chair

Lucas Lung Lerners LLP

September 15, 2017

Professionalism and Practice Management Issues in

ADMINISTRATIVE LAW

*CLE17-0090300-A-PUB*

DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.

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Library and Archives Canada Cataloguing in Publication

Professionalism and Practice Management Issues in Administrative Law

ISBN 978-1-77345-008-7 (Hardcopy)ISBN 978-1-77345-009-4 (PDF)

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Final

July 21, 2017

Chair: Lucas Lung Lerners LLP

September 15, 2017 12:00 p.m. – 1:30 p.m.

CPD Hours = 1 h 30 m Professionalism

Webcast Only

SKU CLE17-00903

Agenda

12:00 p.m. – 12:02 p.m. Welcome and Opening Remarks

Lucas Lung, Lerners LLP

12:02 p.m. – 12:18 p.m. Role of the Prosecutor in Administrative

Proceedings Lyla Simon, Senior Enforcement Counsel,

Mutual Fund Dealers Association of Canada

PROFESSIONALISM AND PRACTICE

MANAGEMENT ISSUES IN ADMINISTRATIVE

LAW

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12:18 p.m. – 12:34 p.m. Advocacy before Administrative Boards and Tribunals

Krista Bulmer, Senior Lawyer Member,

Consent and Capacity Board 12:34 p.m. – 12:44 p.m. Question and Answer 12:44 p.m. – 1:16 p.m. How to Provide Accessible Justice while

Maintaining a Profitable Practice Kelley Bryan, Perez Bryan Procope LLP Lucas Lung, Lerners LLP 1:16 p.m. – 1:30 p.m. Question and Answer 1:30 p.m. Program Ends

September 15, 2017

SKU CLE17-00903

Table of Contents TAB 1 How to Provide Accessible Justice While Maintaining

a Profitable Practice……………………………………………………………1 – 1 to 1 – 6 Kelley Bryan, Perez Bryan Procope LLP Lucas Lung, Lerners LLP

TAB 2 Do’s and Don’ts of Tribunal Advocacy…………………………………2 – 1 to 2 – 8

Krista Bulmer, Senior Lawyer Member, Consent and Capacity Board

PROFESSIONALISM AND PRACTICE MANAGEMENT

ISSUES IN ADMINISTRATIVE LAW

TAB 1

How to Provide Accessible Justice

While Maintaining a Profitable Practice

Kelley Bryan, Perez Bryan Procope LLP

Lucas Lung, Lerners LLP

September 15, 2017

Professionalism and Practice Management

Issues in Administrative Law

Professionalism and Practice Management Issues in Administrative Law September 15, 2017

How to Provide Accessible Justice While Maintaining a Profitable Practice

Kelley Bryan, Perez Bryan Procope LLP Lucas E. Lung, Lerners LLP

Balancing access to justice with running a profitable practice

Access to justice is one of the most pressing issues affecting the justice system today.

It has become the focus of many studies, task forces, committees, conferences, and

other initiatives.1 Chief Justice McLachlin has declared that access to justice is a

“fundamental right, not an accessory.”2 Lawyers and paralegals, as members of a

regulated profession, have a monopoly on the provision of legal services. As the Chief

Justice has highlighted, this privilege comes with a responsibility:

If you're the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it. And I don't think it's enough to say we are providing it for the rich and the corporations. You have to find a way to provide it for everybody.3

1 See Hon. Coulter A. Osborne, Q.C., Civil Justice Reform Project: Summary of Findings and Recommendations (Ministry of Attorney General: November 2007): http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp; Professor Michael Trebilcock, Report of the Legal Aid Review 2008 (Ministry of Attorney General: July 2008): http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/legal_aid_report_2008_EN.pdf. 2 Lucianna Ciccocioppo, “There is no justice without access to justice: Chief Justice Beverley McLachlin” (University of Toronto, Faculty of Law: November 11, 2011): https://www.law.utoronto.ca/news/there-no-justice-without-access-justice-chief-justice-beverley-mclachlin. 3 Kirk Makin, “Access to justice becoming a privilege of the rich, judge warns (Globe & Mail: February 10, 2011): https://beta.theglobeandmail.com/news/national/access-to-justice-becoming-a-privilege-of-the-rich-judge-warns/article565873/?ref=http://www.theglobeandmail.com&.

