Office of the Mining and Lands Commissioner (OMLC)
Hearing Guide

The purpose of this Guide is to inform parties of what to expect and describe the hearing process.  This will help them prepare their presentation to the best of their abilities in the form the tribunal decision-maker needs to hear before a decision can be reached.

What is a tribunal? Who is the Commissioner?

A tribunal refers to an officer or officers or a judicial body having the authority in law to hear or to adjudicate legal matters.  The Commissioner, in this case, is the Mining and Lands Commissioner for the Province of Ontario, who is appointed under the Ministry of Natural Resources Act. The Act also makes provision for the appointment of Deputy Commissioners.  The terms tribunal, Commissioner and Deputy Commissioner are often used interchangeably.

The Commissioner makes decisions under the authority of the Mining Act, Conservation Authorities Act, Oil, Gas and Salt Resources Act, Lakes and Rivers Improvement Act, Assessment Act and the Aggregate Resources Act.

For more information on the OMLC please see our website at: www.ontario.ca/omlc

 An overview of a hearing before   the tribunal

The tribunal needs evidence to establish facts.  The evidence comes in many forms and all are acceptable, but some are better than others.  Photographs and videos are helpful, but the person who took them needs to be there in person to explain what is shown.  If someone else talks about it, then this “evidence” is in part guess work, and it just isn’t quite as good as coming from the person who “knows” because they experienced it.  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.
 
Each person speaking about facts at the hearing is a witness.  Each witness must swear or affirm an oath, 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 tribunal should already have on file.  They are also free to talk about what happened to them or what they saw happen.  If witnesses start talking about what someone told them this is what 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 is hearsay as such evidence would in all likelihood not persuade the decision-maker.

Once the witness is finished, the representative for the opposing party has the opportunity to cross-examine the witness on their evidence and testimony. The questioning could be done by the party him or herself, an agent or spokesperson, or a lawyer, it doesn’t matter which. The questions can be very pointed and very particular, in a way which one does not see during direct evidence.  This is allowed, although the person asking the questions must be very careful not to 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.  It is for clarification only. 

The parties do not have to be concerned that the other party will get the last word.  It is not the last word which will persuade the decision maker, but rather, all of the facts, documentary evidence and the law. 

This format for hearings is based upon the common law courts.  The parties should not become concerned that the hearings are very court-like and formal.  There is a structure, it is true, but that structure exists to assist the decision-maker in obtaining everything necessary to reach a decision.  Parties should not become intimidated, nor should they be concerned that the tribunal will decide against them for not getting it “right”.  The foremost concern is to prepare one’s case and present it in the best possible way.  Coming prepared is the key.

The questions and answers below will provide more detail and help you to know what to expect.

What is an Order To File?

An Order to File is an Order from the Commissioner which orders the parties to file their evidence with both the tribunal and with the party or parties in opposition.  The evidence includes all materials which are to be relied upon if the matter needs to proceed to a hearing, for example, written statements of witnesses and experts, official records, documents, maps, resumes, photographs, correspondence, or any other documentary materials.  The Order to File will state explicit deadlines for the filing of documentation.

When in doubt, include a document or at least provide a list of documents naming them, allowing the opposing side or the tribunal to make up its mind as to whether that document will also be needed. 

Please do not attend a hearing without having filed everything you intend to rely on.  While the decision-maker may allow you to file it anyway, the opposite party may not be prepared to deal with it on that day, not having seen it before, and so the proceedings may have to be adjourned to another day. 

When in doubt, include it.

Why do I need to file my written evidence ahead of the hearing?

We require you to file materials in advance and to exchange documents with the other parties so that there is pre-disclosure of the evidence for the hearing.   This lets the parties know the case that they will have to meet at the hearing.  You are entitled to notice, or to know the issues in dispute as well as to know 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 be of great assistance in this regard.

Filing materials in advance also encourages people to prepare and be organized beforehand so that the hearing may proceed more efficiently.

The tribunal also wants an opportunity to prepare for the hearing and to understand the issues by reading the materials which have been filed by both parties.

The OMLC identifies and describes each document, thereby creating an exhibit list which is provided to the parties prior to the hearing so that valuable hearing time is not lost and so 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 same exhibit numbers down on your own copies. This makes it easier during the hearing to have everyone be able to easily locate and refer to the right document.

If you file a binder of documents, please put tabs between each document and include a table of contents.  Again, this is for ease of reference.

Why am I asked to bind my documents?

The tribunal has jurisdiction under many different Acts of Ontario and receives many different appeals and applications so a lot of paper is filed. When your documents are bound (preferably with an index and tabs) and organized, there is much less chance that they will be misplaced and it will be easier for the Registrar or Mediator and the Commissioner to understand your written evidence and arguments.

What do I need to bring with me to the hearing?

Bring all the materials that you have previously filed and received under the Order to File. All materials 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 Commissioner(s) 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.  To find these, follow the links: 

Mining Lands Policies – MNMDF
http://www.mndmf.gov.on.ca/mines/lands/policies/default_e.asp?

Conservation Ontario
http://www.conservation-ontario.on.ca/

Oil, Gas and Salt Resources
http://www.mnr.gov.on.ca/fr/Business/OGSR/index.html

Service Ontario e-Laws
http://www.e-laws.gov.on.ca/index.html

Many people come to a hearing with a prepared statement.  There is nothing wrong with doing this.  However, such a format is not helpful to the decision-maker in making the actual decision.  The statement can be useful as an opening in that it can set the stage, talk in a summary fashion about what happened, and suggest the decision the individual wants the tribunal to reach.

