8423. Conduct of hearing on the merits

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    1. At a hearing on the merits a respondent is entitled to be represented by counsel or an agent and to make submissions.

    2. At a hearing on the merits, other than a written hearing, a respondent is entitled: 

      1. to attend and be heard in person, 

      2. to call and examine witnesses and present documentary and other evidence, and 

      3. to cross-examine witnesses as reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. 

    3. A hearing on the merits, other than a written hearing, must be conducted in the following order: 

      1. Enforcement Staff may make an opening address, which may be followed by an opening address by the respondent,

      2. Enforcement Staff must present its evidence and examine its witnesses, who may be cross-examined by the respondent

      3. the respondent may make an opening address and must present its evidence and examine its witnesses, who may be cross-examined by other parties,

      4. Enforcement Staff may present evidence in reply to any evidence presented for the first time by the respondent and examine witnesses, who may be cross-examined by the respondent, 

      5. if the hearing panel requests or permits, the parties may serve and file, by dates ordered by the hearing panel, submissions in writing on the facts and legal argument with respect to the contraventions alleged in the notice of hearing, which submissions must not be made public prior to the commencement of the hearing of the submissions, and, if necessary, the National Hearing Coordinator must set a date for the hearing of such submissions, 

      6. Enforcement Staff may make closing submissions, followed by the respondent’s closing submissions and Enforcement Staff’s reply to issues raised by the respondent

      7. unless the parties agree otherwise, after the hearing panel makes its decision on the merits of the allegations in the notice of hearing, the National Hearing Coordinator must set a date for the presentation of additional evidence, if any, and the hearing of submissions on sanctions and costs, and 

      8. the hearing panel may request or permit the parties to serve and file written submissions on sanctions and costs, which submissions must not be made public prior to the commencement of the sanctions hearing

    4. After cross-examination of a witness, the party who called the witness may further examine the witness with respect to matters raised for the first time in cross-examination. 

    5. Following examination and cross-examination of a witness, a hearing panel may ask questions of the witness, subject to the right of the parties to ask further questions with respect to matters raised by the hearing panel

    6. If two or more respondents are separately represented, the hearing panel may direct the order of presentation. 

    7. A hearing panel may control the scope and manner of questioning of a witness to protect the witness from undue harassment. 

    8. A hearing panel may order a witness to be excluded from a hearing until the witness is called to give evidence, unless the presence of the witness is necessary to instruct a party’s counsel or agent, in which case the hearing panel may require the witness to be called to give evidence before other witnesses are called. 

    9. If a hearing panel orders the exclusion of a witness, evidence given during the witness’s absence from the hearing must not be communicated to the witness until the witness has completed giving evidence, except with leave of the hearing panel

    10. A hearing panel may permit a party to present the evidence of a witness or proof of a particular fact or document by affidavit, unless another party reasonably requires the attendance of the witness at the hearing for cross-examination. 

    11. If a hearing panel requests or permits the parties to make written submissions on sanctions and costs, unless the hearing panel orders otherwise: 

      1. the date set for the sanctions hearing must be at least 30 days after the date of the decision on the merits, 

      2. Enforcement Staff must serve and file submissions at least 14 days before the sanctions hearing

      3. the respondent must serve and file submissions at least seven days before the sanctions hearing, and 

      4. Enforcement Staff must serve and file any reply submissions at least three days before the sanctions hearing

    12. If a respondent who has been served with a notice of hearing does not attend the hearing on the merits, the hearing panel:

      1. may proceed with the hearing in the respondent’s absence and may accept as proven the facts and contraventions alleged in the notice of hearing and statement of allegations, and 

      2. if it finds that the respondent committed the alleged contraventions, may hear submissions on sanctions from Enforcement Staff immediately, without a further hearing on sanctions and costs, and may impose sanctions and costs pursuant to sections 8209 or 8210, as it considers appropriate.

    There is no history log for this rule.

    There is no history log for this rule.