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According to Canadian Lawyer’s 2016 Legal Fees Survey, the national average

estimated cost of a two-day civil trial is $25,517, while a five-day trial is $56,963 and a

seven-day trial is $78,737.4 Nationally, new calls charged an average hourly rate of

$211, five-year calls charged $280, and lawyers called before 1996 charged an average

of $448 per hour.5

The challenge of providing accessible justice is heightened in tribunal practice, where

the stakes for the client may have high personal significance but often involve little or no

financial recovery, or a range of financial recovery that is far less than the projected

legal fees.

This is compounded by the fact that administrative tribunals are generally not able to

award costs to the successful party, absent a finding that the conduct of a party has

been unreasonable, frivolous or vexatious or a party has acted in bad faith.6

This paper provides tips for balancing the twin goals of providing accessible legal

services in accordance with our professional obligations, and maintaining a profitable

practice.

Client matters

1. Develop a clear understanding of what makes a “difficult client” in your line of

practice. Almost every lawyer takes on a “difficult client” at some point in his or

her career and access to justice means, theoretically, that even problematic

4 Michael McKiernan, “June 2016 – The going rate” (Canadian Lawyer Magazine: June 6, 2016: http://www.canadianlawyermag.com/author/michael-mckiernan/june-2016-the-going-rate-3292/. 5 Ibid. 6 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 17.1.

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clients can and should be able to find good representation. There is nothing

wrong with taking on a “difficult client”, provided that you do so knowingly and

enter the lawyer-client relationship with a clear view of how you will approach the

client, the case, and overcome the hurdles.

2. Consider your practice in its totality when deciding whether to take on a

challenging or less lucrative administrative tribunal matter. Maintain a file and

client mix that is well-balanced with respect to varying degrees of financial

compensation and the nature of the work required.

3. Manage client expectations from the outset of the retainer. Have a frank

discussion with the client to identify their goals and expectations, what you can

provide, and the costs and potential outcomes.

4. Consider a limited scope retainer or unbundled legal services.

5. Educate yourself about referral sources and foster connections with other

professionals to assist with matters you cannot take on.

6. Run an efficient practice but never cut corners in matters of professionalism or

risk management. Document your discussions with the client and obtain written

instructions. Have written retainer agreements and engagement letters that

clearly set out your role. Report regularly to the client on the status of the file.

Be mindful of conflicts, managing multiple clients, and other pitfalls.

File and practice management matters

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An efficient practice is an affordable practice.

1. Use technology. There are many options today for free or low-cost legal

software, apps, websites, and web-based services that can help you make your

practice nimble, portable and easily accessible to your client. Set up systems

that help you run your practice more seamlessly.

2. Consider non-traditional ways of reducing office overhead while remaining

professional. For example:

• Dedicated office space

• Shared office space

• ‘hot desks’

• Virtual office

• Law chambers

• Collaboration with like-minded lawyers

3. Consider non-traditional ways of staffing your office. Will you get more value

(and therefore be able to provide more cost-efficient legal services) from an

associate or an articling student or an assistant? Do you need full-time or part-

time staff? Do you need to employ staff, or can you hire contract staff to perform

discrete tasks? Can you share staffing overhead with other lawyers?

4. Keep an eye on your overall office efficiency and workflow.

5. Set aside time to attend to the administrative side of your practice. Keep your

files (physical and electronic) scrupulously organized and up to date. Tidy and

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purge your office (physical and electronic) periodically. Promptly bill and close

files as they conclude. Have a tickler system for outstanding administrative

tasks.

