Oral Hearing FAQs

Each party makes an opening statement, to describe the issue(s) under appeal and what they think the EAB should do about it. They will outline the case they intend to make and the shortcomings they see in the cases to be argued by the opposition. Next, the parties present their evidence by submitting documents and having witnesses testify. The parties have the opportunity to ask questions of one another’s witnesses, through cross-examination. Finally, the parties provide closing statements, where they summarize the case, the evidence from their perspective, and try to persuade the EAB how it should decide the appeal.

The usual order of presentation is the appellant(s) first, then the respondent, then third parties. Participants and interveners tend to be placed in order, depending on whether they oppose or support the decision that has been appealed.

Yes, you are responsible for scheduling any witnesses you intend to bring at the hearing. They may need to be flexible in scheduling, as witness’ testimony usually takes longer or shorter than the predicted time, despite best efforts. It is wise to approach your witnesses as soon as possible to begin organizing schedules.

If a witness is unable to attend an in-person hearing, the EAB may authorize them to give their evidence by telephone or video conferencing technology. To ask the EAB to consider this, you will need to explain why the witness cannot reasonably be expected to attend in person, discuss the importance of this witness to the case you intend to raise, and explain why there are no other witnesses who could attend the hearing and provide substantially similar evidence. the EAB will ask for the positions of all parties (and any participants or interveners allows to cross-examine witnesses) and decide whether and how to grant the request.

Yes; no party has exclusive rights to any particular witness. Before asking the employee or agent, however, you should check with the respondent whether that person will be called as a witness for the respondent. If so, you (and any other parties able to cross-examine) will have the chance to ask that employee or agent questions during the hearing.

You can ask the EAB for an order requiring someone to attend a hearing and give evidence as a witness. If you get such an order, you must ensure the witness-to-be gets a copy of the order and to pay applicable fees to the witness-to-be (unless the EAB waives that requirement in your case). The EAB will, if possible, invite the proposed witness to submit an argument on the issue. If they did not have the chance to do so, they can ask the EAB to rescind or “vacate” the order if they believe they have no relevant evidence to offer or if attending the hearing would be a hardship for them.

You can ask the EAB for an order requiring someone to provide you with documents that are relevant to the appeal. The EAB will give the person or organization that owns or possesses the documents in question the opportunity to comment on the order requested.

In order for a witness to provide an opinion on something beyond the everyday education, training or experience of everyday people—on matters beyond estimating age, distance or speed; describing emotional states of others, the physical well-being of people or things, or the value of things—a witness must be certified as an expert. A person may be certified as a witness because of specialized education, training, or experience, beyond that of ordinary people.

In order to have an expert certified to act as a witness, you must first provide a notice of expert testimony or an expert report. If the expert will not testify in person, you can instead provide an expert report. In either case, the notice or the report must be provided to the EAB 84 days before the start of the hearing (when an oral hearing starts or when written submissions are first due).

The EAB’s Rules require each party to provide an outline of their respective cases in a “Statement of Points”, including all relevant documents they will rely on at the hearing. The Rules require that this information must be provided to the EAB and the other parties to the appeal. Although the EAB’s Rules state that an appellant’s Statement of Points is generally due 30 days before a hearing begins and other parties’ Statements of Points are generally due 15 days before the hearing begins, the EAB will confirm the appropriate timeframes in specific circumstances of your appeal.

Yes, unless the EAB rules that it will only consider the information that was before the original decision-maker. This is called an appeal “on the record”. It is rarely, if ever, done.

You will be responsible for ensuring that the appropriate equipment is present at the hearing location. If you want any presentation material to be considered as evidence, you will need to provide it to the EAB and the other parties along with your Statement of Points.

The EAB will do its best to accurately estimate how long an oral hearing will need, based on the particular issues to be argued and the evidence to be presented. The Case Manager assigned to your appeal will work with all parties to ensure that the hearing proceeds efficiently and as quickly as possible, while still ensuring that all parties have the time they need to reasonably present their evidence and arguments and respond to the cases put forward by other parties. Cooperating with the Case Manager will ensure that the hearing unfolds as smoothly as possible.

Yes, although if there is some error or technical issue that prevents the recording of the hearing, the hearing remains valid.

You should include everything you might rely on in the hearing with your Statement of Points. If you discover some relevant information after providing your Statement of Points, you should provide it to the EAB and the other parties as soon as possible, and explain why you were unable to provide it along with your Statement of Points. If you cannot provide the information beforehand, you must ensure that the EAB, every party, every member of the panel, and the court reporter (if there is one) gets a copy before it gets discussed at the hearing.

The panel will decide whether to allow you to include this information with your case. Among the factors the panel will consider is whether you provided it as soon as you could do the other parties and to the EAB.

Yes. You will need to write to the EAB and the other parties, and explain why you think a site visit would help the panel better understand the facts relevant to the appeal. It is important you submit such a request as early as possible, as there may be organizational difficulties. A panel will typically decide whether to conduct a site visit.

If a party, participant, intervener, or witness needs an interpreter or any other accommodation (for example, services to assist the hearing or visually impaired) during a hearing, please let the EAB know at least 30 days before the hearing. The EAB will make every effort to accommodate these requests, so that everyone involved in a hearing can meaningfully participate.