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Practice Direction -
Electronic Hearings

Background

1. Under Rule 2.04 of the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal (the “Rules”), the Tribunal may issue practice directions pertaining to certain types of proceedings or with respect to any matter the Tribunal deems appropriate.

2. The Rules also permit the Tribunal to direct the parties to participate in pre-hearing conferences (Rule 16.02) and to hold hearings (Rules 20-23; Rule 30) electronically, as well as in person and in writing. This practice direction applies to any part of an electronic proceeding (i.e., pre-hearing conference, motions and hearings) to be conducted by means such as, tele-conferencing (telephone) or video conferencing using Microsoft Teams, and is subject to the Rules, the Statutory Powers Procedure Act, R.S.O. 1990, c 22 (the “SPPA”) and other applicable legislation. This practice direction is of general application and is not limited to any particular factor set out in Rule 20.03.

3. Under Rule 3, “electronic hearing” is defined to mean “…a hearing held by teleconference, video conference or some other form of electronic technology allowing persons to hear one another.” Rule 3 applies to pre-hearings, motions and hearings.

Pre-Hearing Conferences

4. While the Rules provide that a pre-hearing conference may be held in person, they direct that “Pre-hearing conferences shall be held by tele-conference, unless a party satisfies the Tribunal that holding it in this format would likely cause that party significant prejudice, or unless the Tribunal directs otherwise” (Rule 16.02). The Tribunal’s current practice has, for some time, been to hold pre-hearing conferences by tele-conference, unless a party to the proceeding submits a request to the Registrar for an in person pre-hearing, or the chair of the panel determines that the specific circumstances relating to the parties warrant an in person pre-hearing. This practice is further reflected in current Tribunal pre-hearing procedures and practices and is anticipated to continue. Under this practice direction video-conferencing may be ordered by the Tribunal, instead of tele- conferencing, as the pre-hearing conference format.

Hearings and Motions

5. A hearing or motion shall be conducted in the format agreed upon by the parties, subject to the Tribunal’s discretion to convene all or any part of a hearing or motion electronically or in some other format in accordance with its authority under Rule 20.03 which provides:

“20.03 In deciding whether to hold a written or electronic hearing in lieu of an in person hearing, or to hold a hearing in a combination of formats, the Tribunal shall consider whether an alternative hearing format will likely cause any party significant prejudice and may consider any relevant factors, including:

  1. the subject matter of the hearing;
  2. the nature of the evidence, including whether credibility is an issue and the extent to which facts are in dispute;
  3. the extent to which the matters in dispute are questions of law;
  4. the convenience of the parties;
  5. the cost, efficiency and timeliness of the proceeding;
  6. avoidance of unnecessary length or delay;
  7. ensuring a fair and understandable process;
  8. the desirability of facilitating public participation or public access to the Tribunal’s process;
  9. public health and safety concerns or compliance with government public health restrictions;
  10. the consent of the parties; and
  11. any other relevant factors affecting the fulfilment of the Tribunal’s statutory mandate.”

6. The format to be used during all or any part of a proceeding will be determined by the Tribunal panel chair at a pre-hearing conference based on the Rule 20.03 considerations, Tribunal practice directions and the submissions of the parties.

7. Where the Tribunal determines that the appropriate electronic format for a prehearing conference, motion or hearing is by means of video conferencing, Microsoft Teams will be used where feasible.

8. In general, as part of the pre-hearing arrangements for an electronic hearing, the panel chair will have a detailed discussion with the parties relating to a number of matters, including:

  1. the participants’ technical skills/savvy and device hardware/internet/speed/bandwidth capabilities to troubleshoot any threshold connectivity or other challenges participants may face at an audio/video hearing;
  2. reminding the parties that the prospect of an audio/video conference hearing makes it even more desirable for them to make every effort to reach agreement on an Agreed Statement of Facts (“ASF”) and Agreed Book of Documents (”ABD”) which is as comprehensive as possible;
  3. the requirement that disclosure, service and filing of all documents and submissions shall be in electronic format (e.g., PDF or Word by email, thumb drive or other electronic means) unless otherwise ordered by the Tribunal in consultation with the parties;
  4. reminding the parties that if a witness is participating in the hearing electronically, the witness (in addition to the other parties and the Registrar) should have, in advance, copies of all documents the witness is expected to rely on at the hearing during testimony. The panel chair will also encourage the parties to submit affidavit evidence through witnesses that will be subject to cross-examination at the hearing or, if the Tribunal so orders in consultation with the parties, cross-examined on the record before the hearing;
  5. reminding the parties that while evidence disclosed among parties other than that contained in an ASF/ABD should not normally be filed with the Tribunal in advance of the hearing, an exception is made for electronic hearings. Where the hearing format is electronic in whole or in part, the parties will be told to file all documents in this “other evidence” category with the Registrar at least 30 days prior to the commencement of the hearing. This will facilitate the Registrar’s ability to organize the documents expected to be put into evidence by the parties through their witnesses at the hearing. When received in advance the documents can be easily distributed to panel members by the Registrar at the hearing and placed on screen by the Registrar as potential exhibits for all to see, in addition to the copies directly in the possession of the witnesses and the parties; and
  6. scheduling a practice Microsoft Teams session with the Registrar (absent Tribunal members) in advance of the first hearing date to familiarize the parties with the electronic hearing format and test technical requirements.

Public Access

9. Tribunal hearings, whether in person, written or electronic, are open to the public, unless the Tribunal orders otherwise pursuant to section 9 of the SPPA and Rule 23. Members of the public who wish to attend an electronic hearing should refer to the hearing schedule posted on the Tribunal website and contact the Registrar well in advance of the hearing to obtain instructions.

Guide to Video Conferencing for Proceedings Using Microsoft Teams

10. Attached to, and forming part of, this practice direction as Appendix “A” is a Guide to Video Conferencing for Proceedings Using Microsoft Teams initially developed by Tribunals Ontario and adapted for use by the Tribunal. Parties are encouraged to familiarize themselves with this practice direction including Appendix “A”.

First Issued - December, 2020

Revised – June, 2022

Revised – July 20, 2023


Appendix “A” - Guide to Electronic Hearings (Video Conferencing) and Microsoft Teams

The Financial Services Tribunal of Ontario will hold electronic hearings via video conferencing using Microsoft Teams where feasible and procedurally appropriate. This Guide is to be applied by the parties to such hearings as part of the Tribunal’s Electronic Hearings Practice Direction which is subject to the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal (“Rules”), the Statutory Powers Procedure Act, R.S.O. 1990, c 22 and other applicable legislation.

Note: References in this Appendix “A” to “hearings” and “proceedings” are intended to be read to include references to any electronic pre-hearing, motion or hearing being heard by the Tribunal through video conferencing. Also, references to “participant” should be read to include parties as well as their witnesses expected to present at the hearing, but excludes members of the public who are permitted to join the hearing only as observers/attendees.

Table of Contents

A. How to Prepare for a Video Conference
B. Joining the Video Conference
Microsoft Teams User Guide

A. How to Prepare for a Video Conference

General

1. The Tribunal Registrar will provide participants with a Microsoft Teams link (the “MT Link”) and participants must ensure that they have access to all related documents and tools before the start of the video conference. This will be discussed during the pre-hearing phase of the proceeding so parties should be well aware of all requirements in advance of the hearing. Participants should contact the Registrar if they do not have the necessary applications and tools.

2. Parties must use their full first and last names as they appear on the Notice of Hearing (and common usage first name if applicable) when signing into the MT Link so that the Registrar can identify the participants in the video conference and parties to the proceeding can easily identify who is participating in the video conference.

3. As soon as possible or at least 14 days before the first scheduled hearing date, each party should endeavour to provide the Registrar with a complete list of their participants for technology testing and training purposes as may be required. The list must include each participant’s full name and user name, if joining by videoconference, together with email and telephone number to be used in the event of technical difficulties during the hearing.

4. Parties are responsible for providing the MT Link to their witnesses and informing their witnesses that they have to join Microsoft Teams at the time directed by the Registrar to begin participating in the proceeding and/or give their evidence. The exact timing of a witness being called to testify at the hearing is difficult to predict and is subject to change as the hearing process unfolds, however a party’s witnesses must be available and ready to proceed when the party expects to call them. Any party or witness who has not used Microsoft Teams previously should contact the Registrar at least 5 days prior to their first hearing using Microsoft Teams in order to test their equipment capabilities so that the hearing will not be unnecessarily delayed. This allows the Registrar an opportunity to troubleshoot potential issues.