Financial matters

1. Consider alternative fee arrangements such as:

• Initial flat fee for a written opinion and recommendation

• Fixed or flat fee representation retainers

• Fixed fee menus

• Fixed fee plus hourly (eg fixed fee for preparation, hourly rate for

hearing attendance)

• Fixed fee plus success premium

• Sliding scale retainers (rates geared to income, rates geared to lawyer

role)

• Hourly with discounts

• “Fee collars”

2. Consider non-traditional ways of structuring a law firm, funding a legal practice,

or providing representation for individuals or groups that lack funds.7

7 See Andrew Pilliar, “Exploring a Law Firm Business Model to Improve Access to Justice and Decrease Lawyer Dissatisfaction” (UBC Faculty of Graduate Studies: October 2012):

https://open.library.ubc.ca/media/download/pdf/24/1.0073320/1

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3. Consider if the billable hour is a fair way to charge the client or to value your own

services in administrative tribunal matters.8

4. Have the confidence to know what your time is worth.

5. Alternative sources of funding.

6. Obtaining security to protect your accounts. Use retainer deposits, guarantees

and other forms of security to reduce the amount of time spent on collection.

7. Don’t fall behind on billing and collecting. Make this a routine.

8 See the words of Justice Belobaba in: Cannon v. Funds for Canada Foundation, 2013 ONSC 7686 (CanLII).

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TAB 2

Do’s and Don’ts of Tribunal Advocacy

Krista Bulmer, Senior Lawyer Member,

Consent and Capacity Board

September 15, 2017

Professionalism and Practice

Management Issues in Administrative Law

DO’s and DON’Ts of Tribunal Advocacy

-by-

Krista Bulmer, J.D., LL.M. Senior Lawyer Member, Consent and Capacity Board

1. DO Understand the Tribunal’s Jurisdiction, Rules and Procedures

When appearing before any tribunal, counsel ought to ensure that he or she understands the

tribunal’s enabling legislation and the legislation under which it has authority to decide. In the

case of the Consent and Capacity Board, the Health Care Consent Act grants its jurisdiction but

we also decide matters under various pieces of legislation including the Health Care Consent

Act, Mental Health Act, Substitute Decisions Act, Mandatory Blood Testing Act, and Personal

Health Information Protection Act.

Verify whether Ontario's Statutory Powers Procedures Act (SPPA) applies to your client’s

proceeding. Section 3 of the SPPA provides:

Application of Act

3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of astatutory power of decision conferred by or under an Act of the Legislature, where the tribunal isrequired by or under such Act or otherwise by law to hold or to afford to the parties to the proceedingan opportunity for a hearing before making a decision. R.S.O. 1990, c. S.22, s. 3 (1); 1994, c. 27,s. 56 (5).

Where Act does not apply

(2) This Act does not apply to a proceeding,

…

(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to makeregulations, rules or by-laws is concerned. R.S.O. 1990, c. S.22, s. 3 (2); 1994, c. 27, s. 56 (6); 2006,c. 19, Sched. C, s. 1 (1, 2, 4); 2009, c. 33, Sched. 6, s. 87.

(Emphasis Added)

Become familiar with the tribunal’s own rules of procedure, relevant policies, guidelines or

practice directions. Attend a few hearings in advance of appearing as counsel in order to get a

feel for that tribunal’s particular process and environment.

The CCB has its own Rules of Practice and Policy Guidelines that provide valuable information

to counsel about our policies and procedures that may come as a surprise to someone

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unaccustomed to appearing before our tribunal. This is particularly true given the short time frame

in which our hearings are convened. The legislation requires the CCB to schedule the hearing of

an application within seven days of receipt of the application. All of these resources are found

at http://www.ccboard.on.ca/scripts/english/legal/index.asp.

Most tribunals publicly post their rules and guidelines on websites.

It is also important to respect case-specific instructions or processes as directed by the tribunal

before which you are appearing. In the case of the CCB, its decisions are all published on CanLII

so it is important to read decisions in similar matters in order to familiarize yourself with similar

matters. Often these decisions provide guidance on matters of Board jurisdiction and procedural

issues that might arise.

