Chapter 8 9_advocacy_abct_week_8

BCTA 308:Administrative Law

Chapters 8 & 9 Administrative Law, Principles & AdvocacyAdvocacy at Tribunals – Pre-Hearing Procedures

What makes an administrative law specialist

This, according to Jerry SeinfeldEpisode 56, broadcast January 27th, 1993

To me, a lawyer is basically the person who knows the rules of the country. We’re all throwing the dice, playing the game, moving the pieces around the board, but if there is a problem, the lawyer is the only person who has read the inside of the box.

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When a government wants to regulate…..

Legislative ChoicesThe legislature has many alternatives in dealing with the operation of an institution, business or enterprise.

It might decide that the area of public policy should be dealt with by setting up some kind of government agency. Here, the choices range over a broad spectrum. In making these choices, a legislature will typically analyze:

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1. The task to be assigned to the agency (often referred to as the agency’s “mission”). There are two factors that are usually considered in this analysis:– a. what is the nature of the specific business or

industry to be regulated– (e.g., firms manufacturing drugs, firearms or

rockets); and– b. in what manner should the regulation be carried

out (by licensing, monitoring, or performing the actual work at issue);

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2. The way the agency should be structured (whether, for example, it is to be headed by a single administrator or by a multi–person commission and what its internal organization will be); and finally

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3. The placement of the agency within the existing system of government (e.g., whether it is to be a separate cabinet–level agency, a component of an existing agency or an independent regulatory commission).

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What does this new agency do?

1. Rulemaking or Regulatory Agencies

When an agency exercises its legislative functions by making rules and regulations, the process normally used is a relatively simple system known as notice and comment or informal rulemaking. This process requires the agency to give the general public notification that a rule is being contemplated and the language or a general description of the proposed rule, and to invite any interested person to submit comments on the proposed rule.

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1. Rulemaking or Regulatory Agencies

For example, the Ontario Securities Commission is the statutory body responsible for regulating Ontario’s capital markets in accordance with the mandate established in the provincial Securities Act and the Commodity Futures Act. The Commission performs the duties assigned to it under those Acts and certain other legislation.

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2. Adjudicative agencies When the agency exercises its judicial function by engaging in what is sometimes called formal adjudication, it uses a process that is very much like a civil bench trial in court. These proceedings—while subject to some variation depending on whether the agency is at the municipal, provincial or federal level, and on the precise identity of the agency and the matter being adjudicated.

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2. Adjudicative agenciesThese types of agencies typically permit an oral hearing with direct–and cross–examination, testimony under oath, the development of a complete and exclusive record on which the decision is to be based, and the presence of a neutral presiding officer known as an adjudicator. However, court and agency procedures are not identical.For example, the Human Rights Tribunal, Social Benefits Tribunal, Landlord and Tenant Board are adjudicative agencies in Ontario.

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3. Policy Making / Regulatory AgenciesThese types of agencies create public policy with public input. The policy and research is relied on by government in order to carry out a legislative function.

For example, the federal CRTC makes rules about the amount that your telephone provider can charge for services. Similarly, the provincial Financial Institutions Commission creates rules to protect the public in many areas such as real estate, pension plans, and credit unions.

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So Where Do I Start? My client Wants a license.

There are so many agencies, so many rules, it can be confusing, so here are some steps to take:

1.Determine what laws or policies apply

2.Determine the stages in the process, and the deadlines

3.Determine where to go, who makes the decision

4.Figure out the concerns of the other participants

5.Review the files, make information requests

6.Work with your client to prepare the case or materials

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There are so many agencies, so many rules, it can be confusing, so here are some steps to take:


•Know the legislation under which agency operates•Know the Rules of practice and procedure•Read the interpretation guidelines•Read about similar decisions made by the same

agency•Above all else, be careful about jurisdiction

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There are so many agencies, so many rules, it can be confusing, so here are some steps:







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3.Determine where to go, who makes the decision•Where does the court or tribunal hold hearings•How often are the hearings, what day of week•How do you get on the docket, application process•Find out about the decision makers, experience•Attend some hearings if first time at agency

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•Research the law in the area in dispute• Identify issues, working backwards from the law•Determine burden & standard of proof applicable

to your matter, (See F.H. v. McDougall, 2008 SCC 53)

•Collect evidence and identify potential witnesses

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• Secure the attendance of witnesses by way of summons

• Organize materials, questions, closing submissions• Prepare binders of exhibits for each party, in the

order in which they will be introduced• Prepare cases (book of authorities) for each party,

in the order in which they will be spoken to

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Some Tips on Things to do for Success

There are some general rules to follow that help you succeed with the pre-hearing process:

1.Work with staff at the agencies, being polite & professional

2.Don’t assume you know it all, ask staff for options

3.While polite, insist on your client’s rights to info & process




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Some Tips on Things NOT to do for Success

There are some things to avoid if you wish to succeed with the pre-hearing process:

1.Don’t antagonize staff or judges

2.Don’t assume all agencies operate the same way

3.Don’t assume that less preparation than Court is required

4.Don’t start the process without knowing substantive law

5.Don’t start the process without knowing agency’s Rules

6.Don’t start preparing case without knowing jurisprudence

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So Now it’s Time for the Hearing

As you walk into the hearing room, you only have a few things to distinguish you from a layman. Use them all.

1.Rely on your preparation

2.Use your presentation skills

3.Use the reputation you have developed over time

4.Make reasonable concessions and accommodations

5.Don’t take extreme positions or mislead the tribunal

6.Focus on the important issues, don’t repeat yourself

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So…Into the Courtroom We Go

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But Wait…What Type of Hearing?

