Electronic Evidence and E-Litigation in Regulatory Tribunals


This paper describes a range of current practices, priorities, trends and aspirations among selected administrative tribunals, particularly in Ontario, in relation to electronic evidence, and electronic litigation, based on a recent, informal survey.1

What is readily apparent is that different tribunals are at widely different stages in the process of adapting to the challenges and opportunities presented by the digital age in litigation. Less easy is the task of understanding why these differences arise, in terms of the circumstances and priorities of different tribunals; how the most successful initiatives in this area have come about; and what patterns emerge to guide ongoing efforts towards innovation?

Much has been written on these issues in the context of court proceedings, particularly in relation to e-discovery in civil proceedings, and electronic search and seizure in criminal cases. Compendious statutes, rules, guidelines and some case law now exist to inform adjudication of disputes in those two discreet areas. However, very little existing literature or case law explores the extension or application of these emerging principles and rules in a tribunal context. Still less do they address areas in which tribunals are increasingly taking the lead over our courts in e-litigation issues, including e-disclosure in enforcement proceedings, on-line access to records of proceedings, and electronic hearings. Most important, the policies underlying (and impeding) these initiatives at the tribunal level – access to justice, fairness, the cost of innovation, efficiencies in the adjudicative process, the “open tribunal” principle, and tribunal effectiveness, to name but a few – must be identified in order to evaluate existing initiatives, and to establish priorities for ongoing improvement.

This paper offers only modest, early contributions to the tasks at hand.

First, it reports some recent legislative changes, tribunal rules and precedents, and internal administrative practice innovations at selected Ontario tribunals, that illustrate the potential for digital innovation in tribunal litigation, as well as some pitfalls. This review is organized according to the following stages common to the process of various tribunals:

  1. Investigation and electronic records;
  2. E-disclosure in enforcement proceedings;
  3. Electronic document production and exchange (e-discovery);
  4. Electronic hearings and electronic evidence;
  5. Deliberation, collaboration, and tribunal decision-making; and
  6. Electronic access to tribunal records and proceedings.

Second, the discussion of these initiatives notes significant ways in which the principles applied in court proceedings have been or can be extended to tribunals, as well as ways in which specific tribunals currently do things differently. It notes that many of the more recent innovations are taking place in tribunals that are expanding their enforcement and compliance activities, and highlights some common themes and challenges identified by the tribunal members, staff, and practitioners surveyed. It also highlights implications for lawyers and paralegals who appear as advocates before tribunals.

1. Investigation and Electronic Records

Several tribunals have recently updated, or are in the process of updating, their e-investigation regime, including resources, techniques, policies, rules and even the authorizing statutes involved.

This is particularly seen among the major economic regulators that have a significant enforcement or compliance jurisdiction, such as securities commissions and energy boards, but others involve strictly administrative functions. In the case of employment matters, workplace investigations may either be initiated at the early stages of an arbitration or tribunal process, or they may be entirely private, contractual undertakings. This describes a wide spectrum of legal contexts, which of course affects both the nature and formality of the investigations involved, and their legal analysis.

At the enforcement end of this spectrum, the legal analysis should start with the increasingly detailed guidance found in the Criminal Code and related case law. The emerging criminal jurisprudence is guided by the protection of privacy interests against unreasonable search and seizure under s. 8 of the Charter. It has long been recognized by the Supreme Court that privacy interests may be given lesser protection in the context of regulated businesses.2 In addition, many administrative investigative measures are less intrusive than their Criminal Code counterparts. Nevertheless, I would argue that important principles drawn from the criminal cases and statutes can be applied in a tribunal context, particularly in respect of the treatment of electronic data and devices.

For example, R. v. Morelli3 established that, not surprisingly, there is a high expectation of privacy in a personal computer seized from a residence. Fish J commented that “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.” Then in R. v. Cole,4 the same concern was applied when an employer seized an employee’s workplace laptop computer and CDs containing images and temporary internet files. The Court held that an employee also has a reasonable expectation of privacy relating to personal use of a work-issued laptop, because the nature of the information stored can be meaningful, intimate, and connected to the individual’s core privacy interests. While the employer’s personnel policies, guidelines, and rules can diminish this privacy interest, it has been held that they do not eliminate it entirely.5 These principles are general in nature, and can surely be expected to be applied when similar issues arise in the context of administrative investigations or inspections.