Speaking of procedural issues that may be raised, look at the rules and the legislation and be

prepared to explain to the tribunal what specifically gives it the jurisdiction to do what you may

be asking it to do. Remember, the jurisdiction of tribunals is restricted by the legislation and there

is no inherent jurisdiction. Also, there will be circumstances where there may be a number of

procedural or technical issues that might require a “prehearing” or “motion” to address those

issues in advance of the hearing itself. This is something that often be arranged on request.

2. DO Obtain Instructions from Client Prior to Hearing

Chapter 3 Relationship to Clients

Client with Diminished Capacity

3.2-9 When a client's ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.

Commentary

[1] A lawyer and client relationship presupposes that the client has the requisite mental ability to make decisions about their legal affairs and to give the lawyer instructions. A client's ability to make decisions, however, depends on such factors as their age, intelligence, experience, and mental and physical health, and on the advice, guidance, and support of others. Further, a client's ability to make decisions may change, for better or worse, over time.

[1.1] When a client is or comes to be under a disability that impairs their ability to make decisions, the impairment may be minor or it might prevent the client from having the legal capacity to give instructions or to enter into binding legal relationships. Recognizing these factors, the purpose of this rule is to direct a lawyer with a client under a disability to maintain, as far as reasonably possible, a normal lawyer and client relationship….

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Meet with your client before the hearing to get instructions and ensure that your retainer is not

opposed. This arose in Gligorevic v. McMaster 2012 ONCA 115 (CanLII), an appeal from a CCB

hearing where it was argued that the Board’s decision ought to be overturned on the basis that the

appellant had ineffective assistance of counsel. In this case, counsel had been appointed by the PGT

to act on his behalf but he was not happy with her services and did not want her to act on his behalf.

She did not notify the Board and proceeded with the hearing. The Ontario Court of Appeal held that

an argument of ineffective assistance of counsel may be raised as a ground of appeal from a

treatment capacity decision of the Consent and Capacity Board, as follows:

[86] The instructions complaint falls within the first category of cases. The essence of the complaint is that PGT counsel's conduct caused the Board to unknowingly proceed on the erroneous assumption that PGT counsel was in a position to represent Mr. Gligorevic's interests at the hearing when, in fact, she was not. Thus, it is said, by reason of PGT counsel's conduct and unbeknownst to the Board, Mr. Gligorevic was without the benefit of counsel at the Board capacity hearing.

[87] This complaint has no bearing on the reliability of the Board's incapacity finding. Rather, the alleged ineffective [page345] assistance implicates the fairness of the process by which that finding was reached. Based on Dr. McMaster's uncontradicted opinion evidence and the medical documents filed with the Board, there was a firm evidentiary foundation for the Board's conclusion that Mr. Gligorevic did not meet the appreciation component of the test for capacity under s. 4(1) of the Act due to his mental disorder. Further, as the Superior Court justice held, there is no evidence in this case of any reasonable probability of a different substantive outcome on the question of Mr. Gligorevic's treatment capacity had PGT counsel's conduct been different. Accordingly, on this record, the Board's incapacity finding cannot be said to be unreliable.

[88] That, however, does not end the matter: "A reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair" (citations omitted): Joanisse, at p. 62 C.C.C. As I will explain, I conclude that a miscarriage of justice did occur in this case because the Board, by reason of PGT counsel's conduct, proceeded on a fundamental misapprehension of the facts regarding whether Mr. Gligorevic was represented by counsel at the hearing. On this basis alone, a new Board capacity hearing is required.

So, please be clear that you are retained and have been instructed. If you are unsure of your

retainer at the outset of a hearing, you should raise it with the tribunal. At CCB hearings, there

may be circumstances where counsel’s retainer has been terminated by a party and the Board

may request that counsel stay and act as amicus curiae to assist the Board during the

proceedings. The circumstances in which that is appropriate are determined on a case by case

basis.

3. DON’T Misstate Evidence, Facts or Law

There is no greater truism than “you only have your reputation.” Your own credibility will affect all

of your clients, present and future. Inspiring trust is a valuable tool of persuasion. Please know

the law and the legal test applicable to your matter. There is nothing worse than having counsel

overstate or misstate evidence or law. It may cause the Tribunal to lose confidence in the

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advocate and as a result, may question all submissions made by that lawyer in that case and

future cases.

