Pre-Conference Workshops

Workshop B — Ethical Best Practices for Conducting Hearings In-Person and on Virtual Platforms

Oct 25, 2022 1:15pm – 4:45pm

Speakers

Leslie A. Walden
Professor
University of Ottawa

Juliet Knapton
Advocate-in-Residence and Professor
University of Ottawa, Faculty of Common Law

Kathryn Manning
Partner
DMG Advocates LLP
Co-Chair
E-Hearings Task Force

Day 1 - Wednesday, October 26, 2022

8:45
Opening Remarks from the Co-Chairs
9:00

Judges Roundtable

State of the Nations on the Administrative Law Landscape Post Vavilov
9:30
Practical Ways to Apply the Vavilov Reasonableness Review to Questions of Statutory Interpretation
10:15
Networking Refreshment Break
10:30
How to Balance Deliberative Process Privilege While Ensuring Board and Tribunal Members Adhere to High Standards of Conduct
11:15
Privacy and Confidentiality Versus the Open Court Principal: Determining When the Open Court Policy Applies and to Whom
12:00
Techno Demo: Virtual Courtroom Solutions to Close the Accessibility Gap
12:30
Luncheon for Speakers and Delegates
1:30

KEYNOTE ADDRESS

Ensuring Access to Justice in Administrative Law
2:00
How to Ensure You Are Meeting Your Duty to Accommodate Mandate and Ensuring Access to Justice Amid Technology Barriers in Virtual Courtroom Proceedings
2:45
Networking Refreshment Break
3:00
How Your Legal Decisions Could End in Civil Litigation and the Ramifications: What You Need to Know
3:45
Case Study: Modernizing Processes to Streamline Decision Making and Decrease Backlog for Administrative Bodies
4:30
Closing Remarks from the Co-Chairs

Day 2 - Thursday, October 27, 2022

9:00
Opening Remarks from the Co-Chairs
9:05
Top Ten Things Judges are Looking for in a Judicial Review and Tips for Managing a Successful Application
9:35
Year in Review of Top Administrative Law Decisions and Cases to Watch
10:30
Networking Refreshment Break
10:45
Ensure Procedural Fairness for Self-Represented Litigants: How Administrative Bodies Can Walk the Line Between Passive and Active Participants
11:30

Electronic Evidence Integrity

What is Now Admissible in Court and How to Ensure Securing, Transferring and Preserving the Integrity of Digital Evidence for Administrative Hearings
12:15
Luncheon for Speakers and Delegates
1:15
How Administrative Bodies Can Reduce Barriers to Hiring and Retaining Effective Employees and Maximize Diversity, Equity, and Inclusion Best Practices under the Public Service Employment Act Amendments
2:15
How Vavilov Opened the Door for Judicial Reviews and Statutory Appeals: What You Should Now Expect
3:00
Networking Refreshment Break
3:15
Best Practices for Conducting Internal Regulatory Investigations that will Withstand Scrutiny on Judicial Review
4:00
What to Anticipate from Bill C-32, a Modernized Official Languages Act? How to Prepare for the Impact on Administrative Bodies
4:45
Closing Remarks from the Co-Chairs

Day 1 - Wednesday, October 26, 2022

8:45
Opening Remarks from the Co-Chairs
9:00

Judges Roundtable

State of the Nations on the Administrative Law Landscape Post Vavilov
9:30
Practical Ways to Apply the Vavilov Reasonableness Review to Questions of Statutory Interpretation

This session will provide an in-depth analysis of the Supreme Court of Canada’s decision in the appeal of Mason v. Minister of Citizenship and Immigration (2022), one of the first substantive appellate decisions of judicial review post-Vavilov. Speakers will address Canada’s power to deport migrants, or foreign nationals, not pursuant to national security concerns, or criminal charges.