5. With respect to devices, participants should use a computer (desktop or laptop) or tablet for the video conference. The device needs to be properly set up (see below). Participants may use a smartphone for the video conference in exceptional circumstances approved in advance at the discretion of the Tribunal, however, the use of a smartphone is discouraged due to potential disruptions (incoming calls and messages), size of screen and the risk of running out of battery.

6. Members of the public who wish to observe a hearing should visit the Tribunal website (https://www.fstontario.ca/en/) to determine the hearing schedule and then contact the Registrar (contact@fstontario.ca) at least one week in advance of the start of the hearing for instructions on how to join as an attendee through Microsoft Teams.

Device Setup - Technology Requirements

7. All participants and attendees are required to install the Microsoft Teams app on their devices and familiarize themselves with its functions in advance of the hearing.

8. Devices used for Microsoft Teams should be equipped with a webcam and microphone and access to a reliable internet connection with adequate bandwidth. The device should always be plugged in to an electrical outlet and, where possible, directly connected to a modem/router to avoid potential Wi-Fi problems. Note - It is preferable to use a computer that is connected to a Local Area Network (LAN); wireless connections are to be used only when no other alternative exists.

9. Tips:

10. Attendees, including members of the public should turn their cameras off and remain muted throughout the entire hearing unless otherwise ordered by the Tribunal.

B. Joining the Video Conference

11. In addition to the Tribunal members assigned to the proceeding, the following people are authorized to attend a hearing, unless otherwise ordered by the Tribunal:

Participants Attendees

All participants/attendees must identify themselves when asked to do so by the Registrar/Tribunal. If the Tribunal makes a witness exclusion or confidentiality order under the Rules with respect to all or a portion of the proceeding, certain participants/attendees may be excluded in accordance with any such order.

Attendees, including the media, are not permitted to record the hearing.

A copy of all or a part of the hearing transcript may be ordered from the Registrar by a party at the cost of the ordering party.

12. All participants/attendees should join Microsoft Teams at least 10 minutes before the scheduled start time to allow enough time to log in. If anyone has any difficulty joining, they should refer to the Microsoft Teams User Guide below and/or contact the Registrar.

13. At the beginning of each electronic hearing, the Registrar will confirm that all required participants are present before the hearing panel joins the session. Everyone joining the conference individually or sharing a room with a participant must identify themselves before the commencement of the hearing. The Registrar will also inquire as to whether any members of the public or media are present and ask any of them to identify themselves.

14. Once all participants have joined the hearing on Microsoft Teams, the Tribunal will allow everyone to enter the electronic hearing room.

15. The Chair of the hearing panel may take a roll call before the hearing commences to confirm that the parties and other required participants are present and ready to proceed. The Chair may also remind any members of the public or other attendees that their role is as observers only and that they are to remain muted with camera off and are not allowed to actively participate in the hearing in any way. Members of the public, including the media, as well as all hearing participants will be reminded that private recordings of the hearing are not permitted.

What is expected of participants?

16. The same formal etiquette and protocol of in person proceedings are expected in a video conference. This means participants will follow the Tribunal’s Rules and directions throughout the hearing, including:

Due to technology constraints, there may at times be a lag between when something is being said and when it may be heard by others.

Rules for witnesses during electronic and hybrid hearings or motions

17. In preparation for a proceeding, parties are expected to advise their witnesses of any protocol they agreed to and practices set out in any pre-hearing conference memoranda and in this practice direction.

18. To protect the integrity of the proceeding, rules for witnesses include:

Notwithstanding the above, where a witness is a self-represented party, they may refer to their own notes to assist in giving their evidence in chief and may refer to documents that are in evidence or that they are permitted by the Tribunal to introduce into evidence. During cross examination self-represented parties who are witnesses are bound by the same rules as other witnesses as set out above.

Where a self-represented party refers to their own notes to assist in giving evidence the other parties may seek leave to cross-examine on those notes. The Tribunal, after hearing from all of the parties, may, in the Tribunal’s absolute discretion, grant leave with or without restrictions.

Best practices for document submission

19. Best practices include:

How to make an objection?

20. Objections will be handled as follows:

21. Should there be a need for side-bar arguments and/or discussions between counsel in the absence of the Tribunal during the electronic hearing, these can be accommodated through adjournment and direction from the Tribunal to the Registrar [see breakout rooms discussion below].

