The break from weekly writing put this newsletter and its purpose into sharp focus. Although I …

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Last week my column in Slaw focused on the impact of poor decision-making on backlogs in our administrative justice system. In that column I gave a couple of examples of weak decisions that with a bit of forethought would likely have not ended up in the courts. This week brought two more examples. One case involved a simple failure to ask a claimant for their submissions on adverse information, while the other was a simple failure to engage with the final submissions of a claimant. Although I cannot say with 100 percent certainty that these cases would not have ended up being judicially reviewed on the merits, I can say with certainty that they would have ended up being heard only once by the court, as opposed to now likely being heard twice (first on procedure, and then on the merits).

The first case involved an application for a student visa and the alleged filing of a fake bank statement to support financial stability. The visa officer contacted the bank listed on the statement and was told that that branch did not exist. The visa application was rejected, without going back to the applicant with this information from the bank.

The second case involved a brief final level grievance decision that adopted the reasons of the previous level decision - without addressing submissions made by the applicant after that previous decision.

Both of these errors are breaches of fundamental (and basic) procedural fairness rules. An easy fix that would have saved significant court resources - not to mention the time of lawyers, administrators and judges.

More Clawbie winners

As I mentioned in last week’s newsletter, this newsletter won a 2025 Clawbie in the newsletter category. In the next few newsletters I will profile the other 2025 winners.

First up is Bow River Law’s Employment Law Blog, out of Calgary. As the name implies, the focus is on employment law - but it also includes other aspects of the employment relationship that touch on administrative law. A recent post about adding respondents to human rights complaints is of interest to administrative law practitioners.

When advocacy becomes apprehension of bias

A recent Ontario Divisional Court decision highlights the challenges of advocates for a cause deciding cases that engage the issues they advocate for. In this case involving a claim before the Licensing Appeals Tribunal (LAT) of Ontario, the court found a reasonable apprehension of bias of the tribunal adjudicator in an accident benefits case.

The accident victim had severe autism and other significant impairments when she was involved in a minor collision with a stopped vehicle while she was riding her bike. She alleged that the collision worsened her pre-existing condition, resulting in “catastrophic impairment” and sought benefits from the insurer. The adjudicator agreed with her, and granted benefits.

The adjudicator had a significant employment and volunteer history of advocating for people with autism. His younger brother has autism. The decision sets out in some detail his advocacy prior to his appointment to the LAT. However, it was his advocacy after his appointment that caught the attention of the court.

After his appointment he wrote an article for an online publication, about six months before the hearing of the case under judicial review. In the article, he advocated for greater resources for caregivers and emphasized his own experiences with his brother:

It’s not an exaggeration to say that without family members assisting with the care of their loved ones our health and social support systems would collapse.

Despite their vital role in the system, caregivers receive little to no support from our governments. Because of this, they often experience high levels of burnout, mental health challenges, and difficulties maintaining jobs.

…

So join our conversation! Check out the updates from the summit. And talk to your elected official about what they are doing to support caregivers. Together, we can make sure that caregivers get the supports we need so that we can continue doing what matters most: caring for those we love.

The issue of a reasonable apprehension of bias was raised only after the decision was issued. The LAT declined to reconsider the decision because the insurer did not raise the issue of bias at the earliest possible opportunity (discussed later). In the alternative, the LAT said that the material relied on by the insurer demonstrated only that the adjudicator could be considered as an autism subject matter expert.

Relying on the long-established test set out in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), the court concluded that “a reasonably informed person, viewing the matter realistically and practically would conclude that the adjudicator, whether consciously or unconsciously, would not decide the matter fairly” (paragraph 31). The court stated (at paragraph 36):

The concern in this case is that the Adjudicator’s advocacy for people with autism and their caregivers, continued after his appointment to the LAT. Membership in an association, without more, is not a basis for concluding that a perception of bias can reasonably be said to arise. However, the Adjudicator’s ongoing advocacy efforts following his LAT appointment to support caregivers for people with autism, previously described as his “driving force”, is sufficient to raise a reasonable apprehension of bias when he is deciding a case specifically determining whether the claimant, who suffers from severe autism, is entitled to attendant care benefits.

On the issue of the timeliness of raising the bias allegation, the court made some interesting findings (at paragraph 35).

I agree that a party cannot sit on information and wait to decide whether to proceed with an allegation of reasonable apprehension of bias. However, whether the material pre-dated the hearing is not determinative of the issue. A party is not expected to research an adjudicator in advance. There is a process in place for adjudicators and judges to self-disclose any potential conflicts or apprehension of bias. There was no evidence to suggest that the Appellant was aware of the information in advance. Further, the timing of such an allegation is not dispositive. I cannot conclude on the evidence before this Court that the Appellant delayed raising the issue for tactical reasons.

