AI and the further erosion of collegiality

Comments from recent presentations, plus case briefs on vexatious litigants, referring to the wrong statute and cautions on using active adjudication

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.

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.

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.

Court comments negatively on key active adjudication practice