Guide for Self-Represented Litigants

INTRODUCTION

The Law Society Tribunal is an independent adjudicative body that makes decisions based on testimony and evidence in a similar way to courts or other administrative tribunals. Our mandate is to process, hear, and decide regulatory cases about Ontario lawyer and paralegal licensees or licence applicants.

This guide is intended to help licensees or licence applicants who wish to represent themselves in Tribunal proceedings. It includes a general overview of the Tribunal’s hearing process, important information about how to be as prepared as possible for a Tribunal hearing, and a glossary of useful terms.

Please note that the information contained in this guide should not be taken as legal advice, and should be read in conjunction with the Law Society Act, the Rules of Practice and Procedure and the By-Laws, all of which should be carefully reviewed by any self-represented party before proceedings begin.

 

GLOSSARY OF TERMS

Although you may already be familiar with commonly used legal expressions, the Tribunal uses a variety of additional terms and acronyms that are important to understand in order to represent yourself. Click here to read the Tribunal’s Glossary of Terms.

 

BEFORE THE HEARING

In order to prepare, it may be useful to know the stages of a Tribunal proceeding, and what is entailed in each. If you have additional questions, you may direct them to the File Management Coordinator (FMC) assigned to your case; FMCs are well-versed in Tribunal procedure and can answer most questions you may have.

 

A Notice Is Created

The applicant officially starts the proceedings by filing an application package with the Tribunal. In order to file the application package, the applicant must have served all of the below documents with the respondent already. This means that the respondent will know about the application before the Tribunal does.

The application package includes:

• The Notice
• The Information Sheet
• The Confirmation of Service, which verifies that the package has already been served on the respondent

If the Law Society is the applicant (for instance in conduct, capacity or interlocutory proceedings) this process begins only after the Proceedings Authorization Committee has decided that the case merits a hearing. If the licensee or licence applicant is the applicant or appellant (for instance in licensing or appeals proceedings) they can find the relevant forms on the Tribunal website.

 

First Appearances

The first appearance date and type can be found on the Information Sheet. Usually, this will be a proceeding management conference, or PMC. (Though for some types of proceedings, a summary hearing can be scheduled at the outset.)

PMCs give an adjudicator (usually the Chair of the Tribunal) a chance to discuss the case with both parties and describe the possible next steps. It focusses on Tribunal procedure and how the case will be navigated through the system. Nothing needs to be prepared for the initial PMC. Attendance by either the licensee/licence applicant or their representative is mandatory.

If more preparatory work is to be done, the Chair will schedule another PMC. If the case is ready to advance to the next stage, a pre-hearing conference, or PHC, will be scheduled instead.

Unlike PMCs, PHCs focus less on procedure and more on the content of the parties’ cases, for instance, working towards an agreed statement of facts. The PHC adjudicator will try, wherever possible, to find a mutually agreed-upon solution, so as to avoid having to go to a fully contested hearing.

Both parties must create a memorandum for the PCH, at least one week before the scheduled date. PHC memoranda should be sent to the Tribunal so that it may be passed along to the PHC adjudicator.

At the end of the PHC, if a solution is not reached, the adjudicator will decide if another PHC is warranted, or another PMC, or if the case is ready to proceed to a hearing.

 

Representation

Volunteer duty counsel may be available to assist self-represented licensees and licence applicants in Tribunal proceedings. If you would like to discuss your case with duty counsel, please email scheduling@lstribunal.ca or call 416-947-3908 as early in the proceedings as possible to make these arrangements. The duty counsel program is independent of the Tribunal and there is no guarantee that duty counsel will be available.

If you do not have legal representation, but you wish to, the Law Society’s referral service can be used to find independent counsel. To obtain a referral, please visit their website.

 

PREPARING FOR YOUR HEARING

Getting ready for your hearing involves a fair amount of work. The more knowledge you have, the better you will be at presenting your case before the Tribunal.

 

Familiarize Yourself with the Rules, By-Laws, and Precedents

Read through the Rules of Professional Conduct or the Paralegal Rules of Conduct and the By-Laws, paying special attention to the ones that are relevant to your case. These can be found on the Tribunal website.

Reading through previous Tribunal decisions is a helpful way to learn more about what past panels decided in similar circumstances, why they made those decisions, and the sorts of outcomes you might expect. Precedent can help you understand how the above legislation and regulation is interpreted by Tribunal panels.

Past Tribunal decisions can be found on the Canadian Legal Information Institute website.