Given the high profile of the adjudicator in his pre-appointment role (he was a provincial member of parliament and actively supported initiatives around support for caregivers of those with autism) and his very public (online) advocacy for autism support, it surprises me that a sophisticated party such as an insurance company would not be aware of his background. However, there is also an obligation on an adjudicator to self-disclose matters that might raise a concern of an apprehension of bias.

Lessons for tribunals

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The year, so far, is off to a great start with a win in the newsletter category of the 2025 Clawbies. I’m in some great company of both past and present winners. I will highlight the other 2025 winners over the next few weeks.

The two other winners in the newsletter category were Supreme Advocacy and Lawdroid Manifesto. I have subscribed to Supreme Advo…

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New Year’s Resolutions

2025 has bee…

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As I have mentioned in previous newsletters, I had two presentations on AI and decision-making this month. The first was a webinar and the second one was an in-person panel at the SOAR annual conference, in Toronto. It was great to get caught up with my former Ontario tribunal colleagues, and to chat about AI. At the reception we were entertained by music students playing some very skillful jazz.

AI and the further erosion of collegiality

One of the issues I discussed in my presentations on AI was its potential impact on collegiality. Being an adjudicator can be a lonely occupation. Talking with colleague adjudicators about cases, hearing management and the law is a way of connecting, as well as validating (or not) your own development as an adjudicator. Collegiality also has an important informal role in the consistency of decisions as well as in hearing processes.

When I started adjudicating at the Public Service Staff Relations Board (as it was then called) there was a tradition of morning coffee with all the board members in town and not in a hearing. Without a formal agenda, we talked about anything and everything. As a young adjudicator it was both welcoming and sometimes eye-opening. When I was a vice-chair at the Workplace Safety and Insurance Appeals Tribunal, there was a weekly coffee meeting for those in Toronto. At these tribunals and others I worked at there was always an open door policy of colleagues to chat about cases and decisions.

Things started to change during the pandemic - for some reason, people are less likely to disturb a colleague with a phone call than they are to stick their head in your office and ask “if you have a minute…”. Some tribunals attempted to circumvent this with regular online “coffee meetings”.

AI chat bots have the real potential to further erode collegiality. Adjudicators should not be using the publicly available chat bots, such as ChatGPT and the like (I will cover some of the security and confidentiality issues around AI use in a future newsletter). However, some legal information software now has an AI “assistant” that a user can have a conversation with about legal issues. A lawyer I know once explained how he used the “assistant” to walk through some implications of a legal approach. It struck me then that this was a substitute for what I used to do in my short career at a law firm - walk down the hall and bounce an idea or two off a senior partner.

The same could happen with an expanded use of AI software in tribunals. Those starting out as adjudicators may be tempted to ask AI tools that “dumb question” they might be self conscious to ask a seasoned colleague. Or, especially with more virtual work situations, just find it easier to “chat” with AI rather than picking up the phone to talk.

In an increasingly technological world, we all need to work extra hard at fostering human connections. It not only makes work more enjoyable, it plays a critical role in consistency in administrative law.

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On vexatious litigants and insanity

In a recent Federal Court case, the court was faced with a third reconsideration request from a self-represented party. Clearly frustrated, the judge said:

[1] Insanity, says a quote widely attributed to the world-famous physicist and Nobel prize winner Albert Einstein, is doing the same thing over and over again and expecting different results. In judicial circles, the courts, out of respect for litigants appearing before them, will be very hesitant to qualify this type of behaviour as insane. However, repeating the same arguments and recourse over and over again, before the same court in the same matter, and expecting a different treatment can certainly have the attributes of frivolous and vexatious litigation amounting to an abuse of the court’s process.

[2] Regrettably, this is what the Court is faced with in this matter.

…

[4] Enough is enough. This type of recurring behaviour must be stopped for good and, with this Order and Reasons, the bell tolls for [the appellant] and his proceeding before the Court.

Although I certainly understand the frustration of the judge, I’m not sure it is wise to call a party “insane” and I would not recommend this for tribunals.

Citing the wrong statute not fatal in JR application

The Federal Court of Appeal recently dealt with a case about Old Age Security payments. However, at the Appeal Division and the General Division of the Social Security Tribunal, the decisions had referred to the Canada Pension Plan regulations, not the Old Age Security regulations.

The court could not figure out how the wrong regulations were referenced, but it noted (citing Vavilov) that a flaw or shortcoming in reasons “must be more than merely superficial or peripheral to the merits of the decision” or “a minor misstep”; it must be “sufficiently central or significant to render the decision unreasonable”: Vavilov at para. 100.

