Chapter 13 14_15_outside-hearing_decision-process_week_10

BCTA 308:Administrative Law

Chapters 13, Administrative Law, Principles & AdvocacyConduct Outside the Hearing

So…What About Conduct AFTER the Hearing

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Paralegals be warey of post-hearing conduct?

Win or lose, you can criticize the decision, but:

•You shouldn’t criticize individual judges•You shouldn’t be critical of the court generally•Criticism should be based on legitimate issues•Discussion after a case can hurt your client

While it is tempting to let out frustration at the court or judge, it is usually best to say nothing

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Judges be wary of post-hearing conduct?

Judges and adjudicators sometimes come under fire for decision, but:

• Generally once case is over, their role is finished• It appears seedy for a judge to be defending

himself• If there were errors by judge, let review/appeal fix it• Judges can be sanctioned for speaking too loudly

While it is tempting for a judge or adjudicator to defend him or herself against criticism of a decision, it is usually best to say nothing

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How are Adjudicators Appointed?

Adjudicators are appointed through a transparent process that usually begins with an application:

• Applications made the Public Appointments Secretariat: http://www.pas.gov.on.ca/scripts/en/home.asp

• The Secretariat matches up vacancies with the appropriate candidate

• The Chair of the agency or others usually review the candidate, and the chair has input

The process is not perfect, and there is still a great deal of political interference. Appointments are term limited.

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In Ontario there is a fairly recent statute, the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009.

In December of 2009, the Adjudicative Tribunals Accountability, Governance and Appointments Act 2009, received Royal Assent. The Act allows government to cluster tribunals and agencies with common stakeholders and related issues in order to improve public services. The regulation for the social justice tribunals cluster was passed on January 25, 2011.

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•This new legislation offers a new approach to ensuring that adjudicative tribunals in Ontario are transparent, accountable and efficient in their operations while preserving their decision-making independence.

•The legislation sets out service standards, a mission statement, consultation policy, ethics plan, member accountability framework, a business plan and an annual report.

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Purpose1. The purpose of this Act is to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations while remaining independent in their decision-making. 2009

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Ex Parte Communication?

Trials take place in court with both sides present. You should never:

•Attempt to contact a judge personally•Speak to a judge in public about a case•Speak to them in court about the case without the

other side present•Send a submission or other document to the judge

that you have not also given to the other side

Doing any of the above is highly unethical, and could put you in trouble with the LSUC.

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Ex Parte Communication?

Doing any of the above is called:

•Ex parte communication. Ex parte means “on one side only”

•Having ex parte communication breaches the procedural fairness principle of impartiality

•Most agencies “protect” this type of access to the decision maker by having staff between the public and decision maker

• It’s a two-way street. The decision maker should never contact either of the parties directly, only by staff

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Communicating Through the Media?

Sometimes licensees will try to influence the outcome by creating a public interest in the case:

• Speaking with media is not prohibited, but has dangers• Judges may resent the fact that you are trying a case in

the media• Statements made outside of court that are attempting

to influence a judge can result in a licensee being found in contempt

• Tribunal members should NEVER speak to media about a case that is before them, or may come before them

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Good Case about Ex Parte Persuasion?

A good case about ex parte communications is Kane v. Board of Governors, University of British Columbia, [1980] S.C.R. 1105

•Kane was a professor, being brought before disciplinary hearing. University President attended hearing and gave evidence.

•Kane left so that panel could make decision. President remained in room and answered some questions

•Kane was suspended, he appealed based on panel asking ex parte questions of president, a witness

•Court found that natural justice had been breached

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BCTA 308:Administrative Law

Chapters 14 Administrative Law, Principles & AdvocacyTribunal Decision Making Procedures

What Needs to be Determined to Decide Case?

The process used to decide a case must be fair and thorough

•Tribunal Member must identify issues•Tribunal Member must come to conclusion about

facts, weighing creditability and giving evidence weight

•Tribunal Member must apply agency guidelines and the law to the facts and issues

•Tribunal Members then write the decision in a clear and concise manner, covering the main issues and facts

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When finding facts, some facts don’t need to be proved

•Adjudicators can take judicial notice of some facts•Facts should be widely held and accepted

The SPPA says:Notice of facts and opinions16.A tribunal may, in making its decision in any proceeding,

(a) take notice of facts that may be judicially noticed; and(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. R.S.O. 1990, c. S.22, s. 16.

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What are the rules about taking notice of facts?

When finding facts, some facts don’t need to be proved

• Judges or adjudicators may be tempted to take notice of facts in areas where they have special knowledge. This is very dangerous.

• If judges or adjudicators take notice of a fact, they are not required to advise the parties every time it happens. However it is probably wise for a judge to let the parties know that he or she intends to take notice of a fact if it may be controversial.

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Not all agencies have single member deciding cases

•There are single member agencies•There are agencies that use multi-member panels•There are agencies that do both, for training and

consistency purposes• In the case of a multi-member panel, unanimity

might be required• In a three member panel, two out of three wins•Minority decision usually permitted to write dissent

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What are the rules about taking notice of laws?