Some criminal case law relating to the authorization of searches of computers also seems to be readily applicable to tribunals. For example, R. v. Jones6 requires a high degree of specificity in a warrant for the search of a computer. It requires that the authorization focus not simply on the computer as a thing to be seized, but rather on what could be searched for on the computer, once it is in the control of investigators. The Court suggests the authorization should detail the type of evidence sought, rather than the types of files or folders that could be examined.

Similarly, in R. v. Vu,7 the Court held that a warrant to search a location must be explicit in order to authorize the search of a computer found at that location. While acknowledging that generally a warrant to search a specified location includes authorization to examine any receptacle or object found which may contain the evidence sought, the Court held that “our law of search and seizure [should not] treat a computer as if it were a filing cabinet or a cupboard”. Investigators must demonstrate that a computer search is justified, including the grounds for believing that the computer contains the information sought. The Supreme Court concluded that, in effect, “the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place”. Since the warrant descriptions of equipment and documentation that could be seized in this case did not describe either the two computers or the cell phone in issue, it was held that the evidence derived from those devices was illegally obtained.

It should surely be expected that tribunals will also be required to show clear, express statutory authority, as well as specific authorization language, setting the parameters for any search of computers or similar electronic devices that could be expected to contain private information, such as the employer-issued laptop computer in R. v. Cole, iPads and smartphones.

However, regulators may wish to take steps in their rules and practices to expressly distinguish certain computer systems that are expected to be dedicated to the regulated business, for example because they are represented or required to be in place as a basis for obtaining a license. If an appropriate regulatory regime is in place, it could be argued that privacy issues either do not arise at all, or are much reduced, and that inspection of certain business systems or production of data from them should be available without the formalities of a warrant.

Another issue of general application is addressed by the Supreme Court in R. v TELUS Communications Co.,8 although not by majority on all points. That case deals with access to e-mails or text messages from a telecommunications service provider. It considers whether these messages are “private communications” within the meaning of s. 183 of the Criminal Code, and how they may be “intercepted” (or “acquired”) in more than one location, including the telecommunication provider that is the “conduit” for their transmission.  Unfortunately, the decision does not address whether “interception” includes acquisition after the messages are stored. Again, a caution for administrative investigators and tribunals should be to ensure that their statutory and authorization language includes authority for “interception” of such messages, if necessary. Absent such statutory authority, the Ontario Superior Court of Justice, applying common law criteria, refused to issue a “Norwich Order” to compel production by a telecommunications service provider of cell phone records and text messages. Those documents were alleged to be relevant to disciplinary proceedings by a charitable health care provider, involving an allegedly improper sexual relationship between one of its employees and one of its clients.9

The Ontario Securities Commission (“OSC”) is involved both in criminal and administrative investigations, which raises the need for additional internal controls to maintain appropriate separation between the two. It is currently updating its investigative methods for both. A key part of this initiative for administrative investigations will be the inclusion of rule amendments prescribing the formats in which electronic documents are to be produced to the OSC by regulated securities market participants. It is expected that the new rules will be based on existing initiatives by the Alberta Securities Commission (“ASC”) and by the US Commodities Futures Trading Commission (“CTFC”).

Noteworthy in both the ASC and CTFC rules,10 and critical for the investigative stage, are the various requirements to produce electronic documents in their “native” formats, and specifically to do so in a manner that preserves the “metadata” of the original records that are commonly relevant to the tribunal’s proceedings. This includes, for example, the dates and times of audio file recordings of telephone calls related to securities market activities. These provisions mirror similar provisions in civil e-discovery guidelines and case law, relating to the preservation and production of relevant metadata in the context of civil disputes.

In other respects, these rules adopt and expand upon requirements previously found, for example, in Criminal Code provisions such as ss. 487(2.1). That provision permits a person authorized by warrant to search a computer system to:

  1. “use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;
  2. reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;
  3. seize the print-out or other output for examination or copying; and
  4. use or cause to be used any copying equipment at the place to make copies of the data.”

Subsection 487(2.2) goes on to require every person in control of such computer system to permit the person carrying out the search to use it or cause it to be used “to search any data contained in or available to the computer system for data” specified in the warrant, “to obtain a hard copy of the data and to seize it,” and to copy it electronically.