Chapter 5 Relationship to The Administration of Justice

SECTION 5.1 THE LAWYER AS ADVOCATE

5.1-2 When acting as an advocate, a lawyer shall not

…

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,

(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority,

(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,

(h) make suggestions to a witness recklessly or knowing them to be false;

(i) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent…

If there is something challenging in the facts or evidence as it relates to your client’s case, be the

one to raise it and frame it. While tribunals can control their own process so there is some flexibility

where process is concerned, please do your best to comply with the rule in Browne v. Dunn

(1893), 6 R. 67 (H.L.), which requires counsel to put a matter to a witness where he or she intends

to present contradictory evidence on the same matter through a later witness. Opposing parties

or their counsel should be allowed to fairly respond to evidence that was unexpected and

opposing counsel can fairly object to evidence that is being advanced through a witness when an

earlier witness who could have, and should have, been cross-examined was not.

In final submissions, please do not misstate the oral evidence or facts of the case. The members

of the tribunal have all read the documents and heard the oral testimony. You lose credibility and

which is not beneficial to your client.

With respect to submissions on law, please raise authorities that may not support your legal

argument but which the Tribunal ought to be aware. Remember that Tribunals are usually highly

specialized and are quite aware of the relevant case law so if you do not refer to a case that

contradicts your position, the panel may already be aware of it and will question why it was not

raised when there is a professional obligation to do so. Where there are tribunal decisions being

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relied upon, remember that tribunals are usually not bound by their own decisions but the

reasoning of other panels can be persuasive.

4. DO Prepare

Tribunals quickly figure out which counsel are well prepared and which are not. It does not matter

the type of matter or hearing, preparation is key. As noted above, CCB hearings take place quickly

and there is very little time from the date counsel is retained to the date of the hearing. If dealing

with a client involuntarily detained in hospital, counsel should get a copy of their client’s medical

chart and review it right away. Potential witnesses need to be interviewed and secured right away,

if you determine they are necessary. Unlike matters before other tribunals, there is no time to

waste in respect of a CCB hearing. Counsel must prepare and be ready to proceed in a matter

of days.

CCB hearings are general scheduled for two hours unless the tribunal is advised that the hearing

is likely to run longer. If a hearing unexpectedly runs long, it may need to be adjourned to a new

date with a seized panel. This can be very challenging to organize in a timely manner, since it

may be that a member is going on holidays or simply because schedules of the members and

parties and their counsel do not align. So, as a practice point, if you decide there are multiple

preliminary matters or motions that need to be heard or if you require witnesses, be mindful of

how that might impact the length of the hearing and proceed appropriately. This may mean that

the hearing date needs to be rescheduled on the consent of the other party. It is a matter of

professional courtesy to notify the tribunal and the other party or other party’s representative.

Of course, this is something that we see more frequently with CCB hearings given the legislated

timeframes in respect of which the tribunal is required to adhere. However, this can be an issue

in front of other tribunals and the courts. Lawyers seem to have a universal blind spot when it

comes to estimating the length of a hearing no matter the setting, so it is better to overestimate

than underestimate where there could be an adjournment that delays your client’s matter for a

lengthy period.

It is also a matter of courtesy and procedural fairness to provide notice of any procedural motions.

If you spring an unexpected motion or procedural matter on another party without notice, they will

not have an opportunity to gather evidence or law to respond the that motion. Rule 13.4 of the

CCB Rules of Practice requires notice of any motion to be given to the parties and the Board by

4PM the day prior to the hearing.

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5. DON’T Be Uncivil

There is nothing worse than to watch counsel behaving discourteously to opposing parties,

counsel or witnesses. Please do not roll your eyes or sigh loudly when an opposing party, witness

or their counsel is speaking. It belittles the person speaking and reflects badly on you.

Chapter 5 Relationship to The Administration of Justice

SECTION 5.1 THE LAWYER AS ADVOCATE

Courtesy

5.1-5 A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings.

