RULES OF PROCEDURE | PART B: DISCIPLINARY HEARINGS

[Pursuant to Sections 20 (Disciplinary Hearings), 24.1 (Power of Hearing Panels to Discipline) and 24.4 (Settlement Agreements) of MFDA By-law No. 1]

Rule 7 | Rule 8 | Rule 9 | Rule 10 | Rule 11 | Rule 12 | Rule 13 | Rule 14 | Rule 15


RULE 7: COMMENCEMENT OF PROCEEDINGS

7.1  Notice of Hearing

(1)  Disciplinary hearings pursuant to sections 20 and 24.1 of MFDA By-law No. 1 shall be commenced by a Notice of Hearing signed by an officer of the Corporation.

(2)  The Notice of Hearing shall be served, in accordance with Rule 2.4, on every Respondent at least 30 days prior to the commencement of the hearing or the date of the first appearance in the hearing, unless a Hearing Panel orders otherwise.

(3)  In the case of an individual who is named as a Respondent, the Notice of Hearing shall be served on the Member or Members concerned.

7.2  Contents of the Notice of Hearing

(1)  The Notice of Hearing shall:

  1. identify the date, time and location of the hearing or the first appearance in the hearing;
  2. state the purpose of the hearing;
  3. identify the authority pursuant to which the hearing is held;
  4. provide a summary of the facts alleged and conclusions drawn by the Corporation on which the Corporation intends to rely at the hearing;
  5. contain the provisions of sections 20.2 (Reply), 20.3 (Acceptance of Facts and Conclusions) and 20.4 (Failure to Reply or Attend) of MFDA By-law No. 1;
  6. describe the penalties and costs which may be imposed on the Respondent pursuant to sections 24.1 and 24.2 respectively of MFDA By-law No. 1;
  7. notify the Respondent of the right to be represented by counsel or agent;
  8. notify the Respondent of the right to appear at the hearing, to make submissions, to call, examine and cross-examine witnesses and to present evidence; and
  9. include any other information that the Corporation considers appropriate.

7.3  Failure to Attend Hearing

(1)  Where a Respondent fails to attend the hearing on the date and at the time and location specified in the Notice of Hearing, the Hearing Panel may:

  1. proceed with the hearing without further notice to and in the absence of the Respondent; and
  2. accept the facts alleged and conclusions drawn by the Corporation in the Notice of Hearing as proven and impose any of the penalties and costs described in sections 24.1 and 24.2 respectively of MFDA By-law No. 1.

RULE 8: REPLY TO NOTICE OF HEARING

8.1  Requirement to Reply

(1)  A Respondent shall serve on every other party and file a Reply within 20 days of the effective date of service of the Notice of Hearing.

8.2  Contents of Reply

(1)  Subject to sub-Rule (2), the Reply shall:

  1. identify the facts alleged and conclusions drawn by the Corporation in the Notice of Hearing which the Respondent,
    1. admits,
    2. denies, with a summary of the grounds for denying them,
    3. denies, because the Respondent has no knowledge of them, and
  2. state any additional facts and conclusions on which the Respondent intends to rely at the hearing.

(2)  Where the Respondent admits all or substantially all of the facts alleged and conclusions drawn by the Corporation in the Notice of Hearing, the Respondent may state in the Reply circumstances in mitigation of any penalty to be imposed.

8.3  Acceptance of Facts and Conclusions

(1)  A Hearing Panel may accept as proven any facts alleged or conclusions drawn by the Corporation in the Notice of Hearing that the Respondent does not specifically deny in the Reply in accordance with Rule 8.2(1)(a)(ii) and (iii).

8.4  Effect of Failure to Deliver a Proper Reply

(1)  Where a Respondent fails to serve and file a Reply in accordance with the requirements of Rules 8.1 and 8.2, the Hearing Panel may do any one or more of the following:

  1. proceed with the hearing without further notice to and in the absence of the Respondent;
  2. accept the facts alleged and conclusions drawn by the Corporation in the Notice of Hearing as proven and impose any of the penalties and costs described in sections 24.1 and 24.2 respectively of MFDA By-law No. 1;
  3. order that the Respondent pay costs, at any stage of the proceeding, regardless of the outcome of the proceeding and in addition to any other penalties and costs imposed on the Respondent, in an amount which reflects the extent to which, in the Hearing Panel’s discretion, the hearing will be or has been unnecessarily prolonged or complicated by the failure of the Respondent to deliver a proper Reply;
  4. prohibit, restrict, or place terms on the right of the Respondent to call witnesses or present evidence at the hearing.