This type of provision is necessary in many circumstances to ensure that investigators have access to electronic data in the systems in which it is created and stored. To be effective, investigators need to know what kind of data they are looking for, and they need either their own technical staff or the co-operation of on-site technical staff, in calling that data up for review and copying. However, many existing statutes that empower tribunals in relation to inspections or investigations contain more limited authority. For example, recent revisions to the Ontario Energy Board Act11 result in separate provisions empowering inspectors (ss. 105-112), as distinct from investigators (ss. 112.01-112.06), although both may be appointed by the Ontario Energy Board (“OEB”). Under this scheme, an inspector is authorized to make copies of electronic data or to require that copies “be provided to him or her on paper or in a machine-readable medium or both.” By contrast, the authority to directly “use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or evidence … in any form” is only available to an investigator, and only then where a specific warrant has been obtained.12 It would seem unfortunate if the express provision for “use” of the systems in the case of investigations were interpreted to exclude authority to make similar “use” of core business systems in the course of routine regulatory inspections.

All tribunals, but particularly those that have significant powers of investigation for enforcement or compliance purposes, need to consider carefully whether and how to incorporate similar requirements, format protocols, and capabilities into their own statutory regime, rules, authorization practices, and investigative resources.

The same complex electronic document format and evidentiary considerations that arise in formal investigations may, however, also arise even for tribunals or agencies at the extreme administrative end of the spectrum with less intrusive powers. For example, the Law Society of Upper Canada’s (“LSUC”) Trustee Services department now has to deal with a variety of electronic records when it takes over the practice files and accounts of a deceased or incapacitated member. The court orders that the LSUC routinely obtains for this purpose are increasingly required to detail these issues. Recent orders authorize and require the LSUC to take possession of “all practice-related materials or client property of any kind whatsoever,” including “electronic data and any electronic devices containing” such materials. The orders also require financial institutions and other third parties to provide financial records of the member “be they stored in printed, electronic, magnetic or any other form.” They require any person with possession or knowledge of “information about or access to” electronic data or devices containing client information or financial records to cooperate with the LSUC. They also define “electronic devices” to include “computers, external storage devices, smartphones, or any other device capable of storing” such information electronically, “whether or not such device also contains [the member]’s personal data.” These orders give the LSUC broad powers to manage, store and distribute, all such materials and/or wind up the practice of the member without further order of the court.

In order to access, store, analyze, and otherwise manage these electronic data collections appropriately, tribunals of every kind increasingly require access to expert staff and specialized equipment. The critical choice of whether to develop these resources in-house, or to contract for them case by case, seems to be driven by various considerations. The number and complexity of cases managed by the OSC has caused that Commission to develop a sophisticated capability in house. The specialized nature of law firm IT, as well as the importance of solicitor client privilege and trust funds, is a key factor in the LSUC’s decision to keep its resources in-house. By contrast, the OEB, which has fewer compliance cases that are usually somewhat less complex, uses externally contracted resources.

In one recent case, the OEB made use of a specialized IT forensics group established elsewhere within the Ontario government. The development of this kind of resource on a basis that can be shared by various smaller agencies and tribunals may be an important option, as a means to overcome the cost barriers to innovation that many tribunals face. However, it could raise issues about ownership, confidentiality and protection of the data collected, record retention, and the ability to establish the chain of custody and integrity of the data from the point of seizure to its introduction in evidence. These issues should be addressed in a protocol or in the statutory scheme.

2. E-disclosure in Enforcement Proceedings

The increasing use by tribunals of rules encouraging production and seizure of documents in electronic form, and particularly in native formats that preserve the metadata relevant to an anticipated evidentiary hearing, has implications for the subsequent disclosure process.

In enforcement and compliance proceedings, the OSC and OEB both already make disclosure, primarily in electronic form. In the case of the OEB, paper documents gathered in the course of an inspection or investigation process are typically reproduced in searchable PDF format, so that the entire disclosure process is electronic. This is a by-product of the OEB’s regimes for electronic document production and exchange, electronic hearings, and for access to the record of its proceedings over the internet, which are described below. These procedures make use of the searchable PDF format for a number of reasons: that format combines both the document image and searchable text: it can be read with a wide range of software, including programs that are free; and it can be loaded directly, or readily converted for loading, into most of the more commonly used litigation support software programs.