The court found that in the circumstances, the error was not central or significant as the Appeal Division “set out the test it was applying in considering whether to grant permission to appeal, applied it, and explained why each of the appellant’s arguments had no reasonable chance of success”. The court was also satisfied that the General Division applied the criteria from the OAS Act and Regulations.

The court issued a caution, though:

[18] To be clear, I do not condone errors of this kind. To the contrary, they must be admonished. Often such errors will lead to a finding that the decision is not reasonable. But even where that is not so, careless errors of this nature can “undermine public confidence in administrative makers and in the justice system as a whole”:Vavilovat para. 131. Therefore, they must be avoided.

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Relying on human experience in assessing evidence

A recent British Columbia Court of Appeal decision held that the human experience of an adjudicator can be used to assess evidence. This dispute was between a customer and a garage about repairs to a Beatle convertible. The customer filed a damages claim with the Civil Resolution Tribunal (CRT).

The CRT is an online tribunal, with a mandate to resolve disputes in a manner that is “accessible, speedy, economical, informal and flexible”, uses electronic communication tools to facilitate their resolution, and applies “principles of law and fairness”: Civil Resolution Tribunal Act, S.B.C. 2012, c. 25, s. 2 [CRTA]. The CRT has discretion to decide the format of a hearing, including discretion to hold an in-person hearing “if the tribunal considers that the nature of the dispute or that extraordinary circumstances make an in-person hearing necessary in the interests of justice”: CRTA, s. 39.

At the first level of judicial review, the BC Superior Court noted it was not patently unreasonable for the adjudicator to rely on her human experience in assessing the credibility of the evidence, relying on the statement of the Supreme Court of Canada in R. v. Kruk, 2024 SCC 7, at para. 73: “common-sense assumptions necessarily underlie all credibility and reliability assessments”. The Court of Appeal agreed with this finding.

The Court of Appeal also supported the first level judge’s conclusion that the CRT did not breach the requirements of procedural fairness by proceeding by way of written submissions and written evidence. The court confirmed the judge correctly assessed the issue through a fairness lens, noted that the applicant was not prejudiced by the manner of the hearing and had not even asked for an in-person hearing.

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Court comments negatively on key active adjudication practice

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This week’s news cycle has been dominated by the federal budget and ostriches. I have not had a chance to look at the budget in much detail, but the Canadian Bar Association has and finds it “concerning”:

The budget notably proposes to cut more than $20 million over three years from support services for administrative tribunals, which Canadians rely on as a major part of our judicial process.

One of them, the Social Security Tribunal, deals with disputes related to programs such as Old Age Security and employment insurance. With fewer resources for support services, these tribunals may be less able to handle cases efficiently.

The budget has also proposed a cut of $57.8 million in cuts to the Administrative Tribunals Support Services, the Canadian Human Rights Commission, the Law Commission of Canada, the Office of the Director of Public Prosecutions and the Department of Justice. There is mention in the budget about the use of AI to reduce costs. There are no details on how it will be used in the federal administrative justice system.

Unless you have had your head in the sand, you have also been inundated with stories about the culling of birds at the ostrich farm in British Columbia. This week the Supreme Court denied leave to appeal. The media coverage of this story serves to highlight the lack of knowledge of journalists and the public on the role of judicial review and the Supreme Court leave to appeal process.

I don’t think many (any?) administrative law professionals thought that the Supreme Court would grant leave. To be granted leave, the case must raise a question of public importance. On its website, the Court gives some examples:

• it involves the interpretation of the Constitution or constitutional rights

• it requires the Court to resolve conflicting decisions from courts of appeal

• it raises a new issue of law

In an article on the CBC website, the reporter manages to muddy the waters with a suggestion that the Supreme Court’s decision in Vavilov somehow changed the outcome of the judicial review applications of the original CFIA decision on the cull:

The article starts with this bold statement:

In his battle for Canadian citizenship, Alexander Vavilov got an opportunity denied to the owners of B.C.’s Universal Ostrich Farms on Thursday — a chance to argue his case before Canada’s top court.

In the process, the son of Russian spies set a legal threshold for decision-making “reasonableness” that would doom the B.C. birds six years later.

I do not see how the outcome of the ostrich case would have been different if the Vavilov decision did not exist. The courts would still have looked at the reasonableness of the CFIA decision. However, more egregious in the reporting is a fundamental misunderstanding of the relevant factors in a leave to appeal to the Supreme Court. The reporter states:

The Supreme Court of Canada apparently saw nothing to suggest the decision to order a cull — or any of the decisions by the judges who later reviewed the CFIA’s ruling — were unreasonable.

