Selection of Oral versus Written Representations under Section 128
This policy addresses the criteria that the Board will consider when deciding to provide opportunity for oral or written representations.
In its initial years, the Board chose to provide potentially adversely affected parties the opportunity for full oral representations under Section 182 of the Forest Practices Code of British Columbia Act or, currently,section 128 of the Forest and Range Practices Act . As a result of its experience with oral representations, the Board is of the view that written representations can provide a fair alternative to the oral representation process. The written process is also, in most cases, a more cost-effective process for all parties.
II. Criteria for making a decision about oral or written representations
Section 128 states:
“If it appears to the board that there may be sufficient grounds for making a report or recommendation under this Act that may adversely affect a party or person, the board must inform the party or person of the grounds and must give the party or person the opportunity to make representations, either orally or in writing at the discretion of the board, before it decides the matter.”
The legislation allows the Board to decide if a report may adversely affect a party. Once the Board decides a party may be adversely affected, the Board must provide that party with the opportunity to make representations. The legislation also provides the Board the discretion to decide whether the form of representations is oral or written.
In exercising its discretion about whether representations are oral or written, the Board wants to ensure consistency in how it decides between oral and written representations. Therefore, the Board looked at factors used in administrative law, as well as other considerations in selecting criteria for ensuring consistency.
When considering if tribunals should conduct oral hearings, COURTS have stated that certain factors favor oral hearings.
Impact of a decision on a person
The impact of a decision on the party is a relevant factor to consider in deciding if an oral hearing should be held. The major potential impact of Board reports is the possible impact on one’s reputation. If a Board report will have serious consequences for a party’s reputation, an oral hearing may be more justified than if the report finds minor problems. Situations warranting the consideration of an oral proceeding would include those where the report:
- contains a number of major findings of non-compliance on substantive issues;
- becomes a second or third negative report against the same company;
- seriously impacts the company’s market position; or
- could otherwise significantly impact the company.
Credibility of a witness
In order to judge credibility of witnesses, an oral hearing allows the tribunal to see the witness, and judge demeanor and depth of knowledge. The courts have cited questions of credibility as being a factor favouring an oral hearing, particularly where important rights are at stake. Therefore, in situations where the credibility of an important witness is in question the Board should consider an oral hearing.
Some courts have ruled that a tribunal has breached the rules of fairness when making a binding penalty decision on the basis of contradictory evidence without an oral hearing.
Although an oral hearing is not mandatory, if the Board faces a great deal of contradictory evidence, that circumstances may favour an oral hearing. However, if Board staff provided the subject extensive opportunity to consult and comment on such contradictory evidence, the need for the Board to provide oral representation opportunities may be reduced.
Complexity, or consideration of maps and photos, that requires discussion between parties and decision-maker.
Some courts have ruled that tribunals should consider whether the issues involved are complex or new, and therefore require “real-time” back-and-forth discussion to get to the root of the matter. A case may also require all parties to be in the same room, to allow meaningful discussion of maps and photos that are in front of everyone at the same time. Therefore, if the case involves complex evidence or complex legal/policy issues, an oral proceeding may be appropriate. If Board staff have given the subject extensive opportunity to consult and comment the need for oral representation is reduced.
Will significant new information become available through oral hearings that would otherwise not become available? Is there a reason this information was not brought forward earlier in the process?
If an oral hearing will make it possible for the subject to present significant new information that was not presented earlier, this may favour an oral proceeding. However, the subject of a Board report will often have a number of opportunities to respond to the issues underlying a potentially adverse comment before the formal representations stage. In such situations the Board may ask why this new information was not provided earlier in the process.
Time and cost savings of written proceedings
The use of written proceedings in certain situations can provide time and cost savings without reducing the fairness of a proceeding. This process can eliminate travel time and costs for those making representations, as well as for Board members and staff. Written proceedings can also take less time to complete.
For situations where it is determined that a written proceeding will not reduce time and costs, oral proceedings should be used. As well, use of telephone communication to support written proceedings can help in situations where simultaneous oral communication is necessary and a visual component is not needed.
Degree of urgency to complete the report versus other Board priorities and workload and the impact on Board time and resources.
In the past, the Board provided auditees oral hearings as a matter of course, without unduly impacting Board activities. However, as Board workload grows, this will not always be possible. The urgency of completing a report and the impact on Board time and resources are reasonable factors to consider.
Did the person involved request an oral or written hearing, and provide sound reasons for it?
Since the subject of the report is dealing with a report that may adversely affect it, the subject’s preference is an important factor. If the company feels a certain type of proceeding is fairer, that needs to be considered, particularly if sound reasons are presented for that preference. Specifically, if a person has not requested an oral hearing, this is significant. The Board probably does not want to force people unwillingly into a more extensive proceeding than necessary. On the other hand, if the person requests an oral hearing, that should also be considered, along with other factors.
Does the person have an ability to prepare and present a written argument?
Some persons will not be equipped to present a logical and persuasive written argument and may be more comfortable speaking to their issues, rather than writing a brief. This may be a relevant factor to take into account.
It should be noted that Section 128 oral hearings would not normally be open to the public because of concern for the reputation of the persons involved.
The Board will consider the following questions when making decisions as to whether to conduct oral or written representations under Section 128 of the Forest and Range Practices Act:
- What is the impact of the decision on the person?
- Is the credibility of a witness in question?
- Is there contradictory evidence?
- Does the case involve complexity, or consideration of maps and photos that requires discussion between parties and decision-maker?
- Will significant new information become available through oral hearings that would otherwise not become available? Is there a reason it was not brought forward earlier in the process?
- Will a written proceeding actually save time and money for the adversely affected parties and the Board members?
- What is the degree of urgency in completing the report? What is the impact on other Board priorities and workload? and, What is the impact on Board time and resources?
- Did the person involved request an oral or written hearing, and provide sound reasons for it?
- Does the person have an ability to prepare and present a written argument?
The Board will generally support written representations unless the above factors support an oral hearing. In all cases the Board will choose a representation that is fair to the adversely affected parties.