Click here for a PDF version (Size: 53 KB - updated: 2011-11-23)
[November 22, 2011]
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 also seriously impede the Secretariat’s ability to manage the hearing process effectively.
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 adjournment 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. This is not intended to address failure of attendance at scheduled hearings by self represented claimants.
The procedure involves the following:
The following steps are recommended:
The adjudicator may:
The conditions may include the following:
Following the decision to grant or deny the adjournment, the adjudicator will write a report to all parties, including the Registry Officer, as to that decision.
If the decision results in a dismissal, the adjudicator will write a decision setting out the circumstances and the reasons for the dismissal.
If the adjudicator issues a stay of the claim, allowing for re-scheduling of a hearing into the claim, the adjudicator will deliver a report 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.
Adjudicators have the responsibility to manage the hearing: page 9, (e) (ii) of the IAP Model. This includes dealing with adjournments as well as providing direction to the parties as to the process to be followed once a hearing date and time has been scheduled.
The Secretariat has reached the estimated mid-point 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.
In the order, the adjudicator may do one or more of the following:
|Any participant||a. Order that a new hearing date be set.|
|Canada or a church organization||b. Proceed with the hearing without the defendant present.|
|Alleged perpetrator, witness, or counsel for same||c. Proceed to decision based on the available evidence.|
d. Order that a new hearing date be set, and indicate that if the claimant does not attend the new hearing, their case may be decided on available evidence.
e. Place the file on hold pending a written attestation from the claimant that they are ready to proceed or apply a time penalty before which a subsequent hearing may not be scheduled.
f. If the claimant fails to attend a rescheduled hearing, the adjudicator may write a decision based on the available evidence.
g. Direct that all clients of a particular legal counsel receive notification of hearing dates directly from the Adjudication Secretariat, and require the legal counsel to provide the necessary contact information.
h. Inform the claimant of their right to choice of counsel in the IAP.
i. Provide the claimant with the option of proceeding with the hearing on a selfrepresented basis.
j. Factor the hearing non-attendance into the legal fees. The legal fees would be calculated in the usual way, after which an amount equal to the cost of a postponed hearing is deducted from the total legal fees payable. An additional penalty may be applied for each postponement of the same case.
- The Secretariat will publish costs ‘thrown away’ with respect to legal fee deductions.
|Any participant, where an adjudicator finds that non-attendance is an abuse of process, or has had a significant adverse impact on the claimant or other parties||
k. Cause a formal complaint to be made to the appropriate Law Society.
l. Cause a formal complaint to be made to the person’s employer.
m. Refer the file to the Chief Adjudicator with a recommendation that the Chief Adjudicator file a complaint of civil contempt with a supervising court.
I have reviewed the available data on this file, and report the following:
|Was the Hearing Set Notification sent to all participants?||
No - details provided below
|Was the Rescheduling Window properly observed by the Secretariat?||
No – details provided below
|Was a change to the hearing requested in the Rescheduling Window?||
No – details provided below
|Is a copy of the Hearing Set Notification attached to this Report?||
No – details provided below
Have there been any previous postponement requests on this file?
Yes - No
|Has this requestor made any previous postponement requests?||
Yes – details below.
|How many requests have been made?|
|How many requests have been approved?|
|Details of reasons for approved requests|
|How many requests have been denied?|
|Details of reasons for denied requests|