This recent decision expands on my prior post entitled “Cross-Examination Denied at Trial is Likely Justice Denied.”
This recently released decision from the Divisional Court concerned a decision made by a tribunal (in this case the Landlord and Tenant Board), and the appellate concluded that the tribunal’s decision had to be set aside because the tribunal’s procedural ruling denied a party the right to hear their opponent’s evidence under oath.
Just as I pointed out in my prior post how it was procedurally unfair to dispense with cross-examinations on key evidentiary disputes, it is also procedurally unfair to exclude a party from a hearing room when their opponent is tendering evidence. Indeed, how can there be effective cross-examination if a party is precluded from hearing what evidence was led by their opponent? How does a party know the basis upon which the decision will be made if they don’t hear what the other side said? How does a party know what evidence to lead to counter their opponent when they don’t know what their opponent said under oath or affirmation? Clearly, all of these shortcomings reflect why a procedural ruling excluding a party from the hearing room while evidence is being tendered by their opponent leads to justice denied, and a new hearing will be required.
Carr v. Brown, 2022 ONSC 4337
https://www.canlii.org/en/on/onscdc/doc/2022/2022onsc4337/2022onsc4337.html