The Tribunal can hear an appeal of a decision of the Superintendent of Insurance, the Superintendent of Pensions, the Director of Consumer Affairs, the Director of Mortgage Brokers, the Director of Cooperatives, the Director of Unclaimed Property, the Superintendent of Credit Unions, the Superintendent of Loan and Trust Companies, and the Financial and Consumer Services Commission. The Tribunal can review decision of the Executive Director of securities or an exchange, a self-regulatory organization, a quotation and trade reporting system, a clearing agency, an auditor oversight body, a trade repository and a derivatives trading facility under the Securities Act.
The appeal or review is conducted as a hearing de novo, meaning that the parties can present evidence, testify, bring witnesses, and present written and oral arguments at the hearing. The Tribunal’s role is to conduct a fresh analysis of all the evidence to determine whether the decision under appeal or review is correct.
To appeal or seek a review of a decision, you must complete the Notice of Appeal or Review (Form 1) and send it to the Registrar of the Tribunal. The Registrar will review the form, and if it is complete, file it. The Registrar will return a filed copy of the Notice of Appeal or Review to you and provide a copy to the decision-maker whose decision is under appeal or review.
After being served with a Notice of Appeal or Review, the decision-maker has 15 days to prepare and file the Record of the Decision-making Process. The Record contains essentially everything the decision‑maker had when it made its decision.
The purpose of a case management conference is to make sure that all parties are fully prepared and understand what will be expected of them at the hearing. It is also an opportunity to clarify any issues so that the hearing can proceed smoothly and efficiently.
A case management conference has many purposes. It can be used to:
You should review the Record of the Decision-Making Process to determine if it contains all the evidence necessary for the appeal or review. If it does, you will not need to present any additional documents or objects during the hearing.
If you intend to present documents or objects in addition to the Record of the Decision-Making Process, you must provide them to the Registrar of the Tribunal within the time set out in the Rules of Procedure or before the date established by the hearing panel. The Registrar will review the documents for privacy concerns and assign an identification number to each document. The Registrar will then return a copy of the numbered documents to all the parties.
If you do not provide your documents to the Registrar by the required date, you will not be able to present them at the hearing, unless you obtain permission from the hearing panel.
In addition, a document, object or report does not become evidence until it is accepted into evidence by the hearing panel at the hearing.
You may want to testify at the hearing to provide your version of the events. You may also call witnesses to testify at the hearing to support your version of the events.
If you intend to bring witnesses to testify at the hearing, you must complete a Notice of Witness (Form 14), in which you identify your witnesses and provide a short summary of the anticipated testimony of each witness. The Registrar will file it and provide a copy to all parties. The Registrar will advise you of the deadline for providing your Notice of Witness.
If you do not provide a Notice of Witness for a witness or fail to provide a summary of a witness’ anticipated testimony, you will not be able to call that person as a witness at the hearing, unless you obtain permission from the hearing panel.
If a person you intend to call as a witness is reluctant to attend the hearing, you can provide the Registrar with a completed Summons to Witness (Form 7). If it is adequate, the Registrar will return a signed copy to you. When you receive the signed Summons to Witness from the Registrar, you will need to serve it on the witness in accordance with rules 3.4(4) and 3.4(5) of the Rules of Procedure. You will also need to pay attendance fees to the witness as required by rule 8.10(4). When a Summons to Witness is properly served on a witness, the Tribunal can take measures to force the witness to attend the hearing.
You should also determine whether you will call an expert witness. An expert witness is a specialist in a particular field by virtue of their education, training, skill, or experience. An expert witness can provide an opinion about an issue of evidence or fact within the scope of their expertise. The purpose of the expert witness’ testimony or report is to provide assistance to the hearing panel.
If you intend to call an expert witness, you must complete a Notice of Expert Witness (Form 15), in which you identify your expert witness and attach a copy of their expert report. You must also provide your completed Notice of Expert Witness to the Registrar. The Registrar will file it and provide a copy to all parties. The Registrar will advise you of the deadline for providing your Notice of Witness.
It is very useful to provide written arguments before the hearing. This allows you to identify your evidence and to provide your position and arguments.
If you intend to provide written arguments, you must complete a Statement of Position (Form 13) and provide it to the Registrar. The Registrar will provide a copy to all other parties. The Registrar will advise you of the deadline for providing your Statement of Position.
It is important that you prepare for the hearing. The effort you devote to your preparation may have a direct impact on the decision of the Tribunal. You can prepare for the hearing by doing the following:
The hearing dates will typically be set during the case management conference. The Registrar will then issue a Notice of Hearing indicating the location, date and time of the hearing.
A hearing is held before a hearing panel composed of three Tribunal members. The Tribunal members hear the evidence and decide the matter. The hearing in an appeal or a review usually follows the outline set out below.
The hearing panel enters the hearing room and the Tribunal members introduce themselves.
The hearing panel will ask the parties whether there are any preliminary matters. Preliminary matters are issues that need to be addressed and considered before the hearing can continue. Some examples include challenging the jurisdiction of the Tribunal, the absence of a party, and requests for adjournments.
Admissibility of Additional Documents
If the parties presented documents in addition to those contained in the Record of the Decision-Making Process, the hearing panel will address each party's additional documents at the start of the hearing and hear any objections from the other parties regarding these documents. The Tribunal will decide whether the documents can be admitted into evidence. Only the documents accepted into evidence by the hearing panel may be used at the hearing and be considered in the decision.
Testimony of the Parties and Witnesses
The testimony of each party or witness follows a set structure.
The direct examination is when the witness or party provides testimony during the hearing. If you choose to testify at the hearing and have a lawyer, your lawyer will ask you questions and you will answer these questions. If you do not have a lawyer, you can testify by telling your version of the events. If you call a witness, you (or your lawyer) will ask the witness questions.
A party or witness who testified is typically subject to cross-examination. This is when the other party (or the party's lawyer) questions you or your witnesses.
After the cross-examination, follow-up questions resulting from the cross-examination can be asked of the witness or party who testified. If you are self-represented, you can use the re-direct to clarify or provide further details on the testimony you provided during the cross-examination.
The closing argument is your opportunity to explain to the hearing panel why it should decide in your favour. This consists of presenting your arguments and highlighting which evidence supports your position.
At the end of the hearing, the hearing panel will indicate whether the decision will be given that day or sent to the parties at a later date. Typically, the hearing panel will reserve its decision so it has time to fully consider the evidence and arguments. In those situations, the decision will usually be issued in the weeks or months following the hearing.
If you disagree with the Decision of the Tribunal, you may have the option of appealing it or seeking a judicial review.
Final decisions of the Tribunal may be appealed to the Court of Appeal with permission (leave) of that Court. The deadline for filing an application for leave to appeal is 30 days from the issuance of the Decision. Section 48 of the Financial and Consumer Services Commission Act, S.N.B. 2013, c 30 sets out the appeal process.
You may also be able to seek a judicial review of the Decision of the Tribunal. For more information on judicial review, please consult Rule 69 of the New Brunswick Rules of Court.
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