A right to a hearing when one's legal rights or obligations are poised to be compromised is a fundamental rule of law; often stated by reference to the Latin maxim audi alteram partem. The term is used mostly in the realm of administrative law and administrative tribunals.
In 300 Haro, Justice Sims adopted these words to define hearing:
"[A]ny setting in which an affected person presents arguments to an agency decision-maker.
"[I]n administrative law, the presentation of a case or defense before an administrative agency, with opportunity to introduce evidence in chief and on rebuttal, and to cross-examine witnesses, as may be required for a full and true disclosure of the facts."
First analysis; where does a right to a hearing arise?
In Freguson Mechanical, Justice Norcott adopted these words:
"A hearing is generally defined as a proceeding of relative formality, generally public, with definite issues of fact and of law to be tried, in which parties proceeded against have a right to be heard.
"In order for a proceeding to qualify as a hearing ... the party must have a statutory or regulatory right to be heard by the agency."
This is not entirely accurate. In some exceptional cases (eg. habeas corpus), the right to a hearing may also have developed in the common law, without any statutory foundation.
Further, as to what is a hearing, in People v Hogan, Justice Neville wrote:
"The term hearing is generally understood as meaning a judicial examination of the issues between the parties, whether of law or of fact."
In Wallace, Judge Shaw quoted from Ex parte Anderson in finding:
"[W]e cannot say that the proceeding on February 15, 2007, constituted a hearing. That proceeding consisted solely of a single statement by the trial court revoking Wallace's probation, without hearing any testimony or taking any evidence and without affording Wallace an opportunity to be heard.
"A hearing ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence."
Conversely, as Justice Sims wrote in 300 DeHaro:
"Where, as here, an agency makes a decision based upon one party's unilateral submissions of information and documents, without taking and considering evidence from opposing parties, no hearing occurs."
Far too many tribunals are resorting to documentary hearings, essentially to reduce their workloads, at the price of justice. So many elements of justice are unavailable to citizen-litigants at documentary hearings as to render the process ripe for injustice.
Increasingly, the courts of law are supporting this growing and very regrettable phenomena. Canadian labour relation boards are a clear example.
In 300 Haro, the Court of Appeal of California referred to "documentary hearing" and suggested that they may constitute a hearing if:
"... the agency resolves disputed facts after affording interested parties an opportunity to present evidence."
- 300 Deharo Street Investors v Department of Housing Development, 75 Cal. Rptr. 3d 98 (Court of Appeal of California, 2008)
- Ex parte Anderson, 999 So. 2d 575 (Supreme Court of Alabama, 2008)
- Ferguson Mechanical v. Department of Public Works, 924 A. 2d 846 (Supreme Court of Connecticut, 2007)
- People v. Hogan, 904 NE 2d 1144 (Appellate Court of Illinois, 2009)
- Wallace v. State, 992 So. 2d 797 (Court of Criminal Appeals of Alabama, 2008)