(2)  Where a Hearing Panel determines that a Reply contained false or misleading statements, or differed in a material way from the position taken by the Respondent at the hearing, the Hearing Panel may, regardless of the outcome of the proceeding and in addition to any other penalties and costs imposed on the Respondent, order that Respondent pay costs in an amount which reflects the extent to which, in the Hearing Panel’s discretion, the hearing was unnecessarily prolonged or complicated by the failure of the Respondent to deliver a proper Reply.

RULE 9: PRE-HEARING CONFERENCES

9.1  Initiation of a Pre-hearing Conference

(1)  At any time prior to the commencement of the hearing of a proceeding on its merits, a party may request a pre-hearing conference by serving on every other party and filing a Request for a Pre-hearing Conference.

(2)  There shall not be more than one pre-hearing conference in a proceeding, except on consent of the parties or by order of a Pre-hearing Conference Officer or a Hearing Panel.

(3)  A Request for a Pre-hearing Conference shall include the party’s proposal as to the form of the pre-hearing conference pursuant to Rule 9.3.

(4)  A party may object to the proposed form of a pre-hearing conference by advising all other parties and the Secretary in writing of the grounds for the objection within two days of the effective date of service of the Request for a Pre-hearing Conference.

(5)  Where the parties are unable to resolve the objection, the Pre-hearing Conference Officer assigned to the matter shall determine the form of the pre-hearing conference, having regard to the factors set out in Rule 5.1(3).

(6)  The Secretary shall notify the parties of the date, time, location and form of the pre-hearing conference.

9.2  Pre-hearing Conference Officer

(1)  A pre-hearing conference shall be held before a Public Representative of a Regional Council sitting as a “Pre-hearing Conference Officer”.

(2)  A Pre-hearing Conference Officer shall not be a member of any subsequent Hearing Panel which presides over the hearing of the proceeding on its merits or any step in the same proceeding, unless all parties consent in writing.

(3)  A Pre-hearing Conference Officer may preside over more than one pre-hearing conference in the same proceeding.

9.3  Form of the Pre-hearing Conference

(1)  A pre-hearing conference may be held in person or as an electronic hearing.

9.4  Pre-hearing Conference Materials

(1)  In advance of the pre-hearing conference, the Secretary shall provide each party with a Pre-hearing Conference Form on which to record information which may be relevant to a consideration of the issues in the proceeding.

(2)  Each party shall provide every other party and the Secretary with a copy of the completed Pre-hearing Conference Form at least two days prior to the pre-hearing conference.

(3)  The Pre-hearing Conference Forms shall not form part of the public record of the proceeding and may be returned to the parties by the Pre-hearing Conference Officer at the conclusion of pre-hearing conference.

9.5  Issues to be Considered

(1)  The Pre-hearing Conference Officer may consider any issue that may assist in the just and expeditious disposition of the proceeding, including:

  1. the settlement of any or all issues in the proceeding, including penalty and costs;
  2. the simplification or clarification of any issues;
  3. the disclosure of documents, including expert reports;
  4. any facts or evidence that the parties agree upon;
  5. identifying any issues as to the admissibility of evidence;
  6. identifying any preliminary objections and scheduling any preliminary motions;
  7. the date by which any steps in the proceeding are to be taken or begun;
  8. identifying and scheduling any anticipated steps in the proceeding; and
  9. any other procedural or substantive matters.

9.6  Orders, Agreements and Undertakings at a Pre-hearing Conference

(1)  A Pre-hearing Conference Officer may make such procedural orders with respect to the conduct of the proceeding as the Pre-hearing Conference Officer considers appropriate.

