Commission, 2005 ABCA 276, [2005] AJ No 1012, 31 Admin LR (4th) 304, 2005 CarswellAlta 1110 at para 63. LESA See also: EllisDon Corp v Ontario Sheet Metal Workers' and Roofers' Conference, 2014 ONCA 801 at para 33, 123 OR (3d) 253. Cambie Hotel (Nanaimo) Ltd (cob Cambie Hotel) v British Columbia (General Manager, Liquor Control and Licensing Branch), 2006 BCCA 119 at paras 28-36, [2006] BCJ No 501. Gidda v Taxicab Board, 2014 MBCA 58 at para 16, [2014] MJ No 160, 306 Man R (2d) 180, 241 ACWS (3d) 511, 76 Admin LR (5th) 172, 2014 CarswellMan 262. Osif v College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28 at para 82, [2009] NSJ No 111. DJ Mullan, Administrative Law, 3rd ed at 268. R Macauley and J Sprague, Hearings before Administrative Tribunals, 5th ed (Toronto: Carswell, 2016) at 17-3 to 17- 7. DP Jones & AS deVillars, Principles of Administrative Law, 6th ed (Toronto: Carswell, 2014) at 316-317.G Regimbauld, Canadian Administrative Law, 2nd ed (Toronto: LexisNexis Canada, 2015) at 315. Grant MacEwan Community College v Alberta (Human Rights Commission), 2000 ABQB 1015, [2000] AJ No 241. 7 Jean Pierre v Canada (Border Services Agency), 2016 FCA 124 at para 14, [2016] FCJ No 419, 2016 CarswellNat 1278, 488 NR 176. 8 Gill v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1147, 172 FTR 255, 1 Imm LR (3d) 294 at para 12. 2 .