Panel Deliberations

22. Should there be a need for the Tribunal to deliberate (have an opportunity to have a discussion amongst themselves) during the electronic hearing, the Tribunal may adjourn to a breakout room.

Public proceedings best practice

23. A public proceeding schedule will be posted on the Tribunal website in advance of the hearing. Subject to Tribunal confidentiality orders made pursuant to the Rules, and unless the Tribunal orders otherwise, the public may observe a public hearing conducted on the Microsoft Teams platform. To do so, members of the public should refer to the hearing schedule posted on the Tribunal website and contact the Tribunal Registrar well in advance of the hearing to obtain instructions. Note – members of the public will not be allowed to actively participate in a proceeding. Members of the public who do not comply with this or any other direction from the Tribunal at the hearing may be barred from the proceeding by Tribunal order. If a member of the public has a technical issue before or during the video conference, they should contact the Registrar by email.

24. Observers/attendees of a proceeding will be expected to cooperate with the instructions of the Tribunal while on the call. Such instructions may include:

25. Observers/attendees should be prepared to remain on the video-conference for the duration of the hearing as the Tribunal has the right to “lock” a video-conference after the start of the hearing to minimize disruption.

Interpreters

26. Whenever appropriate, interpreters will be engaged in a proceeding. The Tribunal will follow its normal procedures for engaging an interpreter and will provide the interpreter with instructions on joining a hearing via Microsoft Teams. The interpreter will be expected to provide interpretation services as needed throughout the proceeding, subject to any guidance ordered by the Tribunal. Participants, who require interpretation services, should contact the Registrar in sufficient time before the hearing to request this service.

Assistance

27. If a participant/attendee is disconnected from the video conference and cannot reconnect, they must immediately contact the Registrar. If a participant/attendee cannot rejoin, the hearing may be temporarily adjourned at the discretion of the Tribunal. In this event, the Tribunal will instruct the Registrar to immediately convene a tele-conference call with the parties to determine next steps. In some cases, the Tribunal may adjourn the hearing to a new date if it determines that the hearing cannot proceed fairly, or for other appropriate reasons.

Privacy Disclaimer

28. Electronic hearings shall be conducted by video conference using Microsoft Teams. Participants/attendees should note that, by clicking on the MT Link to join the video conference, personal information such as name, email address and IP address may be collected, stored, used and disclosed by Microsoft in accordance with its Privacy Policy and the Canadian Personal Information Protection and Electronic Documents Act. Please refer to Microsoft’s Privacy Policy for more information.

Microsoft Teams User Guide

Getting Started

Participants/attendees are encouraged to join the hearing from a secure and quiet location. Ensure that all devices and equipment are connected and working properly. You will need access to a reliable internet connection with adequate bandwidth for video conferencing.

You will need:

At a Hearing

How to join a hearing?

The Tribunal Registrar will send you a meeting invite with a MT Link to access the hearing via Microsoft Teams.

You should join the hearing 10 minutes before the start time to address any potential technical issues and log in. The MT Link to the hearing in your email will resemble the following image:

MS Teams meeting invitation showing the meeting link.

If you already have the Microsoft Teams app downloaded, the hearing should open in the app when you click to join. If you have not downloaded the app, click on the link in the invite and you will be prompted to proceed with a browser version or the option to download the app as shown below.

MS Teams browser showing options to use the Teams app or the web app instead.
MS Teams web page showing options to: Go to Teams app, Download Windows app, or Use teams on Microsoft Edge

From this page, you can open Microsoft Teams in your browser (Google Chrome, Microsoft Edge and Internet Explorer) or download the Microsoft Teams app. If you choose to Join on the Web Instead, you will be brought to a new webpage.

Enter your name to join the proceeding as shown below

MS Teams view of the screen when you join a meeting, showing where to enter your name, the “join now” button, as well as buttons to turn on the camera and mute the microphone.

Using Video and Microphone

To turn your video on, slide the video toggle to the right. In the image below, the microphone is on and the video is off:

The toggle button to turn the video camera on and off in the MS Teams meeting screen.

To turn your video or microphone on or off during a proceeding, click the icon for the webcam or microphone.

