The Canadian Institute’s 9th Annual
Advanced Administrative Law & Practice - Agenda

DAY ONE:  WEDNESDAY, OCTOBER 28, 2009

Announcements & Opening Remarks from the Chair
M. Philip Tunley
Partner, Stockwoods LLP, Toronto

Defining the Scope of Tribunals’ Privacy Obligations
Moderator:
Kris Klein
Law Office of Kris Klein
Panelists:
Barbara McIsaac, Q.C.
Partner, Borden Ladner Gervais LLP
Paul Schabas
Partner, Blake Cassels & Graydon LLP, Toronto
Chantal Bernier
Assistant Privacy Commissioner of Canada

• Where are tribunals drawing the line between the public interest and individual privacy interests?
• What position are the privacy commissioners taking in the various jurisdictions?
• What if anything can tribunals do when parties post tribunal filings on the internet?
• Is there a different duty, if any, owed to third parties and witnesses?
• When if at all should tribunals redact competitive information?
• Best practices within the tribunal
• Guidelines from the Supreme Court of Canada
• Governing privacy/confidentiality issues in disclosure among parties
• Implications of privacy on crafting reasons
• Access to information
  - should information in the tribunal fi le be available to the public?
  - should some personal information be redacted, and if so what?
  - what about tribunal notes?

Interpreting Dunsmuir and Khosa: Keeping Current on Standard of Review
Ann Chaplin
General Counsel, Justice Canada, Constitutional and Administrative Law Section

• How are the lower courts applying Dunsmuir and Khosa?
• The status of legislated standards of review and privative clauses
• What is reasonable?
• Are questions of law appropriately assessed on the reasonableness standard?
• Winning strategies for arguing standard of review under the new test
  - working under the Federal Court Act after Khosa

Handling Constitutional Issues in an Administrative Setting
Chris Bredt
Partner, Borden Ladner Gervais LLP, Toronto

• Understanding the ground rules
• Does the tribunal have jurisdiction? – An analytical approach
• Developing the record
• Evidentiary issues
• What is the standard of review?
• Common errors and their consequences
• The fallout from major cases of the last few years
• Lessons from cases where tribunals handled constitutional questions poorly

Cross-Canada Case Law Update for 2009
Peter Doody
Partner, Borden Ladner Gervais LLP

• How are tribunals responding to the Supreme Court of Canada’s ruling on the single civil standard of proof?
• Implications of Cyr
• Procedural fairness
• Is there scope for judicial review with respect to public tendering?
  - reconciling conflicting lines of cases
• Is there still room for judicial review in commercial situations after Fleetway?
• Emerging issues:
  - will someone challenge today’s trend to large administrative monetary penalties on constitutional grounds?
• Solicitor-client privilege: an update on cases following the Blood Tribe decision

What You Need to Know about Statutory Interpretation in the Tribunal Context
M. Philip Tunley
Partner, Stockwoods LLP, Toronto

Statutory interpretation lies at the heart of administrative justice. But the rules have changed a lot since you were in law school. In this session, get tips on applying the current approach in the tribunal context. The speaker will also look at recent cases, including one on the issue of whether the rules of statutory interpretation apply to rules the tribunal itself has made.

Accommodation in the Administrative Process: Doing it Right
Ian Mackenzie
Vice-Chairperson, Public Service Labour Relations Board

• Implications of the “niqab” criminal case for administrative tribunals
• Accommodating other religious beliefs
  - oaths or affi rmations?
• Sensitizing the tribunal to the needs of parties or witnesses with mental health challenges
  - capacity
  - accommodation
  - keeping control of the hearing process
• Literacy audits and tribunal documents
• Simultaneous interpretation: rules and pitfalls
• Cross-cultural sensitivity in the hearing process
• Explaining the tribunal process to new Canadians

DAY TWO: THURSDAY, OCTOBER 29, 2009

Announcements and Opening Remarks from the Co-Chair
Lynda Tanaka, FCI Arb., C.Arb., ICD. D
Chair, Licence Appeal Tribunal, Ontario

The View from the Bench
The Hon. Simon Noël
Justice, Federal Court of Canada

Doing More with Less: Gaining Efficiencies in Tribunal Operations
Graham Clarke
Vice Chairperson, Canada Industrial Relations Board

• The initial application: requiring the heavy lifting at the start of a case
  - responses and replies
• Screening cases: when can you dispose of a matter without an oral hearing?
  - case study: the CIRB’s prima facie process and the Blanchet case
• Using pre-hearing conferences and case-management techniques
  - full documentary production, will-say statements, deciding preliminary issues
  - requests to admit facts and/or agreed statements of fact: what are the limits?
• Mediation and other forms of ADR Conducting the hearing
  - do you need evidence about every issue in the case?
  - timeliness
• Finding efficiencies in drafting written reasons

Preserving Tribunal Independence
Freya J. Kristjanson
Partner, Cavalluzzo, Hayes, Shilton, McIntyre & Cornish LLP, Toronto
Paul Manning
Partner, Willms & Shiers Environmental Lawyers LLP, Toronto 

• An update on the year’s developments in tribunal independence and impartiality
• Case study: the changing mandate of the Ontario Energy Board
  - political oversight of OEB decision making
  - the role of economic expertise in economic regulation
  - the broader implications for other tribunals
• Dealing with issues arising from having part-time members
• Best practices for preserving the independence, transparency and legitimacy of your tribunal
  - responding to interference from the executive branch

Working under the Direct-Access Model: Recent Experience at the Human Rights Tribunal of Ontario
David Wright
Interim Chair, Human Rights Tribunal of Ontario
Patrick James
Partner, Pinto Wray James LLP, Toronto

• What challenges arose during the transition, and how were they managed?
• What would the Tribunal have done differently in retrospect?
• Is the process faster?
• What are the case volumes like?
• How is it working for complainants, respondents and their counsel?

When are Reasons Sufficient?
Owen Rees
Sockwoods LLP, Toronto

• An update on important recent case law
• What do the cases mean in practice?
• How much is too much?
• When are written reasons not required?
• Balancing the legal requirement for adequate reasons with inadequate tribunal resources