The rules and practices of both the OSC and the OEB also recognize, at least implicitly, a requirement to disclose any metadata gathered electronically that will be relied upon as relevant to the proceeding. This flows directly from the existing rules of both tribunals, which among other things define the “documents” to be disclosed to include relevant electronic documents of any kind.13 If the conversion of a document from its native format to a standard, such as PDF, would omit or destroy relevant metadata, then either the document should be disclosed in its native format, or the relevant metadata should also be disclosed by some other means. In practice, both tribunals recognize this requirement in appropriate cases.

Notably, however, these highly developed processes reflect the fact that both the OSC and the OEB in enforcement proceedings deal primarily with sophisticated market participants, who are usually represented by capable private counsel. The LSUC, by contrast, often deals with unrepresented solo or small firm members, as well as lay complainants, who have no interest or capability to receive disclosure electronically. Although changes are under consideration, currently, disclosure is available from the LSUC primarily in hard copy only. The same is true, so far as I am aware, in most if not all other professional disciplinary tribunals in Ontario, although there are recent indications that some are in transition.

I would anticipate that changes in this area will be driven first by the increasing use of electronic investigation methods. This is because it surely makes no sense today to print up in hard copy all the fruits of such investigations for disclosure, if a regulator does not need to do so. However, another major driver is likely to be changes in the pre-hearing and hearing processes adopted by tribunals, which are discussed below. To be effective, any methods ultimately adopted need to be consistent from the earliest investigative or originating process, through the pre-hearing and hearing process, to the ultimate decision-making and record preservation stages.

3. Electronic Document Production and Exchange

Document production and exchange usually occur whenever a tribunal is adjudicating a contested process involving two or more parties. In a tribunal context, the inclusion of electronic documents in this process can raise all of the same issues that arise in the disclosure process, discussed in the previous section of this paper, and in the e-discovery process in our civil courts.

There is ample case law and literature on e-discovery issues that arise in a court setting, and it need not be reviewed here. The present focus is whether and how some of the problems raised by these issues can be addressed in a tribunal context.

In that regard, the most obvious problem is that of potentially disproportionate e-discovery requirements that has arisen in some civil cases, as a result of a pre-trial requirement to search all possibly relevant electronic sources. What is perhaps most interesting are the ways that two very different processes for document production and exchange in senior Ontario tribunals avoid this problem.

Before the Ontario Labour Relations Board (“OLRB”), the basic production requirement is found in Rule 8.3 of its Rules of Procedure. That Rule simply requires each party to exchange and file, not later than 10 days before the hearing, one copy “of all documents upon which it will be relying in the case”. Obviously, even without any specific mention in the Rule, that obligation could include any electronic document, including any metadata, on which the party wishes to rely. As such, the decision whether to include such materials or not rests, in the first instance, with the producing party. However, the OLRB process does permit any party to bring a motion for a direction requiring additional document production from another party. Given the timing of the production obligation in Rule 8.3, just prior to a hearing, these motions for production are typically heard by the hearing Panel of the OLRB. As such, that Panel is in a position to make an informed assessment of the relevance (or otherwise) of the request, and also take into account any impacts on the hearing schedule or other considerations of disproportionate burden in making a decision on the motion.14

A slightly different approach is used by the OEB, but to the same effect. In proceedings governed by its general Rules of Practice and Procedure,15 an applicant must pre-file written evidence to support its claims. Any further document production by another party or intervenor is then obtained on request by filing interrogatories under Rules 26 and 27. Pre-filed evidence, interrogatory questions, and responses must all be filed with the OEB, both in hard copy and electronic (PDF) format, as the pre-hearing process unfolds. Where any request is refused on any ground, or made subject to conditions (for example, regarding confidentiality), a motion to compel production or impose appropriate terms is available, and again is typically brought before the Panel that is seized ultimately with determining the proceeding on its merits.

The OLRB procedure is designed for discreet, contractual disputes, usually between two private parties. The OEB procedure also accommodates diverse and often far-ranging inquiries, in which many parties and intervenors with widely differing interests can participate. Nevertheless, by vesting control of document production in the hearing panels, both production regimes adopted by these tribunals appear to have largely avoided the problems of disproportionality and cost that have arisen in civil e-discovery cases before our courts. The tribunal seized with the hearing is usually in the best position to assess relevance, and other matters that go into a proportionality analysis. Another factor, perhaps, is the fact that the lawyers who appear before these tribunals regularly are specialized, often well known to each other, and well known to the tribunals concerned. This creates some pressure to approach issues reasonably and in a manner that solves problems, rather than seeking to exploit them.

