Advanced Administrative Law and Practice

Tuesday, October 25 to Wednesday, October 26, 2011

THE WESTIN OTTAWA, Ottawa, Ontario

Tuesday, October 25, 2011

8:00 Registration Opens – Coffee Served

9:00 Announcements and Opening Remarks from the Co-Chair

Freya Kristjanson
Partner, Cavalluzzo, Hayes, Shilton, McIntyre
& Cornish, Toronto

9:10 Case Law Update: The Top Cases of 2011 and Why They Matter

Simon Ruel
Counsel, Heenan Blaikie LLP, Quebec City

• Statutory interpretation in administrative law
• Implied jurisdiction
• Non-interference with ongoing administrative processes
• Determining claims of privilege claims before administrative bodies
• Recent developments in the open-court principle
• Access to information at the SCC: are ministers’ offices government institutions?
• Understanding the impact on administrative law of the Rio Tinto decision at the SCC on the duty to consult
• Wagg and administrative proceedings: recent rulings
• Tribunal independence
• New case law from Québec
• Guidance on treatment of self-represented litigants
• The demise of patent unreasonableness in Ontario

10:15 Networking Refreshment Break

10:30 When are Reasons Sufficient? — Recent Cases

Guy Régimbald
Gowling Lafleur Henderson LLP

One of the most vexing areas for tribunal members and their advisors, as well as appellate bodies and courts on judicial review, is the area of sufficiency of reasons. How much is enough, and what are the latest judicial pronouncements on this vital area? This frequently requested session will bring you the most up-to-date guidance.

11:15 Seeking and Ruling on Standing Before Tribunals

Paul Champ
Champ & Associates

• If not specifically set out in the governing statute, may a tribunal:
• grant standing to interveners?
• allow groups or other third parties to file complaints on behalf of others?
• Can a complaint survive the death of the complainant, or be brought after death by a representative of the deceased?
• If so, who has the authority to represent the deceased?
• How do you verify that authority or require that the purported representative prove authority?
• To what extent does court jurisprudence regarding standing apply to administrative tribunals?
• Considerations for tribunals faced with a request for intervener status

12:00 Networking Luncheon for Speakers and Delegates

1:15 Trends in Costs in Administrative Proceedings

Robert A. Centa
Partner, Paliare Roland Rosenberg Rothstein, LLP
Toronto

• On what basis should tribunals award costs where they have the power?
• Practical implications of no-costs regimes in terms of the volume of unrepresented litigants
• Effective approaches to arguing costs
• Recent examples
• The Mowat case at the FCA: what will it mean to access to justice?

1:45 Moving to an Electronic Hearing Platform

Moderator and Speaker:

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

Panelists:

Cynthia Chaplin
Vice Chair, Ontario Energy Board

Dominic Jaar
National Leader, Information Management and
E-Discovery, KPMG, Montréal
Former CEO, Canadian Centre for Court Technology

Dominique Laporte
Secretary, Canadian International Trade Tribunal

• What do we mean when we talk about an electronic platform?
• When does technology add value and when is it the wrong way to go?
• Real-time transcripts
• Integration with document-management systems
• Effective use of case metrics
• Selecting the appropriate technology
• What features do you need to have and which are nice to have?
• An overview of types of technology available
• Implementing the technology
• What is an appropriate timeframe?
• Managing the transition period
• Should use of the technology be optional?
• What changes to the tribunal’s rules are required to accommodate efiling and related changes?
• The human side of the transition
• Getting buy-in from stakeholders
• Training
• Issues, challenges and advantages arising from electronic evidence
• How electronic hearings assist with the decision-writing process

3:00 Networking Refreshment Break

3:15 Significant Recent Developments Regarding the Charter and Administrative Tribunals

Chris Bredt
Partner, Borden Ladner Gervais LLP, Toronto

• How has Conway been applied?
• Is there still a distinction between ss. 24(1) and S.52 remedies?
• What are the implications for administrative tribunals?
• Practical advice for practitioners
• Other constitutional developments of 2011

4:00 Co-Chair’s Remarks and Conference Adjourns

Wednesday, October 26, 2011

8:30 Coffee Served

9:00 Announcements

Co-Chair:

Julie Baril
Director, Legal Office
Tribunal Administratif du Québec

9:05 Trends in Managing and Conducting Hearings: The View from the Front Lines

Moderator and Speaker:

Pamela Chapman
Part-time Member, Human Rights Tribunal of Ontario

Panelists:

John Buhlman
Partner, WeirFoulds LLP, Toronto

Shirish P. Chotalia, Q.C.
Chairperson, Canadian Human Rights Tribunal

• Active adjudication: when is it appropriate, and what are the limits?
• Significant cases
• Dealing with allegations of bias
• Balancing efficiency and proportionality with risk
• Best practices
• “Hot-tubbing” experts
• Recent trends in pre-hearing procedures and disclosure
• Changes at the Canadian Human Rights Tribunal: how are they working, and what lessons might inform procedures at other tribunals?
• Practical approaches for managing long, complex hearings

10:15 Networking Refreshment Break

10:30 Ethical Dilemmas for Tribunal Counsel — and How to Resolve Them

Julie Baril
Director, Legal Office
Tribunal Administratif du Québec

William McDowell
Partner, Lenczner Slaght Royce Smith Griffin LLP
Toronto

Luisa Ritacca
Partner, Stockwoods LLP, Toronto

11:45 Best Practices for Conducting Regulatory Investigations

David Neave
Partner, Blake, Cassels & Graydon LLP, Vancouver

• Best practices for conducting an investigation
• The content of the duty of procedural fairness at the investigation stage
• How to avoid tainting the hearing
• How to avoid compromising a concurrent or subsequent police investigation
• Considering third-party and reputational interests
• Recent case law on entrapment in relation to regulatory offences
• Warrantless search powers in governing statutes of administrative bodies: will they survive a Charter challenge?
• Particular issues related to Ontario’s Regulated Health Professions Act
• What is the appropriate time to raise issues about search and seizure? – before the tribunal or on judicial review?
• The impact of the discontinuance of the Berendsen appeal to the SCC
• The consequences of flawed investigations

12:30 Luncheon for Speakers and Delegates

Keynote Luncheon Address

The Hon. John Evans
Justice, Federal Court of Appeal

2:45 Devising Tribunal Rules that Work

Jeff Cowan
Partner, WeirFoulds LLP, Toronto

Mark Spakowski
Legislative Drafting Consultant

• Understanding the process
• Identifying deadwood in rules drafted many years ago, and how to fix it
• Common drafting errors to avoid
• What works and what doesn’t?
• Modern trends
• Technological change
• Anticipating future needs of the tribunal

3:45 Co-Chair’s Remarks

4:00 Conference Concludes

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Location:
THE WESTIN OTTAWA
Ottawa, Ontario