  • Examining principals of statutory interpretation in federal law
  • Exploring methodology for conducting a reasonableness review of a decision maker’s interpretation of a statute
  • Analysing under what grounds reviewing courts can conduct a preliminary analysis of the legislation when reviewing an administrator’s statutory interpretation
  • Exploring the methodology outlined in Hillier v Canada (Attorney General), (2019)
  • Understanding the importance of Safe Food Matters v Attorney General of Canada (2022) FCA 19 and the interpretation of the Pest Control Products Act
  • Clarifying how the reasonableness reviews are being treated with a look at recent case law, including:
  • Canada (Citoyenneté et Immigration) c. Conseil canadien pour les réfugiés, (2021) 
  • Portnov c. Canada (Procureur général), (2021)
  • Restaurants Canada c. Ville de Montréal, (2021)
  • Ville de Mont-Saint-Hilaire c. 9193-4463 Québec inc., (2021)
  • Bricka c. Procureur général du Québec, (2022)

10:15
Networking Refreshment Break
10:30
How to Balance Deliberative Process Privilege While Ensuring Board and Tribunal Members Adhere to High Standards of Conduct

  • Gauging a chair’s oversite authority over members decisions and writing and ensuring consistency in decision making
  • Understanding deliberate privilege in light of Shuttleworth v. Ontario (Safety, Licensing Appeals Standards Tribunal) (2019)
  • Identifying the minimum standards required to ensure both the existence and appearance of adjudicative independence
  • What authority does a chair have to act when a member is not producing?
  • How far can a chair go when discussing human right’s decisions?
  • What chairs can and cannot discussed when making decisions with other members?

11:15
Privacy and Confidentiality Versus the Open Court Principal: Determining When the Open Court Policy Applies and to Whom

  • Prioritizing the rules and best practices for how to handle personal information
  • Determining the balance between collecting the correct information to make a decision, and a person’s right to be heard
  • Deciphering when to file an order for confidentiality and how it will be considered by the court
  • Analysing how the court will consider applications for representatives to use a pseudonym, and considerations for self-represented litigants?
  • Reviewing the decision to uphold an order for confidentiality with a look at Desjardins v. Canada (Attorney General), (2020)
  • Analysing the decision to grant confidentiality with a look at Democracy Watch v. Canada (Attorney General), (2021)
  • Validating when the open court principal apply and to whom, with a look at the Supreme Court of Canada (“SCC”) in Sherman Estate v Donovan, (2021)
  • What kinds of proceedings meet the open court principal?
  • How to handle requests for a private hearing

12:00
Techno Demo: Virtual Courtroom Solutions to Close the Accessibility Gap

Hear from solution providers as they demonstrate a few technology services aimed at providing greater access to justice for people with disabilities or language barriers.

12:30
Luncheon for Speakers and Delegates
1:30

KEYNOTE ADDRESS

Ensuring Access to Justice in Administrative Law
2:00
How to Ensure You Are Meeting Your Duty to Accommodate Mandate and Ensuring Access to Justice Amid Technology Barriers in Virtual Courtroom Proceedings

  • Clarifying in what instances can tribunals provide accommodation to parties when technology is a barrier
  • Exploring the operational component of adding translation services or closed captioning services
  • How does accommodation changed the proceeding, including the timelines?

2:45
Networking Refreshment Break
3:00
How Your Legal Decisions Could End in Civil Litigation and the Ramifications: What You Need to Know

Canada (Attorney General) v. TeleZone (2010), is the seminal case for allowing a civil damages claim to be filed without first bringing an application for judicial review of the decision in Federal Court. In this session speaker will discuss whether there is a willingness to depart from this decision.

  • Examining how civil law proceedings are using administrative law reports as evidence and how they are weighed
  • Examining how administrative decisions are scrutinized by civil court proceedings and the ramifications
  • Discussing the impact of litigation holds on your investigation’s files
  • Troubleshooting potential effects of a private redress following a tribunal decision
  • Mapping potential avenues for a lawsuit
  • Seeking compensation or damages – not seeking to overturn an administrative decision
  • Case law review with a look at:
  • Sulaimon c. Procureur général du Québec, (2021)
  • Association des intervenants en dépendance du Québec c. Villeneuve, (2021)
  • M.S. c. Canada, (2021)

3:45
Case Study: Modernizing Processes to Streamline Decision Making and Decrease Backlog for Administrative Bodies

Hear how the Immigration and Refugee Board of Canada (IRB​) is developing a new division to clarify, simplify and modernize its processes. Discover practical applications and how they can be applied to other administrative bodies to diminish backlog.