Other tribunals looking to expand the use of e-discovery techniques in their proceedings will do well to consider these and perhaps other models.

4. Electronic Hearings and Electronic Evidence

The first way in which digital technology increasingly affects tribunal hearings is in relation to the hearing process.

Under ss. 5.1 and 5.2 of the Statutory Powers Procedure Act,16 a tribunal whose rules make provision for such may hold a “written hearing” or an “electronic hearing.” In the case of “electronic” hearings, ss. 5.2(4) provides that during such a hearing, “all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing.” For the most part, use of this authority to hold “electronic” hearings by Ontario tribunals appears to involve hearings by conference telephone call. Most tribunals surveyed do not appear to make use of this authority, beyond occasional hearings by conference call, usually on procedural issues.

The Rules and practice of the OEB in regard to written and oral hearings are quite typical in most respects, but its use of electronic hearing technology is increasing.

Under the OEB Rules, the definition of “writing” includes electronic media, and the definition of “electronic hearing” includes a hearing held by conference call “or some other form of electronic technology allowing persons to communicate with one another.” These provisions suggest some overlap between holding a hearing in writing or electronically. They also acknowledge the availability of electronic means of communication other than a conference telephone call.

Implicit in these definitions, I suggest, are a number of important hearing choices that are not developed in any tribunal Rules so far as I am aware. These include:

  1. whether to limit the “hearing” to pre-filed material, including submissions;
  2. whether such pre-filed material might include audio, or audio-visual recordings of pre-hearing proceedings, such as a technical conference under the OEB’s Rule 25, or pre-hearing examinations of witnesses;
  3. whether to include provision for any additional oral communication among counsel, witnesses, and the hearing Panel, either in relation to evidence, or to submissions, or both;
  4. whether to also include provision for any visual connection among counsel, witnesses and the hearing Panel during the evidence, or the submissions, or both;
  5. whether to allow for examination of witnesses, either pre-hearing and filed as part of the written evidence, or as part of a live audio or audio-visual hearing process, or both; and
  6. how, if at all, to provide for any public access to the hearing process.

In practice, the authority provided under the OEB’s Rule 4, which allows hearing Panels to tailor procedural orders to the particular circumstances of a given case, has been used to create a wide range of hearing procedures. These have involved an increasing use of electronic communication technologies, especially during the pre-hearing stages. However, in one recent OEB hearing, the Panel also arranged to hear the oral evidence of an expert who was out of the jurisdiction at the time, by video-conference.17 LSUC discipline proceedings have allowed similar arrangements, including allowing one party absent from the jurisdiction to make oral submissions using Skype. Another very recent LSUC procedural order made provision for one day of a lengthy forthcoming hearing to be held at an undisclosed location at which certain witnesses had taken refuge to avoid deportation, with provision that those proceedings “will be video conferenced or webcast to a hearing room” at the LSUC.18

The second way in which digital technology potentially affects tribunal hearings is in relation to digital evidence. This survey did not identify any examples of tribunal decisions addressing such issues. However, there seems to be no reason to expect that the experience of tribunals will be materially different than that of the courts, either in relation to the issues encountered, or the frequency with which they arise (which in both contexts seems to be rarely).

In general, electronic documents are not different in kind from paper documents in terms of their evidentiary value or use. Take as an example the recent case law dealing with the use of Facebook postings, particularly in personal injury insurance litigation. Although the existing cases have mostly arisen at the discovery stage,19 the anticipated use of this kind of evidence at trial is surely straightforward: screenshots of the relevant posts will be printed up, and put to the plaintiff in cross-examination as a series of admissions against interest.20 The same approach will apply, for example, to most defamatory publications on the internet, and to most other electronic evidence issues that arise in practice.21 The key issues for examining counsel and the tribunal will be to show how the document is relevant to the case; how the relevant aspects of the document can be connected to, and identified by, one or more witnesses in the case; whether those relevant aspects can be proven with a hard copy print-out of the document, or only by putting an electronic copy into evidence; and whether it is necessary to use experts to either prove the electronic document in evidence, or to display any of its demonstrative evidentiary qualities.

