Part VI - Evidence, Witnesses and Submissions

​26. Disclosure, Production and Filing of Documents

26.01
The parties to a proceeding shall agree upon a plan for disclosure and production of relevant documents, including a timetable for carrying out the steps in the agreed-upon plan. In preparing such a plan, the parties shall take into account the principle of proportionality, and shall consider whether the costs, burden and delay that may be imposed on the parties in disclosing and producing documents are reasonable in light of the nature, scope and complexity of the matters at issue.
 
26.02
In addition to addressing procedures for the disclosure and production of relevant documents, a plan for disclosure and production of documents shall provide that:
(a) Each party must disclose to the other parties all documents that it proposes to tender as evidence in the proceeding;
 
(b) The obligation of a party to disclose and produce documents in accordance with these Rules shall continue throughout the proceeding;
 
(c) No party is required to produce a document for which privilege exists that would prevent introduction of the document at the hearing.
 
26.03
If the parties are unable to agree on a plan for disclosure and production of relevant documents, the Tribunal will by order direct such a plan, taking into account Rule 26.02, and the considerations the parties are required to take into account under Rule 26.01.
 
26.04
Where a party has not produced a document after being requested to do so by another party, that other party may by motion request the Tribunal to make an order for production.

 
26.05
Subject to Rule 8.10 and Rule 8.11, any Agreed Statement of Facts and Agreed Book of Documents prepared under Rule 16.01(b) shall be filed with the Registrar at least seven days before the hearing or by such other date as established by the Tribunal.  Written evidence, reports of experts, witness names and witness statements disclosed pursuant to Rules 28, 29 and 30 shall not be filed with the Registrar prior to the hearing, but if there is an intention to rely upon same at the hearing they shall be presented to the Tribunal during the hearing in order to determine the admissibility of such evidence. The party who wishes to rely on such evidence is responsible for bringing to the hearing sufficient copies of all documents for the panel and the Tribunal’s record pursuant to Rule 8.10, as well as to provide copies to the other party (if not already provided).
 
 

27. Disclosure of Allegations of Misconduct

27.01
Where the good character, propriety of conduct or competence of a party is an issue in the proceeding, the party is entitled to be furnished with reasonable information of any allegations at least 14 days before the hearing.
 
 

28. Written Evidence

28.01
If a party intends to rely at the hearing on evidence not contained in an Agreed Statement of Facts or an Agreed Book of Documents, that party shall disclose and produce to the opposing party the evidence in question at least 30 days prior to the hearing, or as otherwise directed by the Tribunal. This obligation applies to documents, written evidence, expert reports and witness statements as described in this Part VI of the Rules. If, as a result, the opposing party wishes to present rebuttal evidence, that party shall disclose and produce such evidence at least seven days prior to the hearing , or as otherwise directed by the Tribunal.
 
28.02
The Tribunal may direct a party to submit evidence in a specific format.
 
28.03
The Tribunal may refuse to consider evidence not served or submitted in accordance with Rule 28.01 or Rule 28.02, or may direct that the evidence be tendered in a different manner or that the evidence shall only be considered on such conditions as the Tribunal may specify.
 
 

29. Reports of Experts

29.01
At least 30 days before the hearing or as otherwise directed by the Tribunal, a party who intends to call an expert witness or to rely on or refer to the written report of an expert shall serve on the other parties a signed copy of that report or a report summarizing the expert opinion that the witness will give, as the case may be, and any such report shall include the name, address, and qualifications of the expert.
 
29.02  
Where a party receives an expert report with insufficient time to obtain its own expert report in response, that party may comply with Rule 29.01 by serving the expert report at least seven days before the hearing or as otherwise directed by the Tribunal.
 
29.03  
The Tribunal may refuse to consider an expert report or the evidence of an expert witness where the party putting forward the report or the witness has failed to comply with Rule 29.01 or Rule 29.02 or may direct that the report or the evidence shall only be considered on such conditions as the Tribunal may specify.
 
 

30. Witnesses

30.01
Subject to Rule 30.05, witnesses at an oral or electronic hearing shall be examined under oath or affirmation, unless otherwise directed by the Tribunal.
 
30.02
At least 30 days before the hearing or as otherwise directed by the Tribunal, a party who intends to call a non-expert witness shall provide the other parties with the name of the non-expert witness that the party intends to call to present evidence and shall serve on the other parties a witness statement or statement of evidence the witness will give.
 
30.03
Where a party receives a witness statement or statement of evidence with insufficient time to obtain its own witness in response, that party may comply with Rule 30.02 by providing to the other parties the name of a witness in response and serving on them a witness statement or statement of evidence for that witness at least seven days before the hearing or as otherwise directed by the Tribunal.
 
30.04
The Tribunal may refuse to consider the evidence of a witness where the party putting forward the witness has failed to comply with Rule 30.02 or Rule 30.03 or may direct that the evidence shall only be considered on such conditions as the Tribunal may specify.
 
30.05
The Tribunal may order that:
(a) any particular facts be proved by affidavit;
 
(b) the affidavit of a witness be read at an oral or electronic hearing; and
 
(c) a witness be examined under oath or affirmation before the hearing.
 
30.06
The Tribunal may direct a witness to confirm under oath or affirmation that certain written evidence was prepared by the witness or under the direction or control of the witness and is accurate to the best of his or her knowledge or belief.
 
 

31. Summons to Witness

31.01
A party who wishes to summon a person to give testimony or to produce documents at a hearing shall prepare a Summons to Witness in Form 3 and submit it to the Registrar.
 
31.02
The Chair, Vice-Chair or member of the panel may sign the Summons to Witness.
 
31.03
The party requesting a Summons to Witness shall serve it personally upon the person named in the Summons and shall pay the person the participation fees set out in Appendix B.

 
31.04
Pursuant to sections 10(2), 10(3) and 10(4) of the Act,
(a) Neither the Superintendent, Director of Arbitrations, nor any member of the Tribunal shall be required to testify in a proceeding before the Tribunal; and
 
(b) Except with the consent of the Superintendent, no employee of the Commission or any person engaged by the Superintendent or the Tribunal shall be required to testify in a proceeding before the Tribunal, respecting information obtained in the discharge of the person’s duties under the Act, the Financial Services Commission of Ontario Act, 1997, or any other act.

 

32. Submissions

32.01
If a party intends to present to the Tribunal written submissions and/or a Book of Authorities at the hearing, the party shall provide the opposing party with a copy of these submissions and/or Book of Authorities at least seven days prior to the hearing or as directed by the Tribunal.
 
32.02
Subject to Rule 8.10 and Rule 8.11, if a party intends to present to the Tribunal written submissions and/or a Book of Authorities at the hearing, the party shall file with the Registrar these submissions and/or Book of Authorities at least seven days prior to the hearing or as directed by the Tribunal.