Guidance Papers | GP-7R1: Failure of Hearings to Proceed

1 For clarity, this policy also applies to adjournments.

[September 17, 2015]

Preamble:

The number of instances where hearings into IRS claims have not proceeded on the scheduled dates has steadily increased. The failure to proceed is most often caused by claimants or their counsel requesting a postponement, or failing to attend at the scheduled time. Requests for postponement also occur at the request of other participants (Canada, church entities) but significantly less so.

At this point, more than one in five hearings do not proceed as scheduled. Such failures to proceed have resulted in enormous waste of resources. They seriously impede the Secretariat’s ability to manage the hearing process effectively. They also threaten the ability to conclude the IAP.

Through the Oversight Committee and the Supervising Courts, the Secretariat has been encouraged to put in place procedures to reduce the incidence of rescheduled hearings, including consideration of imposing financial consequences on claimant’s counsel where a failure to proceed at the scheduled time could reasonably have been avoided.

The Secretariat has altered its procedures to assist adjudicators with respect to requests for postponement of hearings.

These guidelines are intended to provide various measures to adjudicators and to encourage a consistent approach among adjudicators. As always, the decision-making authority rests with the adjudicator assigned to the case. This is not a directive; it is intended as guidance.

The New Procedure:

1. Scheduling the Hearing:

1. The Secretariat determines a hearing date based on the availability of the parties and adjudicators;
2. The Secretariat issues a Hearing Set Notification to the parties confirming the date, time and location of the hearing.
3. Under the Accelerated Hearing Process, a hearing can be scheduled and heard even if the mandatory documentation is incomplete.
4. A hearing date will not be scheduled if the claimant cannot be located.
   1. Counsel who have lost contact with their client should inform the Secretariat before the case moves to scheduling.
   2. Counsel may request assistance in locating their client under the Lost Claimant Protocol.

2. Request to Re-schedule:

1. Once the Hearing Set Notification is issued, the parties have two weeks during which they can request to re-schedule the hearing.
2. To request that the hearing be re-scheduled:
   1. Unrepresented claimants must contact their Support Officer.
      • The Support Officer will email the adjudicator, CCing the other parties, Scheduling and the Registry Officer.
   2. Any other participant must email the adjudicator, CCing the other parties, Scheduling, and the Registry Officer.
      • Registry Officer = postponement-reporter@irsad-sapi.gc.ca
3. The Scheduler will re-schedule the hearing according to the availability of the adjudicator and the parties.
4. As in Section 1 above, a hearing will not be re-scheduled if the claimant cannot be located.

3. Request for Postponement – received before the hearing:

1. Requests to postpone or cancel a hearing that are received more than 2 weeks after the Hearing Set Notification is issued, are deemed to be a “Request for Postponement”.
2. Postponements will only be considered by the Adjudicator assigned to the claim.
3. Requests for postponement should provide a specific reason for the postponement, and provide any supporting documentation.
4. To request a postponement:
   1. Unrepresented claimants must contact their Support Officer;
      • The Support Officer will email the Registry Officer, CCing the adjudicator, and the other parties.
   2. Any other participant must email the Registry Officer, CCing the adjudicator, and the other parties.
      • Registry Officer = postponement-reporter@irsad-sapi.gc.ca
5. Upon receiving a request for postponement:
   1. The Registry Officer will:
      • Initiate a “Report on Hearing Postponements” detailing all current and past requests for postponement;
      • Prepare an estimate of costs thrown away (if applicable); and
      • Send a copy of the report to the adjudicator.
   2. The adjudicator will:
      • Arrange to meet with the parties as soon as possible to clarify the reasons for the postponement;
      • Consider the Registry Office’s report and take into account whether previous postponements have been permitted;
      • Hear the request for postponement and consider the following:
        • Was the Hearing Set Notification delivered correctly and in a timely fashion?
        • Are there any unusual circumstances surrounding the scheduling of the hearing that may have made it difficult for any party to attend?
        • Is the request reasonable under the circumstances?
        • Have all reasonable steps been undertaken to ensure the attendance of the absent party?
        • Have all reasonable alternatives been considered that would avoid the postponement?
      • Consult with their DCA.
        • The DCA’s role is to provide advice and promote consistency.
        • The decision to grant or deny remains with the adjudicator.
        • The adjudicator will share the advice given by the DCA and consider submissions of the parties before rendering a Postponement Order.