In most cases, it will only be if an electronic copy must be proven that special problems might arise. For example, in the defamatory website example, if there is something interactive on the website which contributes to the defamatory impact of the published words, then counsel may have to display the website interactively (if it is still live on the internet) or recreate its relevant interactive features in the hearing room (if it has been taken down). The case of relevant metadata is similar: counsel will likely have to introduce in evidence an identical copy of the electronic document (preferably in its native format, with the metadata demonstrably intact) and display the relevant metadata through an appropriately informed witness (usually the investigator or forensic expert who seized or copied it from the computer systems in which it was found). Another commonly cited example is deleted data, that has been forensically recovered from the computer systems in which it was created and later deleted. All these examples, to a greater or lesser degree, require an element of expertise on the part of the witness who introduces the document, to confirm that the exhibit copy is an accurate and complete copy or representation of the original, and to demonstrate the relevant features or content of the document before the trier of fact.

In some cases, a tribunal will have an advantage over our courts in assessing and using this kind of evidence. This may be so either because of its expert knowledge of the business or other context in which the document is originally created, or because of its ability to act on evidence that may not be strictly admissible as evidence in a court.22 In addition, tribunals may anticipate that the same or similar types of electronic evidence will be relevant to proceedings before them. They will, therefore, have an opportunity in some circumstances to develop rules or decision criteria regarding the proof of particular kinds of electronic evidence that they expect or require in particular cases.

5. Deliberation, Collaboration, and Tribunal Decision-Making

Electronic evidence and processes could also offer a number of potential benefits to tribunal members in the course of deliberation and decision-making.

For many tribunals with members who live and work across the province, it makes the record much more portable. It also allows the use of numerous electronic resources to share documents, and work collaboratively on a decision from remote locations. At a more basic level, it saves the cost, inconvenience, and environmental impacts of making, and ultimately storing, numerous paper copies. It would allow better security for tribunal records and hearing materials, by enforceable electronic means. It could also reduce related travel costs and delays in decision-making, by allowing participation by tribunal members in the entire post-hearing process via remote electronic connection.

These benefits of course assume that tribunal members can work effectively together by remote electronic means, and are willing to learn the programs and techniques that would enable them to do so. They may be of greater or less interest to different tribunals, depending upon composition and the decision-making process they currently follow.

6. Electronic Access to Tribunal Records and Proceedings

In my experience, the benefits of electronic litigation that are easiest to achieve, and perhaps the most significant to parties, counsel, tribunals and the public, relate to the provisions for electronic access to proceedings.

A leader in this aspect of e-litigation, so far as I am aware, is the OEB. The key to its success appears to involve three relatively simple innovations. First, the OEB has adopted a guideline for electronic filing of all regulatory documents.23 This guideline adopts as the standard document format the readable .pdf, described above, and it is routinely applied by procedural order both to documents filed in advance, and to exhibits marked during hearings before OEB Panels. Second, the OEB arranges, at its cost, for daily transcripts to be prepared for all hearings before it, and provides electronic copies in standard formats to be e-mailed to all parties and intervenors involved in the hearing. Third, the OEB makes all these materials publicly available on its website, in real time as a given hearing proceeds.

The OEB’s hearing arrangements also typically include simultaneous live audio streaming of oral proceedings over its website.

Obviously, these arrangements have required an investment by the OEB in its website, and specifically in a portal for e-filing, as well as an organized facility for web-publishing all documents related to a given proceeding. They also involve accepting and internalizing the cost of the daily transcripts. However, the benefits to parties and their counsel, and to any members of the public or other stakeholders who wish to follow a given proceeding, are enormous.

In that context, the OEB’s system seems to work well, and generally to have the support of both the stakeholders and their counsel who are regularly involved in its proceedings. A similar system is being implemented by the OSC, and the model is worth serious consideration by all other tribunals who preside over a regulated business or professional sector. No doubt cost concerns will be a major consideration, although in general a diminishing one as technology costs decline, especially for proven systems. Another battleground may be the issue of public access, as many professional bodies, in particular, continue to resist public scrutiny and to downplay the benefits that flow from an open, public process.

Another side-benefit, however, is the cost saving realized in terms of preserving and storing the record of the tribunal’s proceedings. This is resolved in most cases simply by using the web-record as the permanent archive of each proceeding, and moving it to an archive off-line (which may either be web-accessible, or not) as its immediate public interest fades. In some cases, this has become the standard way for tribunals to operate internally, so that any non-public records of counsel for the tribunal or its members can also be stored electronically if so advised.


