Continental Networking Breakfast and Registration

Co-Chairs’ Welcome Remarks

Nadia Effendi
Partner
Borden Ladner Gervais LLP

Michael H. Morris
Senior General Counsel
Justice Canada

Year in Review: A Look at the Top Administrative Law Decisions and Cases to Watch

Paul Daly
University Research Chair, Administrative Law & Governance
University of Ottawa

Nadia Effendi
Partner
Borden Ladner Gervais LLP

Iris Fischer
Partner
Blakes, Cassels & Graydon LLP

In this opening session, our speakers will dive into the latest and most precedent cases causing ripples in Canada’s administrative law sector. Understand how current decisions are impacting the legal landscape, how ongoing cases may evolve, and what to expect from future cases.

FOCUS on AI

All Rise and AI!: Exploring Whether AI can Administer Justice

Marco Falco
Partner
Torkin Manes LLP

Chris Thompson
Patent and Trademark Agent, Centre for Business Technology Law (CBTL)
Justice Canada

• Analyzing the Government of Canada’s directive on Automated Decision-Making
• Analyzing how AI systems are being used by administrative bodies
• Procedural tasks vs. substantive analysis
• Identifying AI systems preferred
• Critiquing the limitations that AI systems present at the tribunal level
• Exploring best practices for using AI systems in administrative bodies
• Examining the use of AI systems without compromising individual rights
• Predicting whether our justice system will become more dependent on AI in the future?
• How will this potential dependency affect the future of the administration of justice?

Morning Refreshment Break

A Guide for Administrative Bodies for Protecting Privacy and Data Breach When Using AI Systems

Imran Ahmad
Senior Partner, Canadian Head of Technology
Norton Rose Fulbright Canada

Julia Barss
Head of Legal Services and General Counsel
Office of the Privacy Commissioner of Canada

Matthew Shogilev
Legal Counsel
Office of the Privacy Commissioner of Canada

With the increasing usage of AI by administrative bodies, it is crucial to understand how to protect privacy and mitigate risk when using these systems. This session will help administrative bodies develop a blueprint to ensure that individual privacy is safeguarded and uncompromised when using AI technologies.

• Understanding what is “safe” and what’s “at risk” when using AI systems
• Prioritizing the rules and best practices on how to handle personal information with AI use
• Exploring strategies on how to manage and reduce risk with new technologies
• Analyzing the processes required when privacy or data is breached through AI technologies
• Identifying practical tools that can be used to avoid breach in an increasingly AI-dependent world
• Devising a crisis-management preparedness plan to respond to any potential breach and preserve procedural fairness and access to justice quickly and efficiently

Networking Luncheon

Has the Katz Cradle Fallen? Examining the Evolving Standard of Review for Regulations in Administrative Decisions

Sunil S. Mathai
Crown Counsel, Crown Law Office – Criminal
Ministry of the Attorney General

Ian Demers
General Counsel
Justice Canada

• Exploring recent case law that affects what the appropriate standard of review is for regulations
• Auer v Auer
• TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs)
• Portnov v Canada
• Canadian Council for Refugees v Canada (Citizenship and Immigration)
• Identifying whether the court should apply a reasonable standard or a hyper-differential standard
• What is the reasonableness standard?
• What is the hyper-differential standard?
• Analyzing the constitutionality of the shift in the scope of judicial review of regulations amongst administrative decision making
• Understanding how this shift will impact the standard of review for regulations and ultimately how administrative decisions on regulations will be made going forward
• Is Katz still good law or has it been overwritten by Vavilov?

FOCUS on Post-Pandemic Challenges Surrounding Administration of Justice

A Post-Pandemic Look at Virtual versus In-Person Courtrooms: Determining the Best Fit for Procedural Fairness in the Administration of Justice

Kenneth Jull
Counsel
Gardiner Roberts LLP

Nabila Abdul Malik
Partner
Fasken LLP

Virtual hearings became more commonplace as a result of the global pandemic helping to ensure the administration of justice. Now as we enter the post -pandemic era, administrative bodies are taking a closer look at the continuing use of virtual versus in-person proceedings. This panel will examine what we have learned about the virtual courtroom, how justice can be administered in a virtual setting, and how to best proceed as the pandemic fades to memory.

• What have we learned from the pandemic era about virtual versus in-person proceedings
• Identifying best practices to apply to virtual hearings vs in-person hearings
• Analyzing the consequences of having only virtual or only in-person hearings
• Understanding the costs involved for virtual versus in-person hearings and how this can restrict someone from gaining access to justice
• Does having a virtual hearing still provide Canadians with their right to a fair proceeding?
• Determining the future of virtual proceedings in administrative law settings?
• When are they effective?
• Do they still make sense in a post-pandemic world?
• Distinguishing the effects of virtual versus in-person hearings for self-regulated parties

Afternoon Refreshment Break

Time to Dial it Back: A Guide to Affectively Reducing Tribunal Backlog

Ian R. Mackenzie
Board Member
Federal Public Sector Labour Relations and Employment Board (FPSLREB)

The pandemic created a significant backlog That administrative bodies are still addressing. This panel will do a deep dive into developing practical strategies that administrative bodies can use to effectively reduce backlog and ensure timely access to justice.

• Examining how much backlog still exists and determining what recourse can be used
• Exploring various solutions to overcome backlog:
• Use of virtual hearings versus in-person hearings
• Use of AI for decision-making
• Understanding whether more employees are needed or whether procedures need to be more efficient
• Develop practical tools for parties awaiting responses that can help expedite the process

Vexatious Complaints: What to do When Things Get Out of Hand

Colleen Bauman
Partner
Goldblatt Partners LLP

Justin H. Nasseri
Founding Partner
Ross Nasseri LLP
Chair, Civil Litigation Executive Committee
Ontario Bar Association

There is an ever-flowing abundance of frivolous complaints received by administrative tribunals and agencies at the intake level that often lead to time consuming tedious procedures. This panel will address successful strategies to overcome the growing load.

