Administrative law session for adjudicators examines delay, self-represented litigants

By Terry Davidson

Law360 Canada (September 23, 2022, 10:47 AM EDT) -- Lengthy administrative law proceedings and greater assistance for self-represented litigants were two items covered during a recent conference for adjudicators in Saskatchewan.

The Sept. 21 session, put on by the Saskatchewan Administrative Tribunals Association (SATA) and the Law Society of Saskatchewan (LSS), was a two-and-a-half hour, for-credit session providing professional development for participating law society members.

Presenter Michelle Flaherty, an Ontario-based adjudicator, mediator and workplace investigator, spoke of the obligation on the part of adjudicators to properly support self-represented litigants (SRLs).

Michelle Flaherty

Michelle Flaherty

“Increasingly, we’re seeing rising numbers of self-represented litigants within the administrative justice system, and it has really changed how many of us do our work as adjudicators,” she said. “There are new strategies that we’ve developed, but those come alongside with new obligations and some additional pitfalls that we face as adjudicators working in this new climate.”

Jurisprudence has made it so arbitrators have an obligation to do more for self-represented litigants than simply listen to the case, she said.

Before becoming an adjudicator, Flaherty was a vice-chair with the Ontario Human Rights Tribunal, where she said 75 per cent of litigants were self-represented.

Research indicates that many SRLs start with legal representation but end up representing themselves because they run out of money before their case gets to the hearing stage, she said. It also found SRLs to be at a disadvantage due to not knowing how to navigate the process or rules of procedure.

Part of the problem, she said, is a gulf existing between how legal professionals and SRLs view procedural fairness: Legal professionals view procedural fairness in the context of whether the law is properly applied and if the outcome is correct and reasonable, while SRLs view it as whether they were treated with respect, if they had ample opportunity to tell their story and whether they understood what was going on.

But case law now dictates that adjudicators have an obligation to ensure SRLs are able to meaningfully participate in a hearing.

“This isn’t about evening the playing field; it’s not about becoming your advocate, but it’s helping them navigate the unfamiliarity of litigation, and it’s also … ensuring that there is a climate in which they can present their case to the best of their ability. We as adjudicators have an interest in this. We want to make sure that cases are decided based on the merits, not based on one or the other party’s ability to navigate the legal process. Wrapped up in that are concerns about the rule of law and access to justice. … What we’ve seen … is a recognition that what needs to happen is the legal system needs to adapt to the presence of SRLs, not the other way around.”

Flaherty turned to the Ontario Court of Appeal’s decision in Morwald-Benevides v. Benevides, 2019 ONCA 1023, which she said “endorsed the notion of active adjudication” when dealing with SRLs.

“What it said is it is no longer sufficient for a judge or an adjudicator to simply swear a party in and then leave the party to explain the case, letting the party flounder and then subside into unhelpful silence,” said Flaherty.

Small actions, she said, can help an SRL feel the system is being fair.

Instructing an SRL where to sit, telling them how to refer to an adjudicator and giving them the options of standing or sitting “goes a long way to help people feel that they are being treated respectfully and that they have a sense of what is going on.”

“When I first started looking into active adjudication, the question I asked myself was: can we do it? Is it something the courts and the jurisprudence will allow us to do? And that has really shifted over the past several years. It’s no longer a question of can we do it, it’s … now become an obligation. The jurisprudence across jurisdictions in Canada have recognized that the process is difficult for some self-represented litigants to understand, and that adjudicators have a role to play in making the administrative proceeding more accessible.”

Paul Daly, University of Ottawa

Paul Daly, University of Ottawa

Another presenter, University of Ottawa associate law professor Paul Daly, spoke of delay in administrative proceedings.

Daly harkened back to when he acted for LSS in its case against Saskatchewan insurance lawyer Peter V. Abrametz, who in January 2018 was convicted by an LSS disciplinary hearing committee for misconduct involving bogus cheques and questionable loans.

Abrametz (not to be confused with his lawyer son, Peter A. Abrametz), appealed the hearing committee’s decision all the way to the Saskatchewan Court of Appeal, arguing he was the victim of undue delay during his time being investigated, tried and found guilty of “conduct unbecoming” by the LSS hearing committee.

His career on the line, Abrametz sought a stay of proceedings.

The Appeal Court allowed Abrametz his stay, but then Daly and the LSS turned to the Supreme Court of Canada.  

Daly said Abrametz attempted to draw a line between his case and the Supreme Court’s watershed ruling in R. v. Jordan, 2016 SCC 27, which set time limits to address undue delay in criminal proceedings.  

In the end, the Supreme Court sided with the LSS, finding that there was no constitutional right outside the criminal context to be tried within a reasonable amount of time, and that there are “fundamental differences between criminal and administrative proceedings.”

Daly addressed this with conference participants.

“We said you can’t draw an analogy to criminal proceedings,” he said. “There is no Charter right to be tried in a reasonable time in an administrative setting, and the administrative setting is so complex that it would be foolhardy to impose the presumptive time limits that the Supreme Court developed in criminal law in the Jordan decision. If you think about the variety of tribunals and regulators and disciplinary bodies that you all sit on, trying to agree on the presumptive amount of time that a proceeding — or steps in a proceeding — should take would be incredibly difficult.”

The administrative process takes time. 

“In relation to regulated professionals — doctors, nurses, lawyers, accountants, engineers and so on — the purpose of disciplinary proceedings is to ensure public confidence in the profession. And, ultimately, this is something all professionals benefit from. All professionals benefit from a robust discipline process for members who arguably have failed to uphold their professional obligations. … Being fair takes time, resolving matters authoritatively and definitively takes time and ensuring fairness takes time, as well ensuring, ultimately, to uphold public interest.”

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