Many tribunals in Ontario appear to be moving towards increasing use of digital evidence and litigation support methods at all stages of their proceedings.

Although there has been little co-ordination, and the current priorities of each tribunal seem to be different, the most successful innovations today appear to have the potential for broader application and adoption by other tribunals. The potential benefits for a tribunal affect everything from evidence gathering to informing the public about what tribunals do. They include benefits for parties, for counsel and others who appear before tribunals, for tribunal members, and for the public and other stakeholders.

This survey suggests the time is right for greater exchange of information and coordination in the assessment and adoption of these innovations, to overcome cost barriers and maximize the benefits involved.

 * Philip Tunley is a partner at Stockwoods and  his practice covers a wide range of commercial and Public Law litigation. His public law practice is grounded in four years as counsel with the Ministry of the Attorney General of Ontario. While acting as counsel with the Attorney General, Phil specialized in constitutional litigation and regulatory prosecutions. Finally, Phil has appeared as lead counsel before all levels of the Ontario and Federal courts and the Supreme Court of Canada, as well as a variety of administrative tribunals and ADR procedures.

  1. All credit and thanks are due to the tribunal members, staff and practitioners who took the time with me to share their knowledge, experience and insights about these topics. You know who you are.   However, the views and analysis in the paper are those of the author, and in no way represent the views or analysis of any of the tribunals referred to. Similarly, all responsibility for oversights and flaws in the analysis presented here rests entirely with the author.
  2. See for example Comité paritaire de l’industrie de la chemise v Potash, [1994] 2 SCR 406.
  3. R v Morelli, [2010] 1 SCR 253.
  4. R v Cole, [2012] SCJ No 53.
  5. See R v Gomboc, [2010] 3 SCR 211.
  6. R v Jones, 2011 ONCA 632.
  7. R v Vu 2013 SCC 60, [2013] 3SCR 657.
  8. R v TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3.
  9. Community Living v TBay Tel et al., 2011 ONSC 2734.
  10. The text of the ASC rule and a staff explanatory notice can be found here:
    The CFTC rule can be found here:
  11. Ontario Energy Board Act, SO 1998, c 15, Schedule B.
  12. Ibid, ss 108(6),112.02(1).
  13. See for example the definition of “document” in Rule 1.01 of the OEB’s Rules of Practice and Procedure for Enforcement Proceedings.
  14. A similar process is also applied in labour arbitrations pursuant to s. 49(12(b) of the Labour Relations Act, SO 1995 c 1, Schedule A.
  15. Ontario Energy Board, Rules of Practice and Procedure(Revised November 16, 2006, July 14, 2008, October 13, 2011, January 9, 2012, January 17, 2013 amd April 24, 2014), online: OEB <http://www.ontarioenergyboard.ca/oeb/_Documents/Regulatory/OEB_Rules_of_Practice_and_Procedure.pdf>. The Board also has separate rules for enforcement proceedings, available here:
  16. Statutory Powers Procedure Act, RSO 1990, c S22, as amended.
  17. Horizon Utilities Corporation, EB-2014-0002.
  18. LSUC v Hohots, Order dated November 19, 2014 and Reasons, November 21, 2014, available online:
  19. A convenient and excellent summary is found in David Campbell’s article, “#OMG-Evidence! The law of discovery of social media in personal injury cases”, (Fall 2014), The Advocates’ Journal, 29.
  20. See for example the recent criminal case admitting such evidence at trial in R v Nde Soh, 2014 NBQB 20 (CanLII).
  21. For electronic evidence issues, generally, Underwood and Penner’s text, Electronic Evidence in Canada, is a useful resource, and the Uniform Law Conference of Canada prepared a useful “Uniform Electronic Evidence Act, 1998” which addresses some of these issues, and can be found here: <http://ulcc.ca/en/uniform-acts-new-order/older-uniform-acts/749-electronic-evidence/1924-electronic-evidence-act>.
  22. For example, under ss 15(1) of the Statutory Powers Procedure Act.
  23. The current version is available here: <http://www.ontarioenergyboard.ca/oeb/_Documents/e-Filing/RESS_Document_Guidelines_final.pdf>.

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