The Divisional Court ruled that despite the absence of any formal requirement, in certain situations it would be prudent for courts or tribunals to call parties who fail to attend at the start of a hearing.
Absenteeism at hearings is not unusual, and it often raises a dilemma for the presiding judge or arbitrator. Indeed, during the pandemic, hearings were often held remotely or virtually, with fixed time slots, and sometimes with little-to-no staff support. The last thing a judge or arbitrator wishes to do is spend time trying to track down a absent party through a series of phone calls and/or emails. The Divisional Court confirmed that it is not a requirement for the judge/arbitrator/court/tribunal to chase absent parties down, however, the Divisional Court went on to say that in certain situations it may be prudent to try and reach out to the absent party or their counsel.
Although the court did not define the circumstances that would make such a call or follow-up prudent, the court did highlight the factors made a call or follow-up prudent in the case before them, which was:
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- A history of the party attending prior hearings;
- A party who had legal representation;
- A notice sent by mail, with no real means upon which to verify that it got into the hands of the absent party;
But even with these elements, the Divisional Court didn’t say that a court or tribunal had a duty to make the call to any absent party, but rather it was simply “prudent” to do so. In this case, with no such follow-up effort being made at the hearing level, the absent party had to appeal the underlying ruling, which was successful on the grounds that the Divisional Court was essentially satisfied that the absent party didn’t receive the notice sent in the mail, given that historically this party attended other hearings, and they had legal representation (ie: a shown intention to participate). The parties could have been spared the appeal had the tribunal or court simply reached out to the absent party at the opening of the hearing where they could have learned all of these factors.
In my work as a Deputy Judge, this is all too frequent a circumstance, and it can lead to many challenges, especially since a high volume of the litigants are unrepresented. For example, Settlement Conferences are scheduled for one-hour virtual session time slots, and when a party fails to appear, it can sometimes take 30 minutes to track them down, and since there is no court service support during these sessions, it all falls on the Deputy Judge to make the phone calls or send out the emails (or get court clerks to send out emails if one can be quickly located), and then monitor both for replies if no one picks up the phone.
But regardless of this “hassle,” I generally do try to make that effort even without any of the above noted “circumstances,” and I must say that it is typically very helpful to me (and the other parties) because:
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- It can lead to the person ultimately connecting into the session (albeit a little late), and we can have a fulsome or quasi-fulsome hearing;
- It can confirm that the person is ignoring or rejecting the court process, which strengthens the endorsement to sanction the party for their non-attendance and/or strengthens the default ruling;
- It can confirm that it was an honest oversight or error on the part of the absent party;
- It can confirm the existence of an intervening event that interfered with their attendance (ie: car accident, medical emergency, etc); and/or
- It can confirm that there was an error made with the Notice (ie: sent to the wrong email, sent to the wrong address, etc).
This recent appellate case under review shows that the citizens are best served by the court or tribunal making an outreach effort, because if that phone call or email was made or sent at the hearing stage, the parties would have likely been spared the wasted time, effort, and costs to appeal the decision: extremely inefficient, especially if it could all have all been avoided with a few minutes of enquiry and follow-up at the opening of the hearing.
I can appreciate that for many parties who do attend, they would often prefer that no effort be made to contact absent parties because then they have no opposition: however, that may, in my view, be the wrong approach. Indeed, attending parties should encourage the court or tribunal (or even volunteer themselves) to reach out to the absent party if for no other reason than to avoid securing a default ruling that may end up being reversed on appeal because of some frailty in the notice, or other potential reasonable reasons or excuse for the non-appearance of their opponent.
But as reflected in this appellate decision, it is not a procedural or legal requirement to make contact, which means that it is not going to be an error-in-law for a judge or arbitrator to proceed without first making an effort at contact with absenteeism parties; at most, it is a discretionary practice suggestion or directive.
Zaltzman v. Kim, 2022 ONSC 1842
https://www.canlii.org/en/on/onscdc/doc/2022/2022onsc1842/2022onsc1842.html