• Analyzing best practices on how administrative tribunals should bet deal with frivolous and vexatious complaints at the intake stage
• Identifying the threshold of administrative tribunals and agencies are required to satisfy to establish that a complaint need not be investigated
• Understanding the laws and burden of proof needed to prove that a complaint is frivolous or vexatious
• Are there any administrative or judicial remedies a party may pursue to have a litigant declared vexatious when there is no statutory approach prescribed in the enabling legislation?

Closing Remarks. End of Day 1

Continental Networking Breakfast and Registration

Co-Chairs’ Opening Remarks and Recap of Day 1

Nadia Effendi
Partner
Borden Ladner Gervais LLP

Michael H. Morris
Senior General Counsel
Justice Canada

To Preclude or Not to Preclude: Understanding an Appellant’s Right to Appeal

Michael H. Morris
Senior General Counsel
Justice Canada

Alyssa Tomkins
Partner
Gowlings WLG

• Analyzing the effects of influential cases:
• Yatar v. TD Insurance Meloche Monnex
• Canada (Attorney General) v. Best Buy Canada Ltd.
• Identifying the various methods appellants can use to overturn an administrative decision
• Understanding the nature and different types of privative clauses
• Examples of each type of privative clause
• Examining the scope of judicial review when privative clauses exist

Refreshment break

The Intersection of Administrative and Constitutional Law: Does the Doré Framework Comply withVavilov?

Stephen Aylward
Partner
Stockwoods LLP

Meera Bennett
Legal Counsel, Legal Services Branch
Ministry of the Attorney General, British Columbia

• Examining the Supreme Court’s decision in Doré v Barreau du Quebec
• What are the evolving shifts to the Doré framework?
• Understanding how the new framework imposes judicial review on administrative bodies
• Does this infringe upon the Charter of Rights?
• Assessing how the framework considers the Charter and administrative decision-makers
• Identifying how Doré and Vavilov intersect and co-exist
• What does this look like in practice?

Networking Luncheon

FOCUS on Access to Justice

Maximizing Diversity, Equity, and Inclusion in Tribunals to Ensure Culturally Competent Adjudication

Juliet Chang Knapton
Advocate-in-Residence
University of Ottawa

Hadayt Nazami
Founding Partner
Nazami & Associates

In recognition of Canada’s culturally and ethnically diverse population, it is crucial that administrative bodies also mirror this diversity. Such diversity among tribunals, would ensure a comprehensive understanding of the adversities faced by the community members that appear before them.

• Understanding the duty of administrative bodies to serve all Canadians regardless of race, ethnicity, & cultural background
• Assessing how administrative bodies can increase diversity within their tribunal bodies
• Identifying strategies to make this happen
• Analyzing how much administrative tribunals are reflective and representative of the communities they serve
• Are there initiatives to make this happen?
• Examining how tribunals can provide access to justice to minority communities

Understanding the Needs of Indigenous Peoples to Provide Them with Access to Justice

Julie Blackhawk
General Counsel
Justice Canada

Sara Mainville
Partner
JFK Law LLP

• Identifying and outlining the needs of indigenous people to ensure access to justice is readily available
• Understanding the barriers that Indigenous people face currently when it comes to access to justice
• Understanding the cultural limitations endured
• Developing best practices when trying to ensure services are attainable
• Analyzing procedures and practical strategies that provide as viable options to indigenous people
• Analyzing whether virtual versus in-person hearings are desirable amongst rural communities
• Has this helped?
• Is there now a feasibility issue when offered virtual hearings?
• Assessing accommodation processes to determine whether accommodation was met and reasonable

Afternoon Refreshment Break

A Strategical Guide on Providing Procedural Fairness to Self-Represented Parties at Tribunal Proceedings

Ian Darling
Chair
Condominium Authority Tribunal

Suzanne Gilbert
Deputy Chairperson, Refugee Appeal Division
Immigration and Refugee Board of Canada

With self-represented individuals appearing before administrative tribunals and courts, it is essential that they can fairly navigate these institutions. This panel will address practical ways for assisting parties throughout the administrative process, including in virtual hearings.

• Discussing active adjudication through the lifecycle of a file
• Are the procedures readily accessible to all Canadians?
• Can they properly and appropriately make their case?
• Exploring how plain language is critical for ensuring that self-represented litigants have meaningful access to processes
• Analyzing how logistics such as access to technology does not always equate to access to justice
• Finding the balance between assisting a self-represented applicant, without over assisting
• Distinguishing the difference in self-represented litigant’s needs if they are involved with an in-person hearing versus a virtual hearing

The Effects of Climate Change on Access to Justice

Paula Boutis
Solicitor – Legal and Risk Management Services
City of Hamilton

Climate change is presenting numerous challenges to many aspects of Canadian life, including access to justice. Our panelists will discuss what administrative bodies need to understand about how environmental impacts may impact access to justice and how to remedy this challenge. Points of discussion include:

• Understanding how climate change is affecting access to justice
• Assessing whether current laws are adequately protecting workers and residents in a changing climate
• Analyzing how to work around climate disasters that prolong or inhibit access to hearings
• How to respond when a climate disaster occurs?
• Exploring whether new avenues and best practices exist that can provide access to justice, while eliminating barriers caused as a result of climate disasters

Days 2 Ends. Conference Adjourns