Commentary

[1] Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative, or disruptive conduct by the lawyer, even though unpunished as contempt, may constitute professional misconduct.

Television lawyer tactics can be awkward to watch from the perspective of a decision-maker. I

once had a young lawyer appear before the Board who became loud and aggressive with a very

calm and cooperative witness during cross-examinations. The lawyer appeared to be mimicking

tactics seen in movies or television shows and the lawyer was also chasing down numerous

issues that were not particularly relevant to the legal test. It was clear that the young lawyer was

attempting to discredit the witness but, again, the questioning was largely irrelevant and this was

not a situation where aggression was warranted. It was demeaning to the witness and

embarrassing and uncomfortable to watch from the perspective of the tribunal members. Please

be yourself and do not try to emulate others because that may not fit with your own style. Do not

try to be someone else. You will be amazed at how effective you are as counsel if you are yourself

and are helpful and well prepared.

Remember that resolute advocacy can be accomplished respectfully and with civility. I am not

suggesting anyone abandon their duty to the client to “play nice.” However, some of the most

effective advocacy I have seen in my role as adjudicator has been tenacious and resolute, and

which advances every argument, while still being respectful of the process, the parties and

counsel. I am also not suggesting that you should not become forceful where appropriate. This is

a judgement call that must be made by counsel and there are circumstances where it is necessary

to do so. However, there is never a circumstance where rudeness or incivility is called for. I can

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assure you that the tribunal members will generally be more receptive to knowledgeable, forthright

and competent counsel who conducts themselves courteously than those who do not.

Chapter 5 Relationship to The Administration of Justice

SECTION 5.1 THE LAWYER AS ADVOCATE

Advocacy

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary

[1] Role in Adversarial Proceedings - In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

As a final note, CCB hearings can involve the cooperation of various people who may not be

directly involved in the hearing itself including hospital staff, health records staff and Board staff.

In my view, civility ought to not only extend to those present in the hearing room, such as the

other parties, witnesses, counsel and members of the tribunal but it should also extend more

broadly to other stakeholders in the process, including hospital and tribunal staff.

6. DO be Cognizant of Your Surroundings.

For example, please remember that tribunal members rely entirely on our notes so it is essential

to get all the evidence down. Slow down or stop when you see the decision-maker writing or

typing furiously, seeming unable to keep up. Wait until they have stopped before you continue.

In CCB hearings it is important to be aware of how the applicant is coping and to note whether it

might be appropriate to take a break from time to time. Legal proceedings can be very stressful

to those unfamiliar with the process and the law. It is intimidating. It can also be very emotional to

hear the evidence of others. In CCB hearings, the testimony of a family member might be

overwhelming so it is important to be mindful of this and proceed accordingly.

7. DO be concise

“I have made this [letter] longer than usual because I have not had time to make it shorter.” ~Blaise Pascal

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It may seem that there is always something that needs to be said to counter what the other party

or their counsel has said during submissions but arguments must stop at some point. Be concise

in making an argument, and after both sides have had an opportunity to make submissions,

please stop. This goes back to the need for preparation.

After the tribunal has ruled, do not continue to make argument unless permitted to do so by the

tribunal.

8. DON’T Engage in Casual Banter with Tribunal Members

“Not only must Justice be done; it must also be seen to be done." ~ Lord Chief Justice Hewart in The King v. Sussex Justices. Ex parte McCarthy [1924] KB 256

It is important for the hearing process to remain professional and dignified. If you appear before

particular tribunals regularly, you will get to know the adjudicators. You may even learn to like a

few of them! It may be that an adjudicator is a former law school friend or firm colleague. No

matter how tempting it might be to catch up on your news and talk about your families or golf

game, the adjudicative process and justice is not well served when the others in the room perceive

there might be potential bias, particularly when that is not the situation. Of course, if there is

potential bias, whether actual or a reasonable apprehension of bias, there may be an obligation

to raise that issue with the panel for a determination.

The importance of the dignity of proceedings is noted in the Commentary to Rule 5.1-1 and that

it applies equally to tribunal proceedings as to court proceedings.

“Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.”

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