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Factors that Should or Should Not Influence Your Decision-Making
Luisa Ritacca
Partner, Stockwoods LLP

THE ROLE OF POLICY, PRECEDENT AND DISCRETION IN ADMINISTRATIVE DECISION-MAKING

• Appropriate use of policy in your decisions
• Sources of policy
• What precedent is binding and what is not?
• Rules vs. policies and guidelines
• Boards created by public-interest statutes
• Consistency of decisions of your board, and why it matters
  - departing from past decisions
• Policy and the reasonableness of the decision upon judicial review
• The differences between tribunals and arbitrators

ESSENTIAL ETHICAL ISSUES FOR ADMINISTRATIVE DECISION MAKERS

• Outside influence: what kinds of problems can arise, how can you deal with them, and why you need to be concerned
  - internal influence
  - external influence
• How much can you rely on staff or tribunal counsel when writing decisions?
  - what sorts of things are they allowed to discuss or advise on?
  - appropriate tasks to delegate to staff
  - legal limits on their participation
  - tribunals with prosecutorial arms
  - why the type of tribunal may make a difference
• Bias and “reasonable apprehension of bias”
• With whom can you discuss the case?
• Confidentiality: within the tribunal and as claimed by parties
  - are your notes confidential?
• Consultation and circulating drafts within your tribunal
  - is it allowed?
  - is it a good idea?
  - legal rules
• When is it legitimate to change your mind, and when is it not legitimate?
• Scenarios for discussion