(2)  Any orders made by the Pre-hearing Conference Officer, and any agreements and undertakings made or given by the parties, shall be recorded in a memorandum prepared by the Pre-hearing Conference Officer, circulated to the parties for comment, and then approved and signed by the Pre-hearing Conference Officer and distributed to the parties.

(3)  Every memorandum recording orders, agreements and undertakings made or given at a pre-hearing conference shall be filed with the Secretary and may be made available to a Hearing Panel.

(4)  Any orders, agreements, and undertakings made or given at a pre-hearing conference are binding on the parties, unless a subsequent Pre-hearing Conference Officer or a Hearing Panel orders otherwise.

9.7  Pre-hearing Conference not Public

(1)  A pre-hearing conference shall be held in the absence of the public.

(2)  Any documents, exhibits and transcripts pertaining to a pre-hearing conference shall not be made available to the public, except a memorandum prepared in accordance with Rule 9.6.

(3)  Every memorandum recording orders, agreements, and undertakings made or given at a pre-hearing conference shall be drafted in a manner which gives effect to the principle that pre-hearing conferences are to be conducted in the absence of the public.

9.8   No Communication to a Panel

(1)  All oral or written statements made at a pre-hearing conference are without prejudice.

(2)  No communication shall be made to a Panel of any oral or written statements made at a pre-hearing conference by the parties or a Pre-hearing Conference Officer, except as may be disclosed in a memorandum made pursuant to Rule 9.6.

RULE 10: DISCLOSURE OF DOCUMENTS

10.1  Obligation to Disclose Documents and Items – Corporation

(1)  The Corporation shall, as soon as reasonably practicable after service of the Notice of Hearing, and in any case at least 14 days prior to the commencement of the hearing of the proceeding on its merits, provide the Respondent with copies of all documents, and a list of items other than documents, that the Corporation intends to rely on at the hearing.

(2)  The Corporation shall make available for inspection by the Respondent any item referred to in sub-Rule (1).

10.2  Obligation to Disclose Additional Documents and Items – Respondent

(1)  A Respondent shall, as soon as reasonably practicable after service of the Notice of Hearing, and in any case at least 14 days prior to the commencement of the hearing of the proceeding on its merits, provide the Corporation and any other Respondent with copies of all documents and a list of all items, other than those already provided by the Corporation, that the Respondent intends to rely on at the hearing.

(2)  A Respondent shall make available for inspection by the Corporation or any other Respondent any item referred to in sub-Rule (1).

10.3  Failure to Disclose Documents or Items

(1)  If a party fails to provide a document, or make an item available for inspection, in accordance with Rules 10.1 and 10.2, then the party may not rely on the document or item at the hearing without permission of the Hearing Panel and on such terms as the Hearing Panel considers appropriate.

10.4  Corporation’s Duty to Disclose

(1)  Nothing in this Rule 10 derogates from the Corporation’s obligation to make disclosure as required by common law, as soon as reasonably practicable after service of the Notice of Hearing.

10.5  Order and Directions Concerning Disclosure and Inspections

(1)  The Hearing Panel may at any stage of the proceeding make orders and issue directions with respect to the timing and manner of the disclosure of documents and the inspection of items, on such terms as it considers appropriate.

RULE 11: WITNESS LISTS AND STATEMENTS

11.1  Provision of Witness Lists and Statements

(1)  Subject to Rule 12, a party to a proceeding shall provide every other party with:

  1. a list of the witnesses the party intends to call at the hearing of the proceeding on its merits; and
  2. in respect of each witness named on the list, other than a Respondent who has already provided a statement recorded by the Corporation, either:
    1. a witness statement signed by the witness; or
    2. a transcript of a recorded statement made by the witness; or
    3. if no signed witness statement or transcript referred to in sub-Rules (i) and (ii) is available, a summary of the evidence that the witness is expected to give at the hearing.

(2)  Where a Respondent intends to testify to matters which were not disclosed by the Respondent in any prior recorded statements provided to the Corporation, the Respondent shall provide every other party with a signed witness statement in respect of the additional matters.

(3)  The parties shall comply with the requirements of sub-Rules (1) and (2) at least 14 days prior to the commencement of the hearing.