Panelists will discuss how this model is being implemented and may apply to other organizations:

  • Enhancing efficiency and reducing timelines for finalizing appeals
  • Creating consistency across divisions
  • Clarifying the processes and simplify the language used to make proceedings more accessible
  • Correcting inconsistencies between the English and French versions of policy
  • Providing a minimum time frame for the notice of hearing 

4:30
Closing Remarks from the Co-Chairs

Day 2 - Thursday, October 27, 2022

9:00
Opening Remarks from the Co-Chairs
9:05
Top Ten Things Judges are Looking for in a Judicial Review and Tips for Managing a Successful Application
9:35
Year in Review of Top Administrative Law Decisions and Cases to Watch

During this session panelists will address the most significant cases causing ripples in Canada’s administrative law sector. Hear how current decisions are impacting the legal landscape, how ongoing cases may evolve, and what to expect from future cases.

  • Anticipating outcomes from oversight of the federal government’s use of the Emergencies Act, due in 2023, in relation to the “Freedom Convoy” trucker protests and blockades
  • Discussing the ramifications of the Alberta Court of Appeal’s opinion that the Impact Assessment Act (2019) is unconstitutional and the Quebec Court of Appeal’s opinion on the limits of incorporation by reference
  • Assessing delay and remedies in administrative law in light of Law Society of Saskatchewan v Abrametz (2021)
  • Providing an update on the operation of the Vavilov framework by the Supreme Court (in Entertainment Software Association) and provincial Courts of Appeal
  • Critically analyzing the implications for administrative tribunals of the Supreme Court’s analysis in Sullivan and litigation about British Columbia’s Civil Resolution Tribunal 

10:30
Networking Refreshment Break
10:45
Ensure Procedural Fairness for Self-Represented Litigants: How Administrative Bodies Can Walk the Line Between Passive and Active Participants

  • Finding the balance between assisting a self-represented applicant in the legal process person, without over assisting
  • Do they know what is happening in the legal process?
  • Can they properly and appropriately make their case
  • What actions can taint the case, and what actions could be seen as being an advocate
  • How do you break down the passive adjudication between applicant and adjudicators?

11:30

Electronic Evidence Integrity

What is Now Admissible in Court and How to Ensure Securing, Transferring and Preserving the Integrity of Digital Evidence for Administrative Hearings

  • Identifying what information is and is not recorded, what is upload, and where is it saved
  • Transferring information from devices such as portable drives
  • Authenticating digital evidence obtained from the public
  • Security digital evidence from social media accounts
  • Transferring evidence to the Crown, including encryption in transit and during storage
  • Highlighting the trends for allowing digital evidence to be used in court, with a look at:
  • R. v. Martin (2021)
  • R. v. Richardson (2020)
  • R. v. Mills (2019)

12:15
Luncheon for Speakers and Delegates
1:15
How Administrative Bodies Can Reduce Barriers to Hiring and Retaining Effective Employees and Maximize Diversity, Equity, and Inclusion Best Practices under the Public Service Employment Act Amendments

Join this session as we look at the 2021 amendments to the federal Public Service Employment Act, which aims to strengthen diversity and inclusion, and address biases and barriers faced by equity-seeking groups.