When applying law, what can adjudicator rely on?

• Judges and adjudicators are said to be able to take notice of the law, statutes and decisions. After all, the law is the law, whether it was pleaded or not. A judge cannot ignore a binding authority he or she knows of;

But

•Should they let the parties know about cases or statute they come across outside the hearing room?

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General Rule is as follows:

• Judges and adjudicators may rely on the authority if the “issue” was raised at the hearing, but the authority was not presented by either party or the judge

But

• Judges and adjudicators may NOT rely on the authority if the “issue” was NOT raised at the hearing, and the authority was not presented by either party or the judge. This would amount to an ambush of one of the parties.

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General Rule is as follows:

• Judges and adjudicators may NOT rely on the authority if the “issue” was NOT raised at the hearing, and the authority was not presented by either party or the judge. This would amount to an ambush of one of the parties.

But it can be fixed if:

• the judge re-convenes the hearing, raises the issue, and allows parties to make submissions to the issue and the law. Rather than re-convene, the judge can have staff contact the parties and ask for written submissions.

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Leading Cases

Tribunal members considering facts or legal authorities post-hearing:

•Ellis‑Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4

• Iwa v. Consolidated-bathurst packaging ltd., [1990] 1 SCR 282

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What REMEDIES can go into an order?

A remedy is an order for a specific measure or action

•Adjudicators are not judges. They are bound by statute when determining remedies

•The adjudicator issuing an order may ONLY order remedies that are anticipated by the enabling statute, the SPPA, the Charter or Code

• In the absence of any statutory power, a tribunal cannot award costs

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Remedies can be punitive, or forward looking

•A remedy can order that someone STOP doing something, or deny them a right to do something, such as an employment practice, obtain a liquor license, get a building permit

•However a remedy can also punish someone for doing something, abatements of rent, penalties, fees, fines, suspensions, a reduction of rates, legal costs to the other part OR to the tribunal, compensation paid to the other party

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Example of remedies section in Residential Tenancies Act

31. (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,

(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and

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Example of remedies section in Residential Tenancies Act

31. (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;

(c) order an abatement of rent;(d) order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;(e) order that the tenancy be terminated;(f) make any other order that it considers appropriate. 2006, c. 17, s. 31 (1).

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The requirement to give reasons

We’ve already learned that Baker v. Canada set out this obligation for tribunals. The SPPA says the following:

Decision

17.(1)A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party. R.S.O. 1990, c. S.22, s. 17; 1993, c. 27, Sched.

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The requirement to give reasons

We’ve already learned that Baker v. Canada set out this obligation for tribunals. Written reasons do the following:

• Helps the member clarify their own thinking

• Facilitates review or appeal

• Lets the parties, in particular the losing party, know why the case was

decided as it was

• To enhance the likelihood that the case will withstand review

• To provide certainty and predictability to others who may read decision

• To set out a standard of conduct that parties know they have to follow

• To demonstrate respect for the parties, show them that they were heard

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The content & format of written reasons

Adjudicators writing written reasons usually follow the following approach:

• Names the parties

• Frames the question

• Determine the issues

• Review the evidence

• Review the leading cases in that area of the law

• Analyze the facts as they related to the law

• Review authorities

• Give clear decision

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When can I expect my #@?%$% order?

Is it a final order, or just an interim order

• It’s important to distinguish between interim orders, and final orders. Interim orders are often directions for the parties, order for disclosure, payment, deciding a motion etc. The SPPA says:

Interim decisions and orders16.1(1) A tribunal may make interim decisions and orders.Conditions(2) A tribunal may impose conditions on an interim decision or order.Reasons(3) An interim decision or order need not be accompanied by reasons. 1994, c. 27, s. 56 (32).

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A final order is usually delivered within 30 days

•The SPPA says the following about time frames for all phases of the proceeding, including issuing orders

Time frames16.2 A tribunal shall establish guidelines setting out the usual time frame for completing proceedings that come before the tribunal and for completing the procedural steps within those proceedings. 1999, c. 12, Sched. B, s. 16 (6).

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A final order is usually delivered within 30 days

• If you believe that the order is taking too long being issued, then a polite letter to the Member, copy to the other side, will usually speed things up

•Complex orders with a great deal of testimony and complex legal issues will take longer to produce

• If the delay becomes unreasonable, then a party can apply for judicial review for an order compelling the tribunal to issue the order, but this is rare

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How will I get the order?

Orders are usually sent by mail or fax. The SPPA says:

Notice of decision

18. (1) The tribunal shall send each party who participated in the proceeding, or the party’s representative, a copy of its final decision or order, including the reasons if any have been given,(a) by regular lettermail;(b) by electronic transmission; (c) by telephone transmission of a facsimile; or(d) by some other method that allows proof of receipt, if the tribunal’s rules made under section 25.1 deal with the matter.

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Business

Chapter 13 14_15_outside-hearing_decision-process_week_10