Of course, the Supreme Court decided no such thing - it decided that the case was not of such public importance that it was worth using its scarce resources to determine if the decision was unreasonable.

By coincidence (I’m sure), the Wombats will be playing in Toronto tonight and tomorrow night at the Danforth Music Hall. I won’t be there, but I hope someone requests “The Ostrich Song”. Here they are with a live version recorded in 2009.

Evidence and confidentiality orders

A recent decision of the Nova Scotia Court of Appeal highlights the nature of the evidence required to obtain a confidentiality order (in this case, anonymization and a publication ban). The order was made by a lower court judge in an action alleging sexual assault and harassment, as well as negligence and breach of fiduciary duty. The alleged victim was seeking the use of initials (P.J.). Media was given notice of the application but no media attended the hearing.

The chambers judge who granted the initial confidentiality order relied on information provided by counsel for the alleged victim. The Court of Appeal highlighted that evidence:

[13] Before the chambers judge, the evidence relevant to the relief sought was confined to two paragraphs in counsel’s affidavit:

13. The Plaintiff expressed to me her concern that her identity be protected during this proceeding by using a pseudonym, “P.J.”, her initials, in place of her name on all court documents and during legal proceedings.

14. The Plaintiff’s employment opportunities and/or personal relationships in her community could be negatively impacted if this order for confidentiality is not granted.

(Emphasis added)

In addition, P.J.’s written submission to the chambers judge stated that she had “suffered emotional and psychological trauma” from the sexual assault and was “very concerned” revealing her identity “could have a negative impact on her private and social relationships”. In submissions on appeal, P.J. continued to cite the affidavit evidence in support of the argument that publication “would cause irreparable psychological and emotional harm, exacerbate trauma, and discourage her meaningful participation in the litigation”.

The Court of Appeal noted that “at best” the evidence only established a concern about the potential negative impact on P.J.

The chambers judge issued an oral ruling that reads in its entirety:

The Court: … So having reviewed that, as well as the case law that’s contained within the brief that you filed, specifically the reference in M.H.B. v. A.B., 2016 NSSC 137 and the considerations there. Of course we’re always guided by the open court principle. I have considered the interests of the plaintiff in the context of the litigation and the allegations that are put forward. I’ve considered your affidavit in which you’ve outlined the negative impacts upon the plaintiff in the event that this matter were not [sic] to proceed in the absence of a pseudonym and I’m satisfied to issue an order for confidentiality for the plaintiff, P.J., in this matter.

The Court of Appeal noted that the chambers judge was not referred to the leading Supreme Court of Canada decision on the open court principle in Sherman Estate, 2021 SCC 25. The Court of Appeal noted that Sherman Estate established a new analysis requiring:

…an applicant to demonstrate an open court presents a serious risk to a competing public interest. It recognizes a public interest in the protection of sensitive information – related to the core identity of the individual – the dissemination of which could amount to an affront to the dignity of the person involved. In order to obtain an exceptional order limiting access, applicants must establish this dignity dimension of their privacy is at serious risk. Courts have recognized such a risk may exist in the dissemination of information involving sexual assault or harassment. Beyond this threshold requirement, both necessity and proportionality must be addressed. …

The court noted that none of the analytical steps from Sherman Estate were identified or addressed. The court concluded that the affidavit from P.J.’s counsel was speculative and insufficient to support a confidentiality order.

The court also set out a caution about counsel swearing facts on the merits in an affidavit, adopting the caution set out in A.B. v. United Kingdom (Attorney General), 2019 NSSC 289:

[31] The practice of a solicitor making an affidavit that swears facts going to the merits of the motion must be avoided as, invariably, it leads to counsel arguing the case on the basis of their own affidavit. Although, in the present case, a Solicitor’s Affidavit was filed, cross-examination was not requested and Mr. Dull did not argue the motion. Regardless, Solicitors’ Affidavits should be limited to purely procedural content and should not contain assertions of facts that may be in issue. Clearly, an affidavit from the Plaintiff is preferred where there are factual assertions of the Plaintiff being advanced.

Lessons for tribunals

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The Alberta government gave the province (and the teachers) a trick this week - back to work legislation with a side of the notwithstanding clause. For a good summary of why this doesn’t eliminate a p…

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The view from my office

Sir Geoffrey Vos, the Master of the Rolls1 in the United Kingdom gave a speech this week about AI. His view is that AI is just a tool like any other: “Like a helicopter or a chainsaw, in the right hands can be jolly useful, in the wrong hands jolly dangerous”.