 

Familiarize Yourself with Tribunal Hearing Procedure

Read through the Law Society Act and the Rules of Practice and Procedure, again, paying special attention to the sections that are relevant to your case. Guides to Tribunal Processes can be referred to for specific information on each kind of proceeding as well.

It can be useful, in preparing for your Tribunal hearing, to actually attend a Tribunal hearing. All hearings are open to the public, unless there is special order closing them. Our hearings are currently being held virtually, over Zoom, so attending them is quite convenient. The Tribunal’s website features an upcoming hearings calendar.

To attend a hearing, please e-mail the Tribunal with the details of the hearing you wish to attend so that we may send you the login information.

 

Witnesses

Both parties may call witnesses to support their case. Witnesses can testify to good character, to the alleged behaviour of the respondent, to the veracity of documentary evidence, and much more. Expert witnesses can also be called to testify on technical matters. For example, a medical specialist might be an expert witness in a case about capacity issues. There are special requirements about who can be considered an expert, so if you are unsure, contact the Tribunal.

Witnesses should write and sign an affidavit, explaining what their testimony will be, which should then be filed with the Tribunal and disclosed to the opposing party. This gives opposing counsel a chance to prepare their cross-examination, and briefs the panel on what to expect.

Parties are entitled to submit written affidavit evidence rather than providing evidence by oral direct examination. It is possible to supplement a written affidavit with oral evidence. Submitting affidavit evidence is often convenient and can be a useful way to provide evidence in an efficient and organized way. Where an affidavit is submitted, the other party may orally cross-examine, which can be followed by oral re-direction examination. On important factual matters, oral direct evidence may be more effective than written affidavit evidence.

If you want a person to testify at your hearing and they are not willing to come, you can give them a summons requiring them to attend the hearing. Sometimes a witness will prefer to be summonsed by the Tribunal, because it will make it easier for them to attend the hearing on a workday.

For more information on how to obtain and deliver a summons, please contact the Tribunal. Additional information about witness testimony at the Tribunal can be found in our Practice Direction on Witnesses.

 

Preparing for Direct Examination

A direct examination is the questioning of a witness by the party who has called them to testify. The purpose of direct examination is to bring out evidence to support a fact that the questioning party wants to be proved. Direct examination is most effective if it is organized and relevant to the issues/legal test that arises in your case. Submitting written affidavit evidence is an alternative to direct oral examination.

It is a good idea to practice asking your questions in advance of the hearing, so that both you and your witness are prepared. You can discuss with each witness how they will answer your questions, but remember that it is important that your witnesses testify truthfully, using their own words. If your witnesses sound like they have been coached to give specific answers, their testimony may sound less believable to the panel.

When making your list of questions to ask your witness, be careful not to write leading questions (questions in which the answer is implied, “leading” the witness to the answer that’s being sought). If you do ask the witness a leading question, the opposing party may ask the panel to require that the witness not answer, or the panel may give such answers less weight.

Some more important points in preparing your witness:

• You are not allowed to tell your witness what to say. They must say what they know, and say it in their own words. They will be asked to swear or affirm that their evidence is truthful.
• Your witness cannot read from prepared notes.
• You should caution your witness not to argue with whoever is asking them questions, and to give the answer to a question if they know what the answer is.
• If your witness does not understand the question or does not know the answer to the question they have been asked, they should say so rather than trying to guess an answer. The witness can request that a question be asked again or re-worded.
• Make sure your witness knows that they will be asked questions by the opposing party as well as by yourself. These questions can relate to any relevant matter in the case, not just things that you have asked about. Your witness will need to listen carefully and answer the question that is asked.

 

Preparing to Cross-Examine the Opposing Party’s Witnesses

In addition to your own witnesses, you will be allowed to question the opposing party’s witnesses during cross-examination. The opposing party’s materials will have been disclosed to you prior to the hearing, so you should be able to anticipate and prepare some questions you may have after their direct examination (keeping in mind that new questions may occur to you during the hearing). In cross- examining the opposing party’s witnesses, you are allowed to ask leading questions, just as the opposing party can ask leading questions of your witnesses when they cross examine them.

The panel may put limits on cross-examination. If questions are repetitive or irrelevant, the panel may limit the cross-examination.

 

Preparing Your Opening Statement

At the beginning of the hearing, both parties are given the opportunity to make an opening statement. It is a chance for each party to state their case and give a brief summary of the facts they will try to prove, as well as an overview of the evidence they will be submitting. Most opening statements are just a few minutes long.

It is always best to prepare this opening statement in advance, writing it down and practicing it out loud. You may refer to your notes during the opening statement. If you would prefer to read your written statement directly from your notes, you are permitted to do so.