Different agencies allow different types of hearings, depending on a number of factors:

•The distance of the parties to the court•The cost and timeliness of the proceeding•The format that would allow the most fairness•The necessity of public access to a hearing

Adjudicators sometimes allow input on the type of hearing, and will deal with submissions by the parties in a pre-hearing conference:

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But Wait…What Type of Hearing?

Hearings can Held in Several Formats:

• An oral in-person hearing• An electronic hearing through videoconferencing

or telephone• A written hearing in which the evidence are

presented to the parties and adjudicator in written form (not suitable when issues of credibility exist)

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But First, what Obligations Does the Board Have?

It’s not all up to you, each Board, Agency, Tribunal and Commission has its own ways of doing business.

Notice of Hearing:

This is universal, parties always have a right to know when and where the matter is being adjudicated, also the purpose of the hearing and anything the parties need to do to prepare. The notice also names the parties.

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Who Has Standing:

This is also universal, the agencies enabling statute will determine jurisdiction, and who has a right to participate. For instance, under the Residential Tenancies Act the parties are the landlord and the tenant, and in a limited circumstance, a prospective tenant or a former landlord.

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Why is Standing Important:

Only parties with standing have a right to:

• Give evidence• Make submission• Cross examine witnesses• Receive a copy of the decision• Review or appeal

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Sometimes Standing Needs to be Determined:

Occasionally a person not set out in statute may be affected by the decision, and ask for standing, or even intervenor status. In such a case the agency will:

• Send out notices to persons who might wish to seek standing

• Allow those persons to make submissions as to standing

• This is often done by way of a pre-hearing motion28


Sometimes a Group Wishes to Have Intervenor Status:

If the agency grants them intervener status they may:

• Give evidence concerning the large public policy issues

• Give evidence regarding the affect on a group of the agency’s decision

• It is often said that the role of intervenor is to "assist" the court in making a just decision on the dispute at hand

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Sometimes there is a need for a pre-hearing conference if the agency’s rules allow for it. These can be useful for:

• The settlement of issues• The simplification of issues• Submitting agreed upon facts to the court• Dealing with process issues such as dates and

disclosure• Dealing with issues of the identification of parties• Dealing with any accommodation requests• Dealing with issues such as having a “closed” hearing• Determining the type of hearing to be held• Hearing motions related to the case

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Usually pre-hearing conferences are not conducted by the same member or panel who will hear the case, but not always. Some times for pre-hearing conferences are:

• Come prepared to settle if possible• Make a list of things you would like the court to deal

with• Have your client or key decision maker with you• Be prepared to set hearing and disclosure dates• Discuss the conference with the client prior to

attending• Prepare and serve any pre-hearing motions in

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Preliminary motions are an important part of the pre-hearing process.

•A motion is a request, usually written, but a party called the moving party.

•A notice of motion hearing will be served by Board or moving party

•Various types of motions are often heard to resolve issues prior to the actual hearing

•Motions are usually conducted by way of written materials and affidavits

•Not all agencies have a motions process. Shame on them!

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Types of pre-hearing motions include:

• Motion for dismissal or summary judgment – No triable issues

• Motion to bring a constitutional question– If the Board has jurisdiction to hear a constitutional question

• Motion for direction of the Court regarding process – Dates, disclosure, issues not found in the Rules

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Types of pre-hearing motions include:

• Motion to decide a jurisdictional issue – Disputing the jurisdiction of the Board to hear the matter

• Motion to strike all or part of pleadings – Party filing it wants the irrelevant, insufficient, immaterial, vague, redundant or scandalous pleading to be stricken.

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Disclosure of Issues & Documents Should be Required:

Not every agency has a Rule requiring disclosure, but it is always a good idea to provide and ask for disclosure:

• Speeds up the process, avoids delays• Allows both sides to know their weaknesses and

strengths

• Encourages settlement if both parties know both sides

• Allows for better preparation and witness selection• Make the process fair for both sides

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Multiple Types & Extents of Disclosure Requirements:

A member of the agency might order some disclosure, or extensive disclosure. These may include:

• Documents on which you intend to rely• Witness lists

• Witness will-say statements• Expert witness reports• Case law on which you intend to rely• Orders to allow the other side access to other

evidence

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Settlement Before the Hearing - Mediation:

Almost all adjudicative agencies provide access to mediation services. This is preferable to a hearing because:

• It saves time & money

• It allows each side to have a part in the solution• It maintains relationships• It can provide broader range of solutions than a

hearing• The agreements are generally enforceable on a

breach• It’s more practical than a duel with firearms

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Mediators are usually staff, not quasi-judicial appointments, but sometimes not. The mediator will:

• Facilitate discussion between angry parties• Try to ensure that each party sees the other side’s

position

• Suggest what the outcome “might” be at hearing• Suggest ways of settling the matter• Assist the parties in negotiating a final settlement

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If the matter settles before trial, the parties will usually do one of two things:

• Put the terms of settlement in a mediated agreement setting out the terms

• Attend in front of the adjudicator to put the terms in an order

• The adjudicator does not have to issue the order on consent if he or she believes it is not within his or her jurisdiction or is not in the public interest OR is outside his or her jurisdiction

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So…Into the Courtroom We Go – Really this Time

Next Week…Tribunal Procedures at the Hearing

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Economy & Finance

Chapter 8 9_advocacy_abct_week_8