The Year in Review: Key Recent Developments

in Administrative Law

Andrew Lokan, Paliare Roland Rosenberg Rothstein LLP

A succinct overview of key administrative law cases from the past year, giving context to the ongoing flow of jurisprudence. The session will also highlight potential issues to watch, and will provide an introduction to many issues taken up in more detail in later presentations.

The Limits of Federal Court Jurisdiction: The Final Chapter?

Nicholas McHaffie, Stikeman Elliott LLP (Ottawa)
Joseph K. Cheng, Counsel, Department of Justice Canada
Peter Ruby, Goodmans LLP

Moderator
Michael H. Morris, General Counsel, Public Law
Department of Justice Canada

With the Supreme Court poised to rule on the pivotal Telezone series of cases, public law counsel and civil litigators may hope for some certainty and direction on the correct scope of the Federal Court’s jurisdiction and the ability to bring civil actions arising from crown decisions or actions. This panel will update you and explore the implication of the Supreme Court
rulings.

Note: In the event the SCC decisions are not released by the program date, an alternate topic and panel will be presented in this time slot.

• The history of the conflict: Grenier, Telezone, Manuge
  
• What factors have historically governed whether an action can be brought and where judicial review is the required procedure?
  
• The SCC decision in the Telezone cases: making sense of the
  judgment, and how it will affect future proceedings
  
• What, if any, questions are left unanswered by the court’s rulings?

Tribunal Governance and Accountability: Ontario’s New Legislation

Laverne Jacobs, University of Windsor Law School
Gary Yee, Chair, Ontario Social Benefits Tribunal
Andrew Pinto, Pinto Wray James LLP

Moderator
Doug Ewart, Senior Advisor, Administrative Justice Reform
Project, Environment and Land Tribunals Ontario

Ontario has passed legislation introducing some significant new parameters for such issues as tribunal governance, tribunal policy making, and the appointment process. This legislation provides an interesting case study from which to examine many perennial questions about how administrative
bodies can best be held accountable while maintaining independence.

• Highlights and overview of the significant changes in Ontario by the Adjudicative Tribunals Accountability, Governance and Appointments Act
  
• Viewing the Ontario legislation in a broader context: how well does it fit with the goals of administrative justice?
  
• The tribunal appointment process – accountability, merit, and control
  
• The consequences of increased public scrutiny of tribunal
  governance
  
• How much power do tribunals have under the new regime?
  
• Do tribunals have both sufficient power and guidance to meet accountability demands?
  
• Examining the government’s own accountability to tribunals
  
• Communications strategies for tribunals
  
• Building stakeholder relationships
  
• Examining the precise relationship between transparency, accountability, and independence
  
• The pros and cons of tribunal clustering

Procedural Fairness in Discretionary Decisions

Leslie M. McIntosh, General Counsel, Crown Law Office – Civil
Ministry of the Attorney General Ontario
Lorne Waldman, Lorne Waldman & Associates

• The Ont CA decision in Mavi (leave to SCC granted) and its implications
  
• When does the use of permissive language in legislation give rise to discretion?
  
• Defining political discretion: drawing the line between administrative decision making and executive action
  
• To what extent do dictates of procedural fairness apply to
  discretionary decisions?
  
• Review of discretionary decisions – how much deference is
  appropriate?
  
• Comparison of the courts’ approach to different types of discretionary decisions – what we can surmise

Public Inquiries: A New Frontier for Procedural Justice

Gus Van Harten, Osgoode Hall Law School
Robert A. Centa, Paliare Roland Rosenberg Rothstein LLP

Public inquiries seem to be used with increasing frequency to investigate a wide range of issues or events, sometimes potentially substituting for – or
perhaps hoping to avoid – other administrative or civil processes. This session will provide a reflective look at this unique type of proceeding, including recent examples and potential challenges for those involved.

• The purposes and limits of public inquiries
  
• How can inquiries achieve effi cient but fair process?
  
• Potential challenges to openness and independence
  
• The unique role of judges conducting inquiries
  
• The role of Commission Counsel: what it is, what it is not
  
• Comparison of inquiries with other administrative hearing processes
  
• Lessons from the Cornwall Inquiry and others
  
• How do parameters for counsel change when inquires
  have a policy focus?

Advocacy Before Tribunals

Chris G. Paliare, Paliare Roland Rosenberg Rothstein LLP
Brian Gover, Stockwoods LLP Barristers
The Hon. Justice Deena F. Baltman, Ontario Superior Court of Justice

Moderator
Katherine Laird, Executive Director, Human Rights Legal Support Centre

• Knowing your tribunal, and tips for ensuring you have as much information as possible
  
• Re-calibrating your presentation to the context: which techniques and tactics should you “leave in the courtroom” and which ones should you bring to the tribunal hearing?
  
• Evidence and objections: What are the standards? What is the best strategy?
  