4. Requests for Postponement -- received on the day of the hearing:

1. In situations where a request for postponement is received on the day of the hearing, the adjudicator will be required to issue an on-the-spot decision to grant or deny the postponement.
2. In this situation, the adjudicator will arrange to meet with the available parties in person (or via teleconference) at the time and place indicated on the Notice of Hearing to consider the reasons for, and circumstances of, the request:
   1. If the request for postponement is due to reasons that are entirely beyond the control of the absentee party, and could not be anticipated or prevented, (such as an accident, sudden illness, or disruptive weather conditions) the adjudicator may grant the postponement without consulting their DCA; however, the DCA should be advised of the postponement as soon as possible. For unrepresented claimants, the adjudicator will contact the Claimant Support Officer to determine whether these reasons apply.
   2. If the request for postponement was predictable, questionable, or part of a pattern of non-attendance, the adjudicator must attempt to consult with their DCA before granting or denying the request.<
      • The DCA’s role is to provide advice and promote consistency.
      • The decision to grant or deny remains with the adjudicator.
      • The adjudicator will share the advice given by the DCA and consider submissions of the parties before rendering a Postponement Order regarding the postponement.

5. The Adjudicator’s Postponement Order:

1. After considering the reasons for, and the circumstances of, the request for a postponement, the adjudicator will issue a Postponement Order in writing to all hearing participants indicating, with reasons, whether the request for postponement is approved, denied or transferred to another process within the IAP.
2. The adjudicator may;
   1. Grant the request:
   2. Grant the request with conditions, which may include:
      • With the consent of the claimant, the re-scheduled hearing will proceed regardless of any further non-attendance by any party other than the claimant.
      • Where a postponement is at the claimant’s request, if the claimant does not attend on the re-scheduled date, the hearing will proceed and, in the absence of evidence to support the claim, the claimant’s application will be dismissed.
      • If counsel bears the responsibility for the postponement, it may be taken into account in assessing fairness and reasonableness of legal fees.
      • Subject to the discretion of the adjudicator, any legal fee adjustment can reflect the costs “thrown away”.
      • The adjudicator may direct that all future Hearing Set Notifications be mailed directly to the claimant as well as emailed to counsel.
   3. Refer the claim to another process within the IAP.
   4. Deny the Request and Stay the claim for a period of time:
      • The adjudicator may deny the request and convene the hearing. If the result would be dismissal of the claim because of lack of evidence, the adjudicator may stay the claim.
      • If the adjudicator stays the claim, the claimant may request rescheduling of a hearing one month from the original date of the hearing.
      • If such a request has not been made upon the elapsing of one month from the date of the hearing, the claim will stand dismissed with written reasons. The adjudicator may adjust this time frame to accommodate the ending of the IAP or as the circumstances may require. The normal rights of review apply to any such dismissal.
      • In the event of an award, the adjudicator may adjust legal fees as indicated above.
   5. Deny the Request:
      • The adjudicator may deny the request and convene the hearing.
      • In the absence of evidence to support the claim, it will be dismissed, with written reasons provided by the adjudicator.
      • The normal rights of review apply to any such dismissal.
3. Following the decision to grant or deny the postponement, the adjudicator will write their Postponement Order and deliver it to all parties, including the Registry Officer.
   1. In all cases where a postponement is requested, the Registry Officer must be informed in writing as soon as possible, after which the Registry Officer will prepare a "Report on Hearing Postponements.” If a postponement is granted, the Registry Officer will arrange for a new hearing to be scheduled at the earliest possible date.
   2. If the Postponement Order results in a dismissal, the adjudicator will write a decision setting out the circumstances and the results for the dismissal.
   3. If the adjudicator issues a Stay of the claim, allowing for re-scheduling of a hearing into the claim, the adjudicator will deliver the Postponement Order to the parties, including the Registry Officer. If a request for re-scheduling is not received upon expiration of the time allowed, the adjudicator will provide a decision to the parties.

6. Concluding Guidance:

1. Adjudicators have the responsibility to manage the hearing: page 9, (e)(ii) if the IAP Model. This includes dealing with postponements as well as providing direction to the parties as to the process to be followed once a hearing date and time has been scheduled.
2. The Secretariat is nearing the end of the IAP. Extra measures must be taken to reduce the number of lost hearing days, while also maintaining a process that is fair to all parties.