In the image below, the video is turned off and the microphone is on. If either or both the microphone or video function are turned off, there will be a strike through the middle of either or both icons. Reminder to Participants – unless you are presenting keep your microphone muted. Reminder to attendees – you are observers only – keep your microphone muted and your camera off unless otherwise directed by the Tribunal.

Buttons in the MS Teams meeting screen showing the icon when the camera is turned off and microphone turned on.

When you click the link to enter, you will automatically be placed into the lobby/waiting room. The Registrar will admit you to join the hearing when it starts.

Breakout Rooms

Within a Team, channels can be set up to function as breakout rooms. These rooms are administered by the Registrar and may be used to permit private discussions or to exclude participants/attendees from the hearing room where necessary, for example, to allow the hearing panel to deliberate, to deal with confidentiality issues, or to excuse witnesses until ready to testify or while relevance or admissibility of witness evidence is argued.

During a hearing parties can

MS Teams allows for up to 4 concurrent Teams rooms (main hearing plus 3 breakout rooms).

While you are in the main hearing room, the Registrar may send you another link to join a separate breakout room via email. That email will have a new link to Join Microsoft Teams Meeting, please follow the same steps as listed above.

The Registrar will contact you with instructions when it is time to rejoin the hearing. You will need to rejoin the hearing via the original hearing invite (see step 2.1 for assistance to join original invite). Please let the Registrar know in advance if you need the breakout room function activated during the hearing.

Raise Your Hand

The Raise Your Hand feature in Microsoft Teams is a useful tool if a participant wishes to make a comment or ask a question without interrupting the hearing.

This feature is not available to members of the public and other attendees.

To raise your hand, click More Options in the control bar.

The Tribunal will be notified when you raise your hand and will give you time to speak when the opportunity arises. Once you have had your chance to speak, the Tribunal will ‘lower your hand’. You can raise your hand throughout the hearing.

Note: While this feature may be used by participants to record objections while another participant is speaking, the Tribunal will not allow it to disrupt the hearing process.

Chat

The Chat feature allows a participant to type messages to other participants during the hearing. These messages will be visible to all participants and should only be used if authorized at the hearing by the Tribunal. This feature is not available to members of the public and other attendees.

To chat in Teams, click the chat icon in the main control bar. The hearing chat window will open on the right side of your screen:

The chat feature will be disabled during witness testimony. Please let the Registrar know in advance if you intend to use the Chat function during the hearing.

MS Teams meeting screen showing that the chat button is located on the lower right side of the screen, as well as the chat box that pops up on the right side of the screen.

Live Captions

Live Captions in Microsoft Teams allows for you to read captions of what is being said during the hearing. Please let the Registrar know in advance if you need live captions during the hearing.

To turn on the live captions feature, click More Options in the main control bar and click Turn on live captions:

Dropdown menu highlighting the “Turn on live captions” option.
MS Teams meeting showing three dots at the upper portion of the screen.

Screen Share

Transferring files or attachments during a virtual hearing in Microsoft Teams is not available. Documents to be filed or shared with other parties at the hearing that have not been previously filed/exchanged should be sent to the Registrar by email. Screen share may be used by parties to display documents either through the Registrar or from their own screens, once granted permission by the Tribunal.

Note: If you choose to “Share Desktop,” any webpage or document you have open could potentially be viewed by all participants/attendees. It is recommended that you only have the files you intend to share open on your desktop.

MS Teams meeting showing a box with downward arrow for screen sharing option.

Any document you intend to share at the hearing must be emailed in advance directly to the Registrar. Please ensure you follow proper Tribunal protocol (including any orders of the Tribunal included in pre-hearing conference memoranda) for document submissions.

Troubleshooting

If Microsoft Teams crashes

If Microsoft Teams crashes, you may see the following error message:

MS Teams meeting invite showing error message.

If you’re in a live Microsoft Teams hearing, close the program and click the link you were provided in your invitation email to rejoin (see step 2.1 for assistance to join the original invite).

If your video or microphone do not work

If you are unable to turn on your video or microphone, open the device settings menu to configure the options accordingly. Contact the Registrar if you are still having problems.

If you are having trouble hearing the participants during the hearing, it is possible that your computer speakers may be turned down or turned off. Please make sure your computer volume or headset is turned on and is loud enough for your comfort. Please advise the panel chair immediately if you continue to experience difficulty.