RULES OF PROCEDURE | PART C: APPEALS

[Pursuant to sections 11.8 (Reviews of Membership Approval Hearings) and 24.6.3 (Reviews of Disciplinary Hearings) of By-law No. 1]

Rule 16 | Rule 17


RULE 16: COMMENCEMENT OF AN APPEAL

16.1  Notice of Appeal

(1)  Disciplinary Hearings – An Appellant shall commence an appeal by serving on every other party and filing a single copy of a Notice of Appeal within 30 days of the effective date of service of the decision under appeal.

(2)  Membership Application Hearings – Either an Applicant or the Corporation may commence an appeal by serving on all other parties and filing with the Secretary a Notice of Appeal within 21 days of the effective date of service of any decision of the Hearing Panel made pursuant to section 11.6 of MFDA By-law No. 1.

16.2  Contents of Notice of Appeal

(1)  The Notice of Appeal shall contain:

  1. a statement of the relief sought;
  2. a brief summary of the grounds for the appeal; and
  3. a list of the exhibits and transcripts from the hearing that the Appellant believes are required for the appeal.

16.3  Respondent’s Notice of Required Evidence

(1)  Within 15 days of the effective date of service of the Notice of Appeal, each Respondent may serve on every other party and file a single copy of a Respondent’s Notice of Required Evidence listing any additional exhibits and transcripts from the hearing that the Respondent believes are required for the appeal.

RULE 17: APPEAL MATERIALS

17.1  Contents of the Appeal Record

(1)  Disciplinary Hearings – The Appeal Record shall be prepared by the Secretary and contain copies of the following:

  1. the Notice of Appeal;
  2. the Respondent’s Notice of Required Evidence;
  3. the Notice of Hearing;
  4. the Reply;
  5. the decision and reasons appealed from;
  6. the order appealed from;
  7. any other orders and decisions made in the proceeding; and
  8. all of the exhibits and transcripts listed in the Notice of Appeal and in any Respondent’s Notice of Required Documents that the parties believe are required for the appeal.

(2)  Membership Application Hearings – The Appeal Record shall be prepared by the Secretary and contain copies of the following:

  1. the Notice of Appeal;
  2. the Notice of Required Evidence;
  3. the Request for Membership Application Hearing;
  4. the Applicant’s Statement;
  5. the Response;
  6. the decision and reasons appealed from;
  7. the order appealed from;
  8. the proposed disposition;
  9. any other orders or decisions made in the proceeding; and
  10. all of the exhibits and transcripts listed in the Notice of Appeal and the Notice of Required Documents, if filed, that the parties believe are required for the Appeal.

17.2  Costs and Procedure for Ordering Transcripts

(1)  Within 45 days of the effective date of service of the Notice of Appeal, each party shall serve and file a single copy of a document showing proof that all of the transcripts that the party believes are required for the appeal have been ordered from the transcribing agency.

(2)  When a transcript has been completed, the transcribing agency will notify all of the parties and the Secretary in writing.

(3)  Each party shall serve and file, or arrange for the transcribing agency to deliver to every party and the Secretary, a copy of a transcript ordered by the party within 10 days of receiving notice from the transcribing agency that the transcript has been completed.

(4)  Each party is responsible for paying the costs of obtaining the transcripts that the party believes are required for the appeal. Where two or more Appellants or Respondents require the same transcript, they may agree to share the cost of obtaining the transcript.

17.3  Completed Appeal Record and Date of Appeal

(1)  The Secretary shall provide each party with a copy of the Appeal Record and written notice of the appeal date:

  1. within 21 days of receiving the last transcript required for the appeal; or
  2. where no transcripts have been ordered by any party, within 40 days of the effective date of service of the Notice of Appeal.

17.4  Appeal by way of an Agreed Statement of Facts

(1)  Where the parties intend to proceed on appeal by way of an Agreed Statement of Facts, they shall notify the Secretary in writing of their intentions.

(2)  Notwithstanding that the parties intend to proceed by way of an Agreed Statement of Facts, a Respondent shall comply with Rule 16.3 and all parties shall comply with Rule 17.2.

(3)  The parties will make arrangements with the Secretary to obtain access to or copies of any exhibits required to prepare the Agreed Statement of Facts.

(4)  The parties shall file the Agreed Statement of Facts, which may include copies of any exhibits and transcripts:

  1. within 40 days of receiving notice from the transcribing agency that the last transcript required for the appeal has been completed; or
  2. within 60 days of the effective date of service of the Notice of Appeal, where no transcripts have been ordered by any party.

(5)  Where the parties reach an Agreed Statement of Facts, the Appeal Record shall contain the items in Rule 17.1(1)(a) to (f), together with the Agreed Statement of Facts, and the Secretary shall provide each party with a copy of the Appeal Record and written notice of the appeal date within 14 days of the Agreed Statement of Facts being filed.

(6)  Where the parties are unable to reach an Agreed Statement of Facts, they shall notify the Secretary in writing and the Secretary shall provide each party with a copy of the Appeal Record, containing all of the items in Rule 17.1, and written notice of the appeal date within 21 days of the last day on which the parties could have filed an Agreed Statement of Facts.

17.5  Written Argument

(1)  The parties shall prepare a written argument which shall contain:

  1. a statement of the issues to be argued on the appeal;
  2. the facts and law relied upon, with reference to any supporting materials in the Appeal Record; and
  3. the relief sought.

(2)  The written argument shall not exceed 25 pages in length, double-spaced, unless the Appeal Panel permits otherwise.

(3)  The written argument shall be served and filed as follows:

  1. by the Appellant, within 30 days of receipt of the Appeal Record;
  2. by the Respondent, within 30 days of the effective date of service of the Appellant’s written argument.

(4)  The Appellant may serve and file a supplementary written argument not exceeding 5 pages in length, double-spaced, in response to any new issues raised in the Respondent’s written argument, within 7 days of being served with the Respondent’s written argument.

(5)  A party should serve and file a Case Book, containing copies of any cases, articles or other materials referred to in its written argument or that the party intends to rely on at the appeal, at the same time as the party serves and files its written argument and, in any event, no later than 5 days prior to the appeal.

17.6  New Evidence

(1)  No party shall introduce evidence on an appeal which was not before the Hearing Panel whose decision is under appeal without the permission of the Appeal Panel, which may permit the introduction of such evidence on any terms it considers appropriate.

(2)  A party who intends to request permission to introduce evidence on an appeal which was not before the Hearing Panel whose decision is under appeal:

  1. shall, not later than 60 days prior to the appeal date, serve on all other parties to the appeal a sworn statement of the evidence and attach as exhibits any related documents; and
  2. shall not file the statement with the Secretary prior to the appeal date and, in any event, without the permission of the Appeal Panel.

17.7  Failure to Comply with Appeal Procedure

(1)  Where a party fails to comply with a required step in the appeal procedure in a timely manner or at all, the Appeal Panel may:

  1. waive compliance with the step;
  2. place terms on the party’s obligation or right to perform the required step or any other step in the appeal;
  3. grant, dismiss, or adjourn the appeal, in whole or in part and with or without terms; or
  4. make any other order it considers appropriate.

(2)  The Appeal Panel may impose costs on any party to an appeal, regardless of the outcome of the appeal, where the party has, in the opinion of the Appeal Panel, unreasonably required any transcripts or exhibits from the hearing to be included in the Appeal Record.