What is a witness?/Do I need a witness?

A witness is someone who can give evidence to the tribunal. Someone who has direct knowledge or experience concerning the application or appeal can be of tremendous assistance to the party presenting the case.

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 person such as a geologist or an Ontario land surveyor to provide information to the Commissioner.

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 tribunal is a criminal offence.

What will I be expected to do at the hearing?

You will be expected to present your case.  Your case is your opportunity to tell your story to the Commissioner.  The case is based on the evidence that you will present.  You will also have an opportunity to cross-examine anyone who is giving evidence for the other party(ies).

A hearing will usually be organized as follows:

1.  Each party will give a short opening statement to inform the tribunal and the other party(ies) in opposition of what their case is about.

2.  If you are the applicant, you will usually present first and start with what is known as “direct examination” of you and/or your witness(es).  This is your opportunity to present your case. 

3.  Once the direct examination is completed, you and/or your witnesses will then be “cross examined” by the party in opposition. This involves the other party asking questions of you about the issue(s) in dispute.

4.  After cross-examination, further questions of clarification only may be asked by the original person asking questions.  This is called re-direct.

5.  After all of your witnesses have been examined and cross-examined, the same process will be afforded to the other parties, i.e. steps 2 and 3 are repeated until each party has the opportunity to present a case in direct examination, cross-examination and re-direct.

6.  Finally, during the last stage of the hearing, each party will present their “final argument” which is a summary of what their case was about, what they attempted to prove and what they would like the Commissioner to decide.

Throughout the process, the tribunal may ask questions.

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 make an accurate transcript of what you and your witnesses have said and so that the tribunal and the opposing party can hear you.

It is also very important that you listen to any directions that may be provided, from time to time, by the Commissioner or the Deputy Commissioners. You are encouraged to ask questions of clarification should the need arise and to answer questions directly and clearly.

For more detailed Procedural Guidelines for hearings, please see the OMLC website at: www.ontario.ca/omlc

How do I prepare for the hearing?

Preparation takes time.  It is advisable to prepare the presentation of your case and to be as organized as possible so the presentation will go well.

Cross-examination questions should also be prepared in advance as much as possible.  Reading the evidence of the party in opposition will be of great assistance in this regard.

Should I represent myself?

A lawyer or an agent is not required before the Commissioner. Many parties choose to retain a lawyer or an agent to act on their behalf, but some do not.  A lawyer can assist you in understanding the law and the legal process in which you are involved.

Do I need to go to the hearing?

It is a very good idea to be present at the hearing. You may authorize a lawyer or an agent to attend on your behalf however, you should seriously consider attending because there may be questions from either a party or from the tribunal about the issue(s) in dispute or the evidence that you may have not anticipated and that only you can answer.

What if I want or need to change the date of the hearing?

The OMLC sets mutually convenient hearing dates after consultation with the parties and the Commissioner 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 Registrar of the OMLC as soon as this becomes an issue.  There is no guarantee that you will be able to change the date, especially on short notice.  There must be a very good reason to do so.

What if I miss my hearing?

Under these circumstances, it is important to notify the OMLC in writing as soon as possible as to the reasons for your absence. Nonetheless, as stated in the Appointment For Hearing, the Commissioner may proceed to issue the decision in your absence.

How many people will hear my dispute/application/appeal?

Usually one but perhaps two or even three decision makers will hear and subsequently decide your matter.  They will be a combination of the Commissioner and the Deputy Commissioners with one appointed as the “Chair” of the hearing.

Why is there a court reporter at the hearing?

By law under the Mining Act, proceedings before the Commissioner have to be recorded. The transcripts of those proceedings can be purchased by the parties should they choose to do so.

Could my dispute be mediated before it is adjudicated?

Mediation may be requested by one or the other party or may be suggested by the tribunal. If all parties are agreeable, a date for mediation will be set. If the mediation is successful, your matter will be either dismissed or granted on consent, with or without conditions. If the mediation is not successful, the matter will proceed to a hearing.

How will I be notified of the tribunal’s Decision?

A signed and sealed copy of the tribunal’s final written Decision with Reasons will be mailed to you and the other party(ies) to the matter as soon as it has been completed.  This can take a week or up to a number of months.  Each case is unique and has varying degrees of complexity which can affect the length of the Decision as well as the time it takes to be written and issued.

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 tribunal by a certain date and time.

Will I be responsible for costs?

You will be responsible for your costs if you decide to hire an agent or a lawyer or order a transcript of proceedings.  If you call witnesses, you will be responsible for paying their fees for attendance.  Usually this amount is commensurate with their daily salary.

At the conclusion of the hearing, if you feel that there is a good reason(s) to have your costs (such as counsel fees and fees for witnesses) paid for by the opposing party, you may ask for those costs which may or may not be awarded at the discretion of the Commissioner and the Deputy Commissioners. It is a good idea to put your request in writing and to be as specific as possible.

What if I disagree with the tribunal’s Decision?

You may appeal the tribunal’s Decision to the Ontario Superior Court of Justice.  An appeal must be filed within 30 days of the issuance of the Order. You will need a lawyer if you wish to file an appeal.