In his speech, Vos recognizes the use of AI for legal research (with the appropriate precautions and review of the final result). What he raised as an ethical issue is the use of AI in judicial decision-making, noting that the answer to that question is “truly difficult and potentially troubling”.

After acknowledging that there may be some judicial decisions that people might want to be made by machines (personal injury damages, for example), he provides three reasons why we should be cautious about allowing that to happen:

First, judicial decisions are the last resort for everyone in our society. If the decision is wrong, at least after an appeal, nothing can be done about it in most cases – Parliament is unlikely to change the law to reverse a run-of-the-mill AI-generated judicial decision made by a machine as to personal injury damages.

Secondly, machines, even those sporting the much-vaunted artificial general intelligence when it comes, will arguably never be able completely satisfactorily to mimic a human’s emotion, idiosyncracy, empathy and insight.

Thirdly, with an AI judicial decision, you will be getting something generated from the state of intelligence at a given point in time, without the application of developing human thought. That may be fine for a while, but where will it leave us in generations to come? … it might be very difficult for human thought processes to influence the law of the future in the way that many people might think remained appropriate.

Vos called for a “serious debate” before it is too late to consider: (a) what human rights people should have in the light of ever more capable AI, and (b) what the consensus is on what people want human judges rather than machines to decide in the future.

On the first question, Vos asked whether a machine-made decision “can ever be properly regarded as having been made by an ‘independent and impartial tribunal established by law’ under article 6 of the European Convention on Human Rights and Fundamental Freedoms.

On the second question, he asked “what do we, as humans, want human judges rather than machines, to decide in the future? What do we, as a society, want machines to decide about our lives in preference to human judges, and ought we to have a choice”:

Do we want judges to feed the facts of our cases into an AI tool, to see what an AI tool, or even a range of AI tools, think the answer should be? Or would we rather stick with the grumpy old judge – or even – the vibrant young judge – whose experiences may differ one from another, and whose idiosyncrasies we cannot predict, and only the Court of Appeal can correct.

He proposed no answers - but I think those are questions that need to be discussed. Fundamentally, it comes down to people’s attitudes toward discretion. AI is not human and therefore not capable of exercising discretion. There are many people (often politicians) who do not appreciate the important role of discretion in the administration of justice. However, the exercise of discretion can be an act of compassion and empathy - which is part of the essence of what it means to be human.

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Approaches to managing backlogs

Two recent articles illustrate some of the ways that tribunals or courts can address a large influx of cases; approaches that involve more than just additional resources.

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Active adjudication and bias

I had been planning to summarize a recent case from the British Columbia Court of Appeal (Environmental Appeal Board v. District Director, Metro Vancouver, 2025 BCCA 303) on bias and active adjudication, but fortunately, Professor Paul Daly beat me to it.

The court noted that the lines of questioning from the appeal board panel “frequently strayed from any attempt to get to the substance of the issues before the Board, focussing instead on peripheral matters” that appeared irrelevant to the real issue before the board. The court also noted that “the tenor of the questioning was seemingly directed at undermining the credibility” of one party’s witnesses.

Part of the Court of Appeal decision rested on a suggestion by the appeal board that it was acting as an inquisitorial body and not an adjudicative one. The court found that it was in an adjudicative role.

Professor Daly commented:

Whether having an inquisitorial or investigatory function permits even more active adjudication than an adjudicative function is an interesting question. For my part, I think the concept of active adjudication already blurs any clear lines that might exist between the adjudicative, the inquisitorial and the investigatory. And in all contexts, there are some types of questioning — repeated, aggressive, demonstrative of a fixed position — that should be avoided. Where, as here, the parties are represented by counsel, it is wise for decision-makers to take something of a back seat and only intervene where it is necessary to get clarity on a key element. That said, in a multi-day hearing where the adjudicator is struggling for clarity on key points, this may be a counsel of perfection and, indeed, an adjudicator may well rely on counsel to intervene if any line of questioning from the panel is judged to be problematic. In this area, as in so many others of administrative law, all that can be confidently stated is that there is a line that the decision-maker should be careful not to cross.

I have written about active adjudication and bias before: “Active adjudication and impartiality” in 2014 and “The Limits of Active Adjudication” in 2016.

I disagree that adjudicators should take a “back seat” in any hearing - even if the parties are represented. Engaging with the evidence shows the parties that an adjudicator is listening. However, I agree that the tenor or tone of the questioning is critical when engaging with the evidence. Sarcasm is definitely out of the question. And, adjudicators should tread carefully when asking questions that might undermine the credibility of a witness - that is the role of cross-examination by the opposing party.