11.2  Contents of Witness Statements

(1)  A witness statement, transcript of a recorded statement or summary of the expected evidence of a witness required by Rule 11.1 shall contain:

  1. the substance of the evidence the witness is expected to give at the hearing; and
  2. the name and address of the witness or, in the alternative, the name and address of a person through whom the witness can be contacted.

11.3  Failure to Provide Witness List or Statement

(1)  If a party fails to comply with Rule 11.1, the party may not call the witness at the hearing without permission of the Hearing Panel and on such terms as the Hearing Panel considers appropriate.

11.4  Incomplete Witness Statement

(1)  A party may not call a witness to testify to matters not disclosed pursuant to Rule 11.2 without leave of the Hearing Panel and on such terms as the Hearing Panel considers appropriate.

RULE 12: EXPERT WITNESS

12.1  Expert’s Report

(1)  A party that intends to call an expert witness shall provide every other party with a signed copy of the expert’s report at least 60 days prior to the date of the hearing.

12.2  Expert’s Report in Response

(1)  A party who intends to call an expert witness to respond to the expert witness of another party shall provide a signed copy of the expert’s report at least 20 days prior to the date of the hearing.

12.3   Content of Expert’s Report

(1)  An expert’s report shall contain:

  1. the name, address and qualifications of the expert; and
  2. the substance of the expert’s opinion.

12.4  Failure to Provide Expert’s Report

(1)  A party that fails to comply with Rules 12.1, 12.2 or 12.3 may not call the expert as a witness or rely on the expert’s report at the hearing without permission of the Hearing Panel and on such terms as the Hearing Panel considers appropriate.

RULE 13: CONDUCT OF DISCIPLINARY HEARINGS

13.1  Rights of a Respondent

(1)  A Respondent is entitled at the hearing of a proceeding on its merits:

  1. to attend and be heard in person;
  2. to be represented by counsel or an agent;
  3. to present documentary evidence;
  4. to call and examine witnesses;
  5. to cross-examine opposing witnesses; and
  6. to make submissions.

13.2  Order of Presentation

(1)  The order of presentation at the hearing of a proceeding on its merits shall be as follows:

  1. The Corporation shall make an opening address and the Respondent may either make an opening address immediately following the Corporation’s opening address or prior to presenting its case in (c) below, but not both;
  2. The Corporation shall present its evidence and examine its witnesses and the Respondent shall be permitted to cross-examine each of the Corporation’s witnesses, subject to Rule 13.4;
  3. The Respondent shall present its evidence and examine its witnesses and the Corporation shall be permitted to cross-examine each of the Respondent’s witnesses, subject to Rule 13.4; and
  4. The Corporation may present any evidence and call any witnesses in reply to any issues raised for the first time by the Respondent during the presentation of its case in (c) above, and the Respondent shall be permitted to cross-examine any such witnesses called by the Corporation, subject to Rule 13.4;
  5. The Corporation, followed by the Respondent, shall make a closing argument and the Corporation shall be permitted to reply to any issues raised by the Respondent.

(2)  Following the cross-examination of any witness, reply examination by the party that called the witness is permitted but only in respect of matters raised for the first time in cross-examination.

(3)  In addition to any questions asked during the examination or cross-examination of a witness, the Hearing Panel may ask questions of the witness, subject to the right of all parties to ask questions of the witness regarding any matters raised by the Hearing Panel.

(4)  Where there are two or more Respondents separately represented, the order of presentation shall be as directed by the Hearing Panel.

13.3  Evidence by Witnesses

(1)  Subject to Rule 13.4, a witness at a hearing shall provide oral testimony under oath or affirmation.

(2)  The Hearing Panel shall exercise reasonable control over the scope and manner of questioning of a witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter at issue in the hearing.

13.4  Evidence by Sworn Statement

(1)  The Hearing Panel may allow the evidence of a witness or proof of a particular fact or document to be given by sworn statement unless an adverse party reasonably requires the attendance of the witness at the hearing for cross-examination.

13.5  Where a Respondent Fails to Attend a Disciplinary Hearing

(1)  Where a Respondent, having been served with a Notice of Hearing, fails to attend the hearing of the proceeding on its merits, the Hearing Panel may proceed in accordance Rule 7.3.