  • Analysing whether employee assessment methods contain bias and barriers exist that could disadvantage persons in equity-seeking groups
  • How to investigate errors, omissions or improper conducts resulting from bias or barriers in staffing that disadvantages person in equity-seeking groups?
  • How to ensure that permanent residents of Canada benefit from the same hiring preference as Canadian citizens 

2:15
How Vavilov Opened the Door for Judicial Reviews and Statutory Appeals: What You Should Now Expect

  • Identifying the reasonableness standard for a judicial review
  • Diagnosing whether it is a question of fact in law or jurisdiction
  • Identifying the correctness or the error of law
  • Examining the rule of law exception to the presumption of reasonableness review with a look at the United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 and Supreme Court of Canada’s decision in Moore v. British Columbia (Education), (2012)
  • Analyzing exceptions such as when the application of appellate standards of review whereby a statutory right of appeal has been created
  • Determining when the correctness review applies

3:00
Networking Refreshment Break
3:15
Best Practices for Conducting Internal Regulatory Investigations that will Withstand Scrutiny on Judicial Review

  • Across the Rubicon in search of due diligence, random tests and muddy waters
    • Dawn raids
    • Crossing the detention line
    • Statements from employees
    • Continuing regulator purpose
    • Applying the principles of natural justice to administrative investigations
  • Overlaps between the roles of administrative investigators and police investigators
  • Understanding how the investigative role differs from the function of a decision-making tribunal
    • Understanding the scope of your statutory authority
  • Assessing the authority of regulatory agencies under the Public Inquiries Act
  • Determining standards that apply to your organization
  • Classifying the context of non-criminal, quasi-criminal or criminal

4:00
What to Anticipate from Bill C-32, a Modernized Official Languages Act? How to Prepare for the Impact on Administrative Bodies

In March 22, the Minister for Official Languages tabled a Bill C-32 to modernize the Official Languages Act.

  • Strengthen the powers of the Commissioner of Official Languages, including new authority, compliance agreements, to impose administrative monetary penalties
  • What remedy could be used to protect linguistic minorities across the country.
  • How will federal institutions be expected promote official languages for minority communities
  • What new rights and obligations are could be established to protect the French language in private businesses under federal jurisdiction

4:45
Closing Remarks from the Co-Chairs

Workshop A — How to Justify Decisions and Write Decision Letters that Won’t Get Quashed Post-Vavilov

Oct 25, 2022 9:00am – 12:30pm

What is it about?

Administrative decisions makers are imposed with the important burden to provide thorough reasons for their decisions. Amid increased scrutiny in judicial review, it is crucial for administrative bodies to ensure that their decisions are well-reasoned. This session will offer practical strategies for lawyers and non-lawyers alike, addressing: This session is offered in-person only.

This session will offer practical strategies for lawyers and non-lawyers alike, addressing:

  • Developing meaningful ways administrative tribunals can justify decision making
  • Ensuring fairness, quality and consistency in decision making
  • Articulating your interpretation and fully explaining your decision and writing effective decisions
  • Finding efficiency in writing decisions amid high-traffic tribunals
  • Exploring the standard of “correctness”
  • Honing your redaction skills

Workshop B — Ethical Best Practices for Conducting Hearings In-Person and on Virtual Platforms

Oct 25, 2022 1:15pm – 4:45pm

Leslie A. Walden
Professor
University of Ottawa

Juliet Knapton
Advocate-in-Residence and Professor
University of Ottawa, Faculty of Common Law

Kathryn Manning
Partner
DMG Advocates LLP
Co-Chair
E-Hearings Task Force

What is it about?

This session will include live anonymous polling, small-group discussions, and hypothetical scenarios. This session is offered in-person only.

  • Gauging the criteria for holding a hearing in-person versus on a virtual platform
  • Deciphering whether the imposed duty of competence on lawyers is being upheld when it comes to technological competency and ensuring the client is well represented
  • How behaving with courtesy and good faith takes on new meaning in a virtual court
  • Communicating with clients without interfere in the proceedings
  • Deciphering your legal duty to assist a self-represented litigant without becoming an advocate
    • How to not take advantage of a self-represented litigant’s lack of knowledge regarding practice and procedure
    • Deciding when it is appropriate to offer assistance (including technical assistance) to a self-represented litigant
    • Delineating what kind of assistance will not prejudice or conflict with your client obligations
    • Scrutinizing the potential for self-represented litigants to be “left behind” during a remote hearing, how this can happen and what steps can be taking to it doesn’t happen
  • Reaffirming best practices for etiquette from appropriate attire to technical courtesy