I often encounter this question during consultations: “What if they don’t show up at the hearing?”
The answer depends on the nature of the proceeding.
In civil and family law proceedings, the matters are before the court. The court, bound by the fundamental principles of justice, must determine whether procedural fairness is observed.
If the court is of the opinion that the absent party has received proper notice and there’s no legitimate excuse for their absence, the court may instruct the other party to proceed on an unopposed basis. They then must convince the court that on the balance of probability, the present party is entitled to the relief sought.
On the other hand, if the court is not convinced that the absent party has received proper notice, or believes they have legitimate excuses, the court may decide to adjourn the proceeding to a future date. The attending party, however, may be entitled to costs for their attendance.
However, rules are quite different in administrative law proceedings, such as matters before the Landlord and Tenant Board and the Social Benefits Tribunal.
At the Landlord and Tenant Board, if one of the parties doesn’t attend, the matter may proceed in that party’s absence. If the applicant party doesn’t show, the matter may be dismissed outright. If the responding party doesn’t attend, the Board will inquire whether proper notice has been given to them.
Only after the Board is satisfied that procedural fairness has been observed will the Member will proceed to receive evidence from the attending party. It’s important to note that a decision in favour of the attending party isn’t guaranteed. If the Member isn’t satisfied with the evidence presented, the case may be nonetheless dismissed. I’ve seen this happen on several occasions.
At the Social Benefits Tribunal, the parties may rely on written submission rather than presenting in person. In fact, the Director of the Ontario Disability Support Program (ODSP) does so on a regular basis. The Appellant nonetheless has to prove to the Tribunal that the Director’s decision was wrong. Without compelling evidence, the Member of the Social Benefits Tribunal may nonetheless side with the Director and dismiss the appeal. In other words, if the Appellant doesn’t attend the hearing, the appeal will likely be dismissed.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
