The Hearing
Who attends a Board hearing?
The Board
- Up to three Board members may be assigned to hear your matter. Three-member panels are normally reserved for labour relations matters under Part I of the Canada Labour Code.
- A Senior Registry Officer may attend to assist the Board member or members with the administrative aspects of the hearing.
- The Industrial Relations Officer may attend the hearing to better assist in conflict resolution discussions.
- Sometimes Legal Counsel attends to provide advice to the Board member or members. This is rare and only happens in more complex cases.
The Parties
- All parties attend the hearing, including any party that has been given intervenor status. Representatives of the parties also attend.
- A representative of the Head of Compliance and Enforcement of the Labour Program (Employment and Social Development Canada) may also attend when the case relates to an appeal of a decision by Employment and Social Development Canada.
Witnesses
- Witnesses are normally asked to wait outside the hearing room, or in a virtual waiting room on Zoom, until the Board is ready to hear their evidence. Witnesses are not normally allowed to hear the evidence of the other witnesses. This prevents them from changing their evidence.
The Public
- Board hearings are public, and one or more members of the public may attend. This is rare and usually only happens in cases that have generated a lot of public interest.
Can I be represented by someone else?
- Yes, each party can be represented by the person of their choice.
- The Board does not provide lawyers to assist parties.
- The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
- The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
- It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.
Are hearings public?
- Yes, Board hearings are public.
- If you are filing information that you do not want the public to be able to access, you need to write to the Board and ask it for a confidentiality order covering that information.
- If the request is granted, the order will prevent confidential information from being available to the public.
- For more information, go to the Board’s Policy on Openness and Privacy.
Are hearings recorded?
The Board's practice and policy is not to record hearings or prepare transcripts of its hearings. Board members hearing a case will take notes of the evidence and submissions, but these notes are not made available to the parties or the public.
Can I record the hearing?
- No one, including the parties, their representatives, witnesses, and the public, is permitted to record the hearing in any format, audio or visual, without the Board’s consent. This includes recording videoconference hearings.
- If you would like to record all or part of a hearing, you must first ask for and be given the Board’s permission.
- If the request is granted, it is up to the party wanting to record to make all necessary arrangements and pay for it. If transcripts are made from the recording, a copy must be provided to the Board and the other parties.
How does a hearing proceed?
- Board members have a lot of flexibility in managing and tailoring hearings to ensure a fair and efficient process.
- In a typical hearing, one of the Board members may start by giving opening comments.
- There are normally two phases in the hearing:
- The evidence: This is the fact-gathering phase. Witnesses are called to testify, and they give evidence in the form of facts (what they know), documents and exhibits.
- The arguments: Each party is given an opportunity to explain to the Board how the facts support their position. It is during this phase that parties refer the Board to case law (decisions of the Board or other tribunals and courts) that supports their position.
- The party that has the burden of proof is responsible for proving that something happened or did not happen.
- Normally, the party that filed the complaint or application has the burden of proof. In certain types of complaints or applications, the burden of proof may be reversed and fall to the respondent.
- The issue of the burden of proof may be discussed at a Case Management Conference.
You can find more information on who has the burden of proof in your matter by visiting the page on this website with information about the type of complaint or application you filed.
There are six categories of complaints and applications:
- Labour Relations – Governs relationships between employers, their employees and the unions that represent them.
- Health and Safety – Appeals and reprisal complaints respecting the rights and obligations of employers and employees for the safety and health of workers.
- Employment Standards – Appeals and reprisal complaints respecting the minimum conditions of employment that employers must provide to employees in areas such as pay, hours of work, leave and severance pay.
- Administrative Monetary Penalties – Appeals of notices of violation and financial penalties imposed on an employer by the Labour Program of Employment and Social Development Canada.
- Wage Earner Protection Program – Appeals of decisions from Service Canada concerning the payment of wages owed by a bankrupt or insolvent employer.
- Status of the Artist – Governs relationships between producers, the self-employed artists who work for them and the artists’ associations that represent the artists.
- After the Board completes its opening statements, the party with the burden of proof calls its witnesses to testify, one at a time. It asks the witnesses questions, and it is the answers to these questions that become the evidence, or the facts. This is called the “examination” of the witnesses.
- After each witness testifies, the other party has an opportunity to ask them questions. This is called “cross-examination.” It is an opportunity for the other party to get additional facts and information from this witness that the Board needs to know and that were not raised during the examination of this witness.
- After the party with the burden of proof has presented all its witnesses, the other party gets to present its own. It examines its witnesses, one at a time. After each witness is examined, the party who went first gets to cross-examine them.
- Once all the witnesses have given their evidence, the party with the burden of proof makes arguments to the Board by summarizing the facts that were given by the witnesses and by referring to laws and decisions that support its arguments. The other party then has the opportunity to do the same.
- Once the evidence and arguments have been made, the Board has all it needs to make its decision. The Board does not normally make its decision immediately at the end of the hearing. It usually takes some time to review the facts and arguments, come to a conclusion, and write the decision.