The perils of an adjudicator criticizing counsel

The Immigration and Refugee Board (IRB) has an established process for complaints against members of the IRB (individual adjudicators). A recent decision of the Federal Court shows the challenges of implementing such a process.

In this case, the complaint against the member was filed by counsel for the Minister of Public Safety and Emergency Preparedness (the “Minister”) who had appeared before the member to oppose the release of an individual from detention. The complaint was a personal one (in other words, not supported by the Minister).

The court sets out in detail the discussion between the member and counsel during the hearing. Counsel impugned the earlier decision by another member:

I understand that the Division found otherwise — found a low flight risk at the 48-hour detention review, but there is no world in which this is the case.

Referring to the applicable Chairperson’s guideline for release from detention, the counsel said:

I would go so far as to say that the guideline is flawed. …

…

And the guideline cited does not cite any jurisprudence. It is untethered to the law. It only cites itself. It is incestuous. It cites other Chairperson’s Guidelines.

Later in the day, the member issued her oral decision (holding that the individual would not be released). She then made comments to counsel and specifically told the interpreter that there was no need to translate (leading to the implication that her comments were not part of her decision). Since these comments are central to the complaint they are worth setting out in full:

Thank you. All right. I just want to conclude this decision by saying that, in this Division’s view, there are certain aspects of the Minister’s Counsel submissions that I believe deserve some comment.

Over the course of the Minister’s Counsel submissions, there were some very pointed words and phrases that were used to describe findings made by this Division and the guidelines relied on by this Division in reaching those findings.

Minister’s Counsel, in submissions, referred to the Guidelines as being ‘flawed, incestuous, and completely redundant.’ These types of comments, in my view, set a dangerous precedent and could bring the administration of justice into disrepute.

I feel obliged to remind the Minister’s Counsel that these guidelines were crafted and refined over time with the assistance of several stakeholders, including the CBSA, and the Federal Court has also upheld the use and existence of these guidelines and has referred to them in many cases.

Counsels who present before this Division can argue that the law should be distinguished or not applied, as the case may be, but to suggest that our guideline overall is incestuous is, in this Division, you showing contempt for this Tribunal and the decision-making process.

And similarly, with respect to the findings of the previous detention review, the Minister’s Counsel has submitted that it is not based on any lawful or substantial analysis. And when referring to the findings made by the previous presiding Member that the person concerned represented a low flight risk, the Minister’s Counsel submitted that “there is no world in which this is the case.”

I am surprised that I have to remind the Minister’s Counsel that his role is not that of a reviewing court. The Minister, of course, has to represent the Minister’s position, but presumably in a way that respects the values enshrined in the code of conduct for public servants. It was open to the Minister to seek judicial review of the previous decision, and the Minister may also ask this Division to revisit its previous findings if there is reason to depart from those findings, but it should not be done in a way that expresses, essentially, disdain for the IDs decisions and decision-making process.

So, going forward, I am going to remind the Minister that all parties before the Immigration Division are expected to please present their cases in a professional manner that upholds the rule of law and demonstrates respect for the process and for this Division.

On the same day as the hearing, the counsel filed a complaint form and submitted it to the Ombudsperson of the IRB. The counsel stated that the member was in breach of the following sections of the Code of Conduct for Members of the Immigration and Refugee Board of Canada:

9. Members shall conduct hearings in a courteous and respectful manner.

10. Members shall exercise their duties without discrimination. Members must take reasonable measures to accommodate all participants in a proceeding so that they may participate effectively. Members are expected to take into account social and cultural differences and to respect human rights.

11. Members are expected to act honestly and in good faith, in a professional and ethical manner

12. Members shall conduct themselves with integrity and avoid impropriety or the appearance of impropriety.

In his complaint form, the counsel said that the phrases “in no possible world” and “incestuous” were used “respectfully and were well within the bounds of normal and proper advocacy”. He continued by stating that the member breached the Code in the following ways:

1. Attacking Minister’s counsel on record in a public hearing, making serious allegations of professional misconduct, in full knowledge that Minister’s counsel would be unable to defend himself. This was an abuse of power. It served no purpose and touched on no live issues at the hearing. In leaving this attack to the end it was implied that the perceived lack of courtesy was of the greatest importance, above and beyond the issues at the hearing and the decision itself.

2. Making accusations of a personal nature, against Minister’s counsel, which were untested, biased, and false.

3. Implying that the IRB Chairperson’s Guidelines were beyond critique. The Member said that “owing to the lengthy consultation process involving multiple stakeholders” it was inappropriate to speak against the Guidelines. The Member chastised Minister’s Counsel for doing so.

4. Telling Minister’s Counsel that, if he takes issue on a point of law raised at the previous detention review, the appropriate solution is “to seek judicial review”.