• Tips on reading the adjudicator or panel
  
• Scheduling and adjournments: understanding the tribunal’s perspective
  
• Judicious use of written submissions

Self-Represented Litigants and Access to Justice

Lorne Sossin, Dean, Osgoode Hall Law School
Linda Lamoureux, Chair, Health Professions Appeal and Review Board
Avvy Go, Clinic Director, Metro Toronto Chinese & Southeast

Asian Legal Clinic

• The challenges of self-representation in administrative hearings – strategies to make it work
  
• Administrative process design to facilitate access
  
• Does the content of procedural fairness change where the litigant is self-represented
  
• Can special procedures for self-represented litigants constitute unfairness to other litigants not offered such procedures?
  
• What courts have said about the content of fairness in the case of self-represented parties
  
• Self-representation by choice vs. by necessity: does it or should it matter?
  
• Plain language – are we doing all that we can?
  
• In what circumstances should self-representation be  discouraged?
  
• How best to utilize “duty” counsel arrangements

Recent Developments in Aboriginal Administrative Law

Arthur Pape, Pape Salter Teillet Barristers & Solicitors
Kerry Wilkins, Counsel, Ministry of the Attorney General, Ontario

As courts continue to work to define their role in relation to aboriginal duties, rights, and self government, aboriginal issues continue to be a fertile ground for the application of both constitutional and administrative law principles. This year, the Supreme Court has released and will be releasing several very significant judgments addressing these issues. The panel will update you on these rapidly evolving principles.

• Little Salmon/Carmacks First Nation: an update on this very
  important story
  
• Judicial review of aboriginal governance decisions: how should it be approached? When should a court intervene? Is Lafferty v. Tlicho only the tip of the iceberg?
  
• The role of tribunals in applying and interpreting the duty to consult: Carrier Sekani Tribal Council
  
• What effect, if any, does the SCC’s Conway decision have on
  tribunals’ role in adjudicating the duty to consult?
  
• Other recent aboriginal law cases that public law lawyers should keep in mind
  
• The evolution of the duty to consult, and the court’s oversight of the duty

Luncheon Special Guest Speaker

Jennifer Stoddart, Privacy Commissioner of Canada

The Challenge of Crafting Effective Accountability

Regimes: Striking the Balance

The roles of the Integrity and Lobbying Commissioners provide fascinating case studies in the application of administrative law principles in a very unique regulatory context. This panel will look at the integrity and lobbying regulation schemes and discuss some of the broader implications and lessons that can be drawn from the experience of these officers.

Karen E. Shepherd, Commissioner of Lobbying, Canada
Lynn Morrison, Integrity Commissioner, Ontario
Linda L. Gehrke, Lobbyist Registrar, City of Toronto

Moderator
Michael H. Morris, General Counsel, Public Law
Department of Justice Canada

• Lobbying and accountability: finding the right balance
  
• Overview of the municipal, provincial and federal schemes
  
• The role of an accountability officer: in what ways is the role similar to other adjudicative roles, and how different is it?
  
• Is there an inherent tension between independence and delegated authority, and how can this best be addressed?
  
• Comparison: how have legislators differed in their choices?
  
• Managing registry systems
  
• Defining the regulated group – how to draw a reasonable line
  
• Emerging issues: lobbyists and conflict of interest; recent guidance on Federal Rule 8 on conflict of interest
  
• Accountability beyond lobbying: the other facets of “regulating” public integrity

New Frontiers in Consistency of Decision-Making: Guidelines,

Test Cases, and Institutional Innovations

Michael Gottheil, Executive Chair, Environment and Land Tribunals Ontario
Soraya Farha, Vice-Chair, Health Services Appeal and Review Board and Member, Health Professions Appeal and Review Board

• Defining the appropriate level of consistency: what do we (or should we) really mean by consistency in administrative adjudication?
  
• Striking the balance between consistency and maintaining independent decision-making – an ongoing challenge
  
• When are guidelines appropriate?
  
• Guideline development: stakeholder input, consultations, notice and comment rules
  
• When to make guidelines public/keeping guidelines confidential
  
• Promoting consistency through Case Management procedures: triage and case assignment
  
• Full board discussions and Decision Review: promoting principled, well reasoned decisions
  
• The role of tribunal counsel in encouraging consistency: some do’s and don’ts

R v. Conway: The Continuing Evolution of Tribunals’

Relationship with the Charter

Jessica Orkin, Marlys Edwardh Professional Corporation
Joaquin Zuckerberg, Counsel, Consent and Capacity Board

The recent Supreme Court of Canada decision in Conway represents a new guidepost for administrative tribunals in dealing with Charter claims. This panel will explore the background to this important decision and its importance going forward for Charter claims at administrative bodies.

• Review of prior approaches to Charter remedies at tribunals
  
• The new test for “court of competent jurisdiction”
  
• When will a tribunal not have Charter remedies?
  
• “Consolidation” of the former lines of jurisprudence on tribunals and constitutional claims: is the decision helpful? What new directions does it point to?
  
• Making sense of remedial powers in the context of a tribunal’s specific mandate
  
• What role does discretion play now?
  
• Does this decision alter anything held in Trachemontagne?