1. BCTA 308:
Administrative Law
Chapters 13, Administrative Law, Principles &
Advocacy
Conduct Outside the Hearing

2. So…What About Conduct AFTER the Hearing
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3. 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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4. 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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5. 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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6. How are Adjudicators Appointed?
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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7. How are Adjudicators Appointed?
In Ontario there is a fairly recent statute, the Adjudicative
Tribunals Accountability, Governance and Appointments
Act, 2009.
• 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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8. How are Adjudicators Appointed?
In Ontario there is a fairly recent statute, the Adjudicative
Tribunals Accountability, Governance and Appointments
Act, 2009.
Purpose
1. 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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9. 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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10. 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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11. 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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12. 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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13. BCTA 308:
Administrative Law
Chapters 14 Administrative Law, Principles &
Advocacy
Tribunal Decision Making Procedures

14. 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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15. What Needs to be Determined to Decide Case?
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 opinions
16.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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16. 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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17. What Needs to be Determined to Decide Case?
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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18. 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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19. What are the rules about taking notice of laws?
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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20. What are the rules about taking notice of laws?
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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21. What are the rules about taking notice of laws?
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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22. 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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23. What REMEDIES can go into an order?
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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24. What REMEDIES can go into an order?
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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25. What REMEDIES can go into an order?
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 $10,000 and the monetary jurisdiction of the
Small Claims Court;
(e) order that the tenancy be terminated;
(f) make any other order that it considers appropriate. 2006, c. 17,
s. 31 (1).
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26. The requirement to give reasons
We’ve already learned that Baker v. Canada set
out this obligation for tribunals. The SPPA says
the following:
Decision
17.(1)A tribunal shall give its final decision and order, if any, in any
proceeding in writing and shall give reasons in writing therefor if
requested by a party. R.S.O. 1990, c. S.22, s. 17; 1993, c. 27, Sched.
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27. The requirement to give reasons
We’ve already learned that Baker v. Canada set
out this obligation for tribunals. Written
reasons do the following:
• Helps the member clarify their own thinking
• Facilitates review or appeal
• Lets the parties, in particular the losing party, know why the case was
decided as it was
• To enhance the likelihood that the case will withstand review
• To provide certainty and predictability to others who may read decision
• To set out a standard of conduct that parties know they have to follow
• To demonstrate respect for the parties, show them that they were heard
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28. The content & format of written reasons
Adjudicators writing written reasons usually
follow the following approach:
• Names the parties
• Frames the question
• Determine the issues
• Review the evidence
• Review the leading cases in that area of the law
• Analyze the facts as they related to the law
• Review authorities
• Give clear decision
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29. When can I expect my #@?%$% 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 orders
16.1(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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30. When can I expect my #@?%$% order?
A final order is usually delivered within 30 days
• The SPPA says the following about time frames
for all phases of the proceeding, including
issuing orders
Time frames
16.2 A tribunal shall establish guidelines setting out
the usual time frame for completing proceedings that
come before the tribunal and for completing the
procedural steps within those proceedings. 1999,
c. 12, Sched. B, s. 16 (6).
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31. When can I expect my #@?%$% order?
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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32. 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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