5. Warning Minister’s counsel that the diction of his pleadings should not deviate from bounds predetermined by [the member].

He also made the following comments about the member’s behaviour in the hearing room:

The [member] was discourteous and disrespectful. She made an inappropriate and personal attack against a representative of a party and did so in an unprofessional manner. There are issues of law which, as part of their duty, advocates must raise. [She] acted in a manner so as to discourage open and honest pleading. Parties cannot participate effectively in a proceeding under apprehension of punishment for doing their duty in arguing issues of law. Members cannot make effective decisions if they do not entertain and listen to such pleadings.

There is a reasonable apprehension that [the member’s] expressed personal dislike for Minister’s Counsel will impact future hearings.

The [member] should be aware that there exist a variety of manners of expression and should avoid arbitrarily penalizing manners of expression which differ from her own.

In the judicial review application, the complaining counsel set out the following elements of the member’s comments that were problematic:

• her statement that his comments “set a dangerous precedent and could bring the administration of justice into disrepute”;

• her suggestion that he was “showing contempt for this Tribunal and the decision-making process”;

• her suggestion that he might not have acted in a manner “that respects the values enshrined in the code of conduct for public servants”; and

• her finding, in essence, that he had acted in a way “expresses, essentially, disdain for the [Immigration Division’s] decisions and decision-making process”.

The counsel maintained that his submissions were “entirely professional and within the bounds of normal and proper advocacy.” He also stated that the member’s comments damage his reputation.

The IRB Procedures prohibit complaints about what a member decides in a case, or questions related to procedural fairness and natural justice. In the letter dismissing the complaint (based on the recommendation of the Ombudsperson) the IRB Chairperson wrote:

… [the] complaint is about what the Member stated while giving her reasons for decision. The reasons presented in a member’s decision are covered by adjudicative independence. For this reason, the allegation falls outside the scope of the member complaints process. The Ombudsperson has recommended that I dismiss the complaint because the allegations are not within the scope of the member complaints Procedures.

In the end result, the court found that the reasons of the Chairperson were “not responsive”, did not “meaningfully grapple with the issues” and lacked “a rational chain of analysis”. For these reasons, the judicial review was granted.

There are a few findings and asides that are, however, relevant to adjudicators.

Firstly, the court determined that the Code of Conduct applies to members during hearings “including in the delivery of their decisions and concluding remarks”.

Secondly, the judge stated in words he described as “obiter dictum” and “non-binding” that “these comments taken together certainly could damage the Applicant’s professional reputation”. The judge also stated that the counsel’s comments “were within the range of permissible comments by counsel in context”.

I am no fan of “obiter dicta”, especially when the judicial comments seemingly tie the hands of the decision-maker, as they appear to do here. I suppose that there may be an element of efficiency at play here, as the judge appears to be saying that if the complaint is once again dismissed by the IRB Chair, any subsequent judicial review would be allowed. However, that becomes just a cute way for the court to decide the matter on its own.

Lessons for tribunals

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Given the importance (I think) of what may be an expansion of the duty of accommodation for tribunals contained in a new decision from the Federal Court, I have made this post fr…

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I have been immersing myself in learning about Artificial Intelligence (AI) as I prepare for two presentations in November (more details in the next newsletter). I refuse to use AI for writing but I have dabbled a bit in using it for research - mostly for my other vocation - as a jazz DJ at CKCU FM. This week I was doing research for my show that aired on Wednesday on tenor sax player Billy Harper. I was using Co-Pilot, the AI that comes with the browser Microsoft Edge. I realize that this is not the AI tool that lawyers and professionals would routinely use - but it is one that might easily be used by self-represented parties. This is troubling. I was asking Co-Pilot for easily verifiable information - in this case, albums that featured solos by Billy Harper. Co-Pilot directed me to albums that he did not appear on - and even described his “soaring” playing on these albums. Of course, I received a profound apology each time I corrected it. I do know how to research discographies and verify information - but someone who does not know how to go about verifying information would likely rely on this erroneous information.

The embarrassment of referring to an album with the wrong lineup is not, in the scheme of things, a big one (although it could affect one’s reputation as a DJ). The danger is using AI for more important or consequential decisions.

The Saskatchewan Access to Legal Information project has prepared a guide to using AI for legal research. It emphasizes the importance of the prompts used:

How a question is worded can impact the accuracy and quality of AI-generated information. Well-structured prompts (questions) may reduce, though not eliminate, the risks.