 

Preparing Your Closing Statement

The Tribunal will ask you to give a closing statement at the end of the hearing. This is an opportunity for you to summarize all the evidence in your favour that has been presented at the hearing and how it relates to the legal principles relevant to the case. You should prepare a draft of your closing statement before your hearing, though you will probably need to make changes to it, based on what happens at the hearing.

 

Compiling a Document Book

It’s a good idea to compile all evidence and documents you’ll be relying on into one book. This allows the panel to follow along and to directly reference any sources you’re citing.

Documents within the document book can include:

• Witness affidavits, or affidavits from people who were not available for the hearing;
• Financial records, e-mails, or contracts;
• Doctor’s notes;
• Good character references;
• Photos/videos/audio recordings (remember that, unless the document is agreed, the person who made the photo or recording must appear as a witness to provide evidence about when and how it was created);
• Costs submissions: whether the panel finds for you or against you, the issue of costs will likely arise, and it’s a good idea to include an accounting of expenses (including for your own hours) you may have accrued in the preparation of the case. If you’re planning to demonstrate financial hardship in order to request a lessened costs order against you, you should include that information in your costs submissions;
• Your book of authorities. This should include past cases you plan to reference in making your argument. A robust understanding of relevant caselaw is crucial in making your case before the Tribunal, as precedent will factor heavily in the panel’s ultimate decision. The Tribunal has a book of frequently cited authorities that you do not need to reproduce in your own book of authorities: https://lawsocietytribunal.ca/tribunal-book-of-authorities/

Please e-mail your document book to the Tribunal, as well as opposing counsel, five business days before the irst day of your hearing. Documents can be delivered up until the hearing day, but delivering them early ensures that the panel has a chance to review and understand your material.

Additional information about serving documents, filing documents and electronic documents can be found among our Practice Directions.

 

Accommodations

An accommodation can mean anything that you need in order to participate fully in the hearing and is linked to a ground protected by human rights legislation, such as disability or family status. Examples include ending the hearing early so you can pick up a child from school or getting an interpreter.

The Tribunal is obligated to provide language interpretation or sign language interpretation to the parties if such services are needed in order for parties to participate fully. These interpreters will attend the hearing and/or PMCs/PHCs as needed.

To request interpretation services, please contact the Tribunal as soon as possible. It is also a good idea to call or e-mail the Tribunal to confirm the interpreter a few days before they will be needed.

If you need any special accommodations, you should make a specific request to the Tribunal well in advance of the hearing.

Additional information about accommodations can be found in our Practice Direction on Accommodation.

 

THE HEARING

The Zoom details of your hearing will be sent to you before the hearing date. Please refer to the Tribunal’s Zoom Hearing Guidelines for tips on presenting yourself before the camera, situating your camera in the room, and correct usage of Zoom software.

Please arrive on time or early for your hearing. You will be placed in a breakout room initially, so that the File Management Coordinator (FMC) can address any last-minute submissions or concerns before the hearing starts. You will then be let into the main room of the hearing, along with the panel, the parties, the FMC, the court reporter, any witnesses who have been called to testify, and, occasionally, members of the media or public who have come to observe the hearing.

 

Preliminary Matters

Before the hearing gets fully under way, the panel chair will also introduce him or herself, along with the rest of the panel members. The chair will also discuss any necessary preliminary matters, as well as details of how the hearing will be conducted.

 

Affirmations

Each party, as well as each witness, will be asked to make an affirmation that all the evidence they give is true. This is similar to the swearing of an oath in court.

 

Opening Statements

After all preliminary matters have been taken care of, it is time for the applicant’s opening statement. If the Law Society initiated the proceedings, their opening statement will include the allegations against the licensee, as well as a summary of the case that will be presented to support those allegations.

Following the applicant’s opening statement, the respondent may give an opening statement as well. This should summarize the respondent’s case, as well as the evidence they plan to use to support their case. The opening statement should be as clear and brief as possible.

 

Applicant’s Direct Examination of Witnesses

If the Law Society is the applicant, they will begin by calling their witness to the stand and questioning them in order to lay out their case against the licensee.

If a witness on the Law Society’s side testifies about something they have no direct knowledge of (for example, about something that they heard from a person who is not testifying at the hearing), you may ask the panel to disallow or to exclude it.

You may also wish to object if the opposing party’s witness tries to give testimony or introduce documents that were not disclosed to you prior to the hearing. If you are taken by surprise, you can bring this to the attention of the panel, which may refuse to allow the introduction of the new evidence or give you some extra time to respond to it.

