CHAPTER 3
EVIDENCE
Although the Supreme Court has recognized that "the principle of the independence of administrative procedure and evidence" is broadly accepted, it "has never had the effect of limiting the obligation on administrative tribunals to observe the requirements of natural justice."378 For example, there is a clear line of cases confirming that a refusal to admit admissible and relevant evidence constitutes a violation of natural justice tantamount to refusing to exercise jurisdiction.379
Administrative tribunals have the power to make decisions on the relevance and admissibility of evidence. For example, they may refuse to admit testimony or documentary evidence based on an objection or on their own motion. They may rule on objections immediately or admit the evidence under advisement and deal with the objections in their decision on the merits. Tribunals generally take the safer course and admit the evidence under advisement, as it is riskier to refuse to admit evidence whose relevance is being challenged than to allow it in subject to rejecting it in the final decision. It is generally not a denial of natural justice to take an objection under advisement.380
The issue of whether evidence is admissible or relevant can be regarded as one of natural justice or error in law.381 Where boards of referees are concerned, it matters little whether it is one or the other, but in our opinion, it is preferable to view the issue as one involving the legal right of "each party . . . to make representations" under s. 83(1) of the EI Regulations.
The case law has established that tribunals must offer each party an equal opportunity to make its case in terms of presenting witnesses or documentary evidence. Each party must have an equal opportunity to produce evidence and make submissions.382 By way of illustration, a tribunal cannot refuse to admit the evidence of a party to punish that party for a delay.383 A tribunal cannot admit evidence unbeknownst to the other party,384 such as after the hearing has ended385 or before has begun.386 If a tribunal admits one party's evidence, it must always allow the other to submit relevant evidence to contradict it.387
Theoretically, due to the principle of the autonomy of administrative evidence and procedure, civil and criminal evidentiary rules do not apply to administrative tribunals:388 "[B]oards of referees, like other administrative tribunals, are not bound by the strict rules of evidence applicable in criminal or civil courts; they may, therefore, receive and accept hearsay evidence."389
However, natural justice may require that similar rules be applied, and such rules may be applicable by reference (in fact, some statutes expressly provide for this).390
Statutes and regulations are some of the places to look for evidentiary rules applicable to administrative tribunals. At the federal level, one should consult the Canada Evidence Act and the tribunal's enabling statute. If the tribunal sits in Quebec, the Civil Code of Quebec and Code of Civil Procedure cannot be overlooked since they are the province's jus commune. Even federal administrative tribunals must sometimes apply the codes, except when they are inconsistent with an applicable federal rule. Section 40 of the Canada Evidence Act specifically incorporates the laws of evidence in force in the province in which the proceedings are taken, subject to that Act and other acts of Parliament. This means the Civil Code of Quebec and Code of Civil Procedure apply to boards of referees unless there are federal rules in the area. In all other provinces, the existing Evidence Act also applies by reference under the same conditions.
The rules of evidence applicable to administrative tribunals are largely the result of flexible, pragmatic case law inspired by the rules of natural justice.391 The cases seek a balance between two legitimate objectives: the search for truth, and the right to a fair hearing.
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