Melanie Hodges Neufeld recently documented her efforts to obtain legal information about the Saskatchewan Assessment Process for challenging a lawyer’s account using ChatGPT-5. I recommend looking at the prompts she used and the subsequent refining of those prompts. Her conclusion was that, although an improvement over earlier versions of ChatGPT, gaps were still evident. Her conclusion was:

Based on my experiment and those of others …, the content generated by ChatGPT cannot be the only step involved in developing a legal information resource for the public. … It is a good starting point, not the end product.

ChatGPT does not agree - today I got a marketing email that reads, in full:

You don’t need a plan or the perfect question to use ChatGPT.

Just start typing whatever’s on your mind — a half-baked idea, a random question, a weird “what if.”

ChatGPT is built for all of it.

No pressure. No perfect prompts. Explore ideas, create images, write stories, and summarize files in just a simple conversation.

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Admissibility of surreptitious recordings

In a recent Federal Court of Appeal decision, the court addressed the decision of the Canada Industrial Relations Board not to admit as evidence surreptitious audio recordings that an applicant made (Fearing v. Canada Council of Teamsters, 2025 FCA 167). The court noted that the Board can reject evidence “in its discretion” and “as it sees fit” whether or not admissible in a court: Canada Labour Code, R.S.C. 1985, c. L-2, s. 16(c).

The court stated that the Board drew on its labour relations experience and expertise and its earlier decision in Valenti and CUPW, Re, 2018 CIRB 866 at paras. 8-11, in concluding that the regular admission of surreptitious recordings would be damaging to labour relations. The court found the ruling to be reasonable. However, the Board has not posted its original decision online - so we cannot see their reasoning.

The Valenti decision gives us a sense of how the Board approached the request in this case. In Valenti, the Board referred to an earlier Board decision for the rationale for usually excluding surreptitious recordings (D.H.L. International Express Ltd. (1995), 99 di 126):

It must be remembered that parties who appear before the Board typically continue in an ongoing labour relations relationship with one another. The successful functioning of that relationship is dependent, as far as possible, on mutual trust and respect. It is difficult to imagine how open and frank discussions, in an atmosphere of mutual trust and respect, could be carried on if either party was concerned that the other might be recording the conversation to be played back to the Board or in another forum at some subsequent period of time.

Were the Board to adopt a broadly permissive policy with respect to the admission of surreptitiously recorded evidence, it is not difficult to envisage how proceedings before it could become inexorably protracted by applications to have the recordings in question properly proved in an evidentiary fashion similar to that in the courts. Nor is it difficult to anticipate adjournments requested in order to permit the tapes to be analyzed by experts, not to mention the introduction of expert testimony relating to the recordings in question. Without attempting to overstate the case, to allow this type of evidence without restriction, would open an evidentiary Pandora’s box from a labour relations perspective. This is particularly so when one keeps in mind the objects and purpose of the Code and the Board’s role in the implementation of the same.

(pages 137–138; and 310)

In Valenti, the Board noted the ubiquity of mobile devices and the challenges that would ensue if such evidence were to be “submitted freely and without restriction”. It stated that admission “would create an atmosphere of mistrust, which would not be conducive to having open discussion or resolving labour disputes”. The Board noted that each case must be examined on its own circumstances. It set out a non-exhaustive list of criteria to consider in determining whether to accept such evidence:

• The burden of proof that must be met;

• The adverse effects of the recordings on the parties’ labour relations;

• The reliability of the audio evidence;

• The parties’ ability to present testimonies and thus allow for cross-examinations;

• The need to ensure a fair process; and

• The need to ensure full disclosure of the evidence, which will in turn promote the timely resolution of the matter.

The Board also noted that the party seeking to introduce such evidence would be required to demonstrate “that the same evidence cannot be obtained through other means and that it is of such probative value as to outweigh any negative or prejudicial effect it will have on the process or on the relationship between the parties”.

In 2006, I was faced with a request for admission of a surreptitious recording of a supervisor. I found that the evidence was not relevant to the issue before me (jurisdiction) but I did note that, “[g]enerally, the surreptitious recording of conversations in the workplace should not be encouraged”. In a 2007 decision, I also ruled against the admission of surreptitious recordings of settlement discussions. I held that admitting the recordings would be contrary to labour relations policy, “as the surreptitious recording of settlement discussions should not be encouraged”. In addition, the participants in the settlement discussions were available to be called as witnesses.

Lessons for tribunals

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The Pont Saint-Bénézet, also known as the Pont d’Avignon - of nursery rhyme fame.

During my two weeks of sun and amazing food, I mostly ignored the news and took a break from administrative law. It was h…

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Beth and I had a longstanding relationship. I worked for her mother (Beryl McLeod) for ten years - from age 14 to 24, part-time, at a used bookstore in the Glebe (Ottawa) and met her when she cam…

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