 

Cross-Examination of the Applicant’s Witnesses

After each of the applicant’s witnesses testify, you will have the opportunity to ask questions as your own cross-examination. While you are not allowed to ask leading questions of your own witnesses, you can ask leading questions to the witnesses of the opposing side. In cross-examination, any type of question is allowed as long as it’s relevant to the case.

 

Re-direct Examination

After the respondent has cross-examined the applicant’s witness, the applicant is allowed one more opportunity to question their witness. This is a chance for them to ask about any new information that was brought up during the cross-examination. Questions during redirect must be related to issues that arose during the cross-examination or a question from a panel member.

 

Respondent’s Witnesses

After the applicant is finished questioning their witnesses, it is your turn to call your own witnesses.

You should begin the questioning of your witnesses by asking them to state, for the record, their name and relationship to you. You may then begin the questions you have prepared to help them explain their knowledge of the facts that support your case.

Keep in mind as you are conducting your direct examination of your witness that you must not ask leading questions. If your witness seems to have forgotten something that you expected them to say, you may ask them questions to jog their memory, or even show them pieces of evidence and ask, for example: “Do you recognize this pay stub?” or “Did you receive this e-mail?”

Sometimes one of the adjudicators on the panel will interrupt your questioning to ask their own question instead of saving their questions until after the parties ask all of their questions. This is nothing to worry about; it is simply the adjudicator engaging with the witness and trying to clarify the case you are presenting.

Before you are finished questioning your witness, briefly review your notes to make sure that you’ve asked all of the questions you intended to, and that your witness has given all of the information that you intended. The more prepared you and your witness are, the less likely that you will find that you have missed essential information.

After your direct examination, the applicant will have a chance to cross-examine the witness. Take note of any further questions this cross-examination raises that you’d like to ask your witness—you will have one last opportunity to question your witness during your re-direct examination.

 

Closing Statement

Following the evidence portion of the hearing, the Tribunal will ask each side to make a closing statement. During your closing statement, panelists may ask you questions about your case, particularly if there are areas in which they have concerns. Try to answer these questions by referring to the testimony and documents that support your case.

If any weak spots in your case have been revealed, try to address them directly during your closing statement, rather than pretending they do not exist. For example, if the trustworthiness or credibility of your witnesses has been questioned by the Law Society, explain why your witnesses should be trusted.

Your closing statement is also good time to raise Tribunal caselaw that supports your case. Explain why your case is similar to a prior Tribunal decision, and explain why the decision-making in that case should apply to your own.

 

TYPES OF HEARINGS

Conduct hearings

Conduct hearings have two parts. The first part of the hearing addresses whether or not the licensee has engaged in misconduct. This is called the merits phase. If misconduct is found, there is a second part of the hearing which called the penalty phase.

It is common that the panel reserves its decision in the merits phase and that, if misconduct is found, the penalty phase is then scheduled. However, if misconduct is admitted or the panel is able to decide whether the licensee has engaged in misconduct without reserving its decision, the penalty phase may proceed immediately. 

The same process is followed in both the merits and the penalty phase. Opening statements are made by both parties, evidence is introduced, and closing statements are made by both parties. Costs are usually addressed as part of the penalty phase.

 

Licensing hearings

Unlike conduct hearings, licensing hearings only have one phase. After the hearing is completed, the panel decides whether the applicant is currently of good character. The decision may be made immediately or may be reserved.

 

Capacity hearings

Capacity hearings may have one or two phases. First, the panel must first decide whether the licensee is incapacitated. If it decides that the licensee is incapacitated, the panel must then decide what capacity order should be made. Sometimes the panel hears the evidence and submissions on these two questions at the same time. Sometimes the panel will decide whether the licensee is incapacitated before hearing the parties arguments regarding a possible capacity order.

 

THE FINAL DECISION

The panel has a few options at the end of a hearing. It may announce its decision, make an order, and give the reasons orally.

More often, the panel announces its decision, makes an order, and reserves the reasons for that decision, choosing to release a written version of the reasons at a later date. Written reasons are usually authored by the panel chair, in consultation with the other panelists. These reasons are then edited and formatted by Tribunal staff. The process of writing, editing and publishing reasons can take several months.

Sometimes the panel will reserve its decision as well as its reasons, choosing to release the order along with the written reasons at a later date.

Orders and reasons are posted on the Tribunal website, except when a special order is made marking them as ‘Not Public’. When a final decision is made in your case, you will learn about it via e-mail one business day before it is published on the Tribunal website.