Day 1

Introduction and Overview

Freya J. Kristjanson
Partner
Cavalluzzo Hayes Shilton McIntyre & Cornish LLP

Jeff G. Cowan
Partner
WeirFoulds LLP

1. The Charter and Administrative Proceedings

Lorne Waldman
Principal
Lorne Waldman & Associates

• The SCC decision in Conway: what does it mean for tribunals and section 24(1) Charter remedies?
• How to deal with Charter arguments before a tribunal
• Availability of Charter remedies at the tribunal level
• Reviewing the constitutional validity of the enabling statute: who can do what?
• Can a tribunal review other legislative provisions in light of the Charter?
• What should be put on the record in contemplation of judicial review proceedings based on a Charter argument?
• Standard of review of Charter and constitutional decisions
  • implications for administrative tribunals

2. 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

3. 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

4. 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 insistence
• How far do disclosure requirements go in administrative proceedings? How far can claims of confidentiality be sustained?
• Third party privacy and confidentiality claims
• 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

5. 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
• Best practices
• Strategies for reducing exposure

6.  Improving Practice before Administrative Tribunals

Paul B. Sommerville
Board Member
Ontario Energy Board

Jennifer A. Smout
Solicitor
The Corporation of the City of London

Margot Priest
President
Governance and Legislative Reform Group Ottawa

Providing perspectives on keys to success before administrative tribunals, and pitfalls to avoid.

Topics covered will include:

• Running fair and effective hearings
• Dealing with adjournments
• Time limits and other hearing control techniques
• Dealing with different kinds of expert evidence
• Technology and tribunals – the good, the bad and the ugly
• Self-represented litigants – tips for success
• What tribunal members really want from counsel at a hearing
• Writing reasons: tips from tribunal members
• Addressing ethical issues arising in administrative law practice

Day 2

7. 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?

8. Privacy and Access to Information

David Goodis
Senior Counsel
Information & Privacy Commissioner of Ontario

Paul Schabas
Partner
Blake, Cassels & Graydon LLP

• Disclosure, privacy and access: striking the balance
• Recent case law on the application of access and privacy legislation to tribunals
• Third party privacy/access issues
• Tribunal technology and privacy risks
• Access to pleadings and exhibits
• Top tips for lawyers and tribunals

9. Clustering, Accountability and Governance

Lynda Tanaka
Chair
Licence Appeal Tribunal

Gus Van Harten
Associate Professor
Osgoode Hall Law School

• Accountability and oversight agencies – role of integrity commissioners, conflict of interest commissioners, and lobbyist registrars in federal and provincial systems
• New statutory accountability and governance requirements - Ontario’s Adjudicative Tribunals Accountability, Governance and Appointments Act and Alberta’s Public Agencies Governance Act
• Tribunal integration, independence and accountability
  • clustering vs. amalgamation of mandates
• Relationship with ministers: MOU’s, accountability and independence
• Emerging best practices

10. 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?

11. 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. Key Administrative Law Issues

Christopher D. Bredt
Partner
Borden Ladner Gervais LLP

Jeff G. Cowan
Partner
WeirFoulds LLP

Andrew Wray
Managing Partner
Pinto Wray James LLP

• Demystifing the standard of review – the legacy of Dunsmuir/Khosa
• Differences between judicial review and appeals
• Standing of tribunals on judicial review/appeal
• Exhaustion of alternative remedies and prematurity
• Reasons and judicial review
• Remedies available on judicial review
• Tribunal reconsideration and review