Fundamentals of Administrative Law & Practice
An In-Depth, Practical Guide for Lawyers, Abritrators and Tribunal Members

Day 1 – Monday, April 19, 2010

8:45
Introduction and Overview
Freya J. Kristjanson, Partner, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP
Jeff G. Cowan, Partner, WeirFoulds LLP

9:00
Procedural Fairness: The Right to be Heard
Freya J. Kristjanson, Partner, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP

Sources of Procedural Fairness

• The common law duty of fairness
• Statutory procedural requirements
• Constitutional rights

The Right to Be Heard

• Notice and discovery
  - Disclosure of evidence
  - Expansion of the scope of the hearing
• The right to state one’s case
  - The type of hearing: written or oral
  - The right to counsel
  - Time to present one’s case
  - The right to cross-examine witnesses
  - Remedies for a breach of the right to be heard

9:45
The Spectrum of Administrative Decision-Making
Leslie M. McIntosh, General Counsel, Ministry of Attorney General, Ontario

• Overview of the rules of natural justice and procedural fairness
• What decisions are governed by these rules?
• What decisions are “purely ministerial” decisions?
• Adjudicative decisions
• Key cases on whether a decision meets the criteria for application of these rules

10:15
Networking Refreshment Break

10:30
Rules, Policies, Guidelines
John Stevenson, Secretary, Ontario Securities Commission
Josée Turcotte, Deputy Secretary and Independent, Adjudicative Counsel, Ontario Securities Commission

• Role of the tribunal in promulgating procedural rules
• What kinds of policies and guidelines can a tribunal make?
• Best practices in drafting policies and guidelines
• Legal status of the tribunal’s rules, policies and guidelines
• Most difficult and problematic areas of administrative law

11:15
Presenting Charter Arguments in Administrative Proceedings
Paul Schabas, Partner, Blake, Cassels & Graydon LLP

• When do tribunals have the authority to consider Charter arguments?
• Application of recent case law
• Availability of Charter remedies at the tribunal level
• Tips for presenting evidence on a Charter issue and making a Charter argument before a tribunal
• How to determine whether a decision-maker is an adjudicative body vs. an administrative decision-maker
• Does the tribunal have the authority to decide questions of law? Determining the intent of the enabling legislation
• Reviewing the constitutional validity of the enabling statute:  who can do what?
• Can a tribunal review other legislative provisions in light of the Charter?
• Limits on seeking s. 24(1) remedies in administrative proceedings
• What should be put on the record in contemplation of judicial review proceedings based on a Charter argument?
• Can counsel create a record for appeal without alienating the decision makers in administrative proceedings?

12:00
Networking Luncheon for Delegates and Speakers

1:15
Obtaining, Presenting and Receiving Evidence in Administrative Proceedings
Andrew K. Lokan, Partner, Paliare Roland Rosenberg Rothstein LLP

• Obtaining evidence on behalf of a party other than the tribunal: tips and traps
• When can a tribunal compel witnesses to appear or produce documents?
• A tribunal’s right to gather evidence at its own instance
• How far do disclosure requirements go in administrative proceedings? How far can claims of confidentiality be sustained?
• The centrality of relevance
• Arguing admissibility issues before a tribunal:  winning strategies
• Effective use of expert evidence before tribunals
• Application of the “best evidence rule” to administrative proceedings
• Other key issues raised by recent decisions

2:00
Regulatory Negligence: Update
Stephen J. Moreau, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP

• Recent case law
• The limits of statutory immunity clauses
• Policy-making risks
• Investigations and regulatory negligence
• Responding to complaints
• Best practices
• Strategies for reducing exposure

2:45
Networking Refreshment Break

3:00
Improving Practice Before Administrative Tribunals:
Providing Perspectives on Keys to Success before Administrative Tribunals, and Pitfalls to Avoid.
Paul B. Sommerville, Board Member, Ontario Energy Board
Jennifer A. Smout, Solicitor, The Corporation of the City of London

Topics covered will include:

• How much written material should be provided to the tribunal before the hearing and at the hearing?
• Tips for clarity in the presentation of written materials
• What types of issues should be emphasized at the hearing stage?
• What issues should be dealt with summarily?
• What assumptions should counsel make about members’ knowledge of the law?
• How do tribunal members feel when legal arguments are put on the record for the purposes of judicial review?
• Best and worst presentations at tribunal hearings
• Identifying what tribunal members really want from counsel at a hearing

4:30
Course Adjourns

Day 2 – Tuesday, April 20, 2010

8:45
Course Resumes – Opening Remarks

9:00
Bias and Lack of Independence
Jeff G. Cowan, Partner, WeirFoulds LLP

• The legal tests for bias and lack of independence
• Common law grounds for alleging bias
• Recent decisions on what constitutes a reasonable apprehension of bias
• Under what circumstances should a possible issue of bias be raised by counsel or by the adjudicator?
• How much detail should be part of the disclosure?
• Who decides the issue of bias?
• When should there be a voluntary withdrawal by the adjudicator?

9:45
Privacy and Access to Information
David Goodis, Senior Counsel, Information & Privacy Commissioner of Ontario

• Why is it important for tribunals to be transparent?
• Understanding why it is critical for tribunals to respect privacy
• Delving into what types of disclosures tribunals make
• How do you analyze a “disclosure of information” issue?
• Practical examples of the application of access and privacy legislation to tribunals
• Top tips for lawyers and tribunals: resolving the tension

10:30
Networking Refreshment Break

10:45
Judicial Review of Professional Discipline Decisions
Bernard LeBlanc, Steinecke Maciura LeBlanc

• Prematurity
• Stays pending the review
• Standard of review
• Standard of proof and evidentiary issues
• Review findings first or wait for the penalty?
• The record and affidavit evidence
• Political issues

11:30
Penalties
M. Jill Dougherty, Counsel, WeirFoulds LLP

• Penalty guidelines
• Interim suspensions/discipline
• General deterrence vs. specific deterrence
• The “public interest” and penalties
• Mitigation: restitution and remorse?
• Alternatives

12:15
Networking Luncheon for Delegates and Speakers

1:30
Making Tribunal Decisions and Writing Effective Reasons
Johanna Braden, Partner, Stockwoods LLP

• Consultations among decision-makers
• The role of tribunal counsel during deliberations
• Consultations with others
• Burden of proof at a hearing
• Standard of proof
• Evaluating credibility
• Key elements of an administrative law decision
• Duty to give reasons
• What formats for decisions work well and why?
• How much detail should be given in various types of decisions?
• How extensively should the facts be reviewed?
• Do the decision and reasons need to address every argument raised during the proceedings?
• Are boilerplate statements appropriate?
• Reviewing a decision to consider grounds for appeal, reconsideration or review: a checklist
• Are there “appeal-proof ” ways to write decisions?

2:30
Networking Refreshment Break

2:45
Appeals, Judicial Review and Standard of Review
Christopher D. Bredt, Partner, Borden Ladner Gervais LLP
Jeff G. Cowan, Partner, WeirFoulds LLP
Andrew Wray, Managing Partner, Pinto Wray James LLP

• The judicial review process: common law principles
• Deference to the tribunal’s expertise
• Statutes governing judicial review
• Privative clauses
• Prerequisites for judicial reviews
• Remedies available on judicial review
• Pragmatic and functional tests
• Differences between judicial reviews and appeals
• Application of the tests to jurisdictional issues
• The standard of review
• Ability of tribunals to get involved in reviews from their own decisions
• Bars to judicial review
• Application of recent decisions on judicial review and the standard of review

4:00
Course Concludes - Closing Remarks