13.6  Orders Excluding Witnesses

(1)  The Hearing Panel may order that one or more witnesses be excluded from the hearing until called to give evidence.

(2)  An order under sub-Rule 13.6(1) may not be made in respect of a party or a witness whose presence is essential to instruct counsel or agent for a party, but the Hearing Panel may require any such party or witness to give evidence before any other witnesses are called to give evidence.

(3)  Where an order is made excluding a witness from the hearing, there shall be no communication to the witness of any evidence given during his or her absence from the hearing until after the witness has completed giving evidence, except with leave of the Hearing Panel.

13.7  Interpreters

(1)  If a party requires an interpreter in a language other than English or French, the party shall notify the Secretary and provide an interpreter at the party’s own expense.

(2)  If a witness requires an interpreter in a language other than English or French, the party calling the witness shall notify the Secretary and provide an interpreter at the party’s own expense.

(3)  An interpreter shall be competent and independent and shall swear or affirm that he or she will interpret accurately.

RULE 14: SETTLEMENT AGREEMENTS

14.1  Contents of Settlement Agreements

(1)  A Settlement Agreement made pursuant to section 24.4.1 (Settlement Hearings) of MFDA By-law No. 1 shall be in writing and signed by the parties and contain:

  1. a statement of the relevant facts;
  2. a statement of the violations admitted to by the Respondent, with reference to any specific By-law, Rule or Policy of the Corporation or any applicable statutory provision, and a statement as to future compliance therewith;
  3. the consent and agreement of the Respondent to the terms of the Settlement Agreement, including the penalties and costs to be imposed on the Respondent;
  4. a statement that the Respondent waives all rights to any further hearing, appeal and review;
  5. a statement that the Settlement Agreement is conditional upon acceptance by the Hearing Panel; and
  6. such other matters not inconsistent with (a) to (e).

RULE 15: SETTLEMENT HEARINGS

15.1  Settlement Hearing Date

(1)  Upon entering into a Settlement Agreement, the Corporation shall request a date for the settlement hearing from the Secretary.

(2)  The Secretary shall give written notice of the settlement hearing date to all parties.

15.2  Notice and Public Access

(1)  Except where a settlement is reached after the commencement of the hearing of a proceeding on its merits, a Hearing Panel shall not consider a Settlement Agreement unless at least 10 days notice of the settlement hearing has been given by the Corporation in the same manner as a notice of penalty pursuant to section 24.5 (Publication of Notice and Penalties) of MFDA By-law No. 1 specifying:

  1. the date, time and place of the settlement hearing; and
  2. the purpose of the settlement hearing with sufficient information to identify the Member or person involved and the general nature of the allegations which are the subject matter of the settlement.

(2)  A Hearing Panel may, on its own initiative or at the request of a party, order that all or part of the settlement hearing be held in the absence of the public, having regard to the principles set out in Rule 1.8.

(3)  Where a Settlement Agreement is accepted, the Hearing Panel shall provide reasons for its decision which, along with the record of the settlement hearing, shall be made available to the public, unless the Hearing Panel is of the opinion that all or part of the reasons and the record of the settlement hearing should not be made available to the public, having regard to the principles set out in Rule 1.8.

(4)  Where a Settlement Agreement is not accepted, the Hearing Panel may provide on its own initiative, and shall provide at the request of a party, reasons for its decision and the Hearing Panel may order that all or part of the reasons and the record of the settlement hearing should not be made available to the public, having regard to the principles set out in Rule 1.8.

(5)  The acceptance or rejection of a Settlement Agreement by a Hearing Panel is final and is not subject to appeal or review pursuant to section 24.6.3 (Reviews of Disciplinary Hearings) of MFDA By-law No. 1.

15.3  Additional Facts Only to be Disclosed On Consent

(1)  The Hearing Panel may advise the parties of any additional facts which it considers necessary to assess the settlement but unless the parties consent, any facts which are not contained in the Settlement Agreement shall not be disclosed to the Hearing Panel.

(2)  If a Respondent is not present at the settlement hearing, Staff may disclose additional relevant facts, at the request of the Hearing Panel.