End of Summer/New Beginnings Edition
And now back to regular programming: the requirements for a finding of contempt and the continuing failure of the CBA to include tribunals in their positions on administration of justice
National Archives in Ottawa, September 4
I’m back to weekly newsletters after a month off, recharging and researching. I broadcast the first part of a multi-part series on jazz at the Chateau Laurier from 1982-84. Part 1 was a review of the eleven (!) guitarists who played there for 6-day stints. I also broadcast a show featuring new releases from Canadian female jazz vocalists.
I also had another column published on slaw.ca about the need to reassess the residency requirements for full-time federal tribunal members. The federal government is reviewing the residency requirement for Federal Court and Tax Court judges but has inexplicably not included full-time federal tribunal members in the consultation.
The failure of the Canadian Bar Association to recognize tribunals’ role in the Rule of Law
The organization that represents lawyers federally (the CBA) is rightly concerned with the administration of justice and the rule of law, but seems to have a blind spot. Its focus in a recent policy position and in the statements of the CBA President at the start of her term has been solely on the courts, to the exclusion of administrative tribunals. The courts are, of course, important institutions in the Rule of Law - even though a majority of Canadians will never be in one. Tribunals are at the “front lines” of the delivery of justice and people are more likely to have an interaction with the administrative law system. In my slaw.ca column I noted:
The CBA did not mention federal specialized tribunals with the same residency requirements and Budget 2024 makes no mention of federal tribunals either. It appears that the CBA neglected to consider this issue – or does not share a concern about barriers to appointments to federal tribunals. Of course, more lawyers aspire to an appointment to the bench than to a federal tribunal so there may be self-interest at play as well.
The new president of the CBA, Lynne Vicars, noted the importance of trust in the legal system in a recent interview and yet did not mention tribunals at all:
Public confidence in our legal institutions is a core principle that underpins our legal system. It can’t survive without it. The justice system derives its authority from the trust and cooperation of the public it serves, so it's crucial that we educate the public about the importance of judicial independence and how that interplays with the rule of law. [emphasis added]
When asked what her “yardstick” would be to measure success during her term as president she stated:
Have we moved the dial forward on public education of the importance of our judicial institutions and have we increased trust in justice? It’s difficult to measure to know if we’ve been a complete success, but if we have moved things forward — that's going to be the metric I'm looking at. [emphasis added]
I did note in my slaw.ca column that overlooking the residency requirements for federal full-time tribunal members was likely an oversight. I’m certain that the CBA will correct this oversight once it is drawn to their attention.
And the CBA’s focus on judicial independence is an important role for a lawyers’ organization. But that focus should not be to the exclusion of tribunal independence and trust in our administrative justice system.
Illustrative of the CBA’s “blind spot” is that they have a section for judges with the following objectives:
Promote the views and interests of judges within the CBA
Provide a means for judges to participate in the CBA which respects judicial independence
Offer a forum for judges of all Courts to exchange information with other judges and members of the Bar
Develop CBA member services for judges
And yet, no section for tribunal members - which perhaps is why the “views and interests” of tribunal members are not promoted within the CBA.
As Tribunal Watch Ontario and others have warned - there is a severe attack being mounted against tribunals that has “flown almost entirely under the radar”. Where are the CBA and the provincial branches of the CBA on these issues that are critical to a functioning justice system?
Contempt and breaching a tribunal order
I recently came across a research paper I wrote for the Department of Justice about 30 years ago on tribunals and the contempt power. I have not spent much time thinking about this since, but the recent Federal Court of Appeal (FCA) decision in Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2024 FCA 136, demonstrates that not much has changed: the contempt power is to be used sparingly.
The Teamsters Canada Rail Conference (Teamsters) alleged that the Canadian Pacific Railway Company (CP) was in contempt of court for failing to comply with a labour arbitration award which had been registered with the Federal Court. The Federal Court agreed and found CP in contempt for some, but not all, of the asserted violations (Teamsters Canada Rail Conference v. Canadian Pacific Railway Company, 2023 FC 796). The FCA allowed the appeal, finding that the Federal Court “misdirected itself as to the law of civil contempt” (a very polite way of saying it was wrong). The Federal Court was wrong in these ways:
It found contempt in the absence of intent, effectively treating contempt as a strict or absolute liability offence
It jettisoned the “directing mind principle”
It excluded due diligence or reasonable efforts defences from its analysis
The test for civil contempt relied on by both levels of court was set out most recently by the Supreme Court in Carey v. Laiken, 2015 SCC 17, at paras. 32-35. The party alleging contempt must prove beyond a reasonable doubt that:
the order or judgment at issue clearly and unequivocally states what should be done or should not be done;
the alleged contemnor had actual knowledge of the order or judgment;
and the alleged contemnor intentionally did or omitted to do the act compelled by the order or judgment.
CP conceded that the first two elements of the test were met, and the issue rested on the third element. The FCA found that the Federal Court had misapplied this third element.
The FCA was also critical of the Federal Court for not adequately considering its discretion to find, or not find, contempt:
[69] Even if all of the criteria in support of a finding of contempt are met, judges retain discretion in finding contempt (Carey at paras. 36-37), and the failure of a court to consider its discretion in exercising its contempt power is an error of law (Chong v. Donnelly, 2019 ONCA 799, [2019] O.J. No. 5048 at para. 12).Here, the Federal Court mentioned its discretion in its reasons (Federal Court decision at paras. 61 and 81-82) but went no further. Reasons cannot simply make note of the correct legal test, then fail to apply it (R v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405 at para. 13). The judge’s reasoning with respect to discretion was purely conclusory and does not allow this Court to understand why the judge chose to exercise her discretion or not.
[70] Contempt is a power that must be exercised lightly. It is a remedy of last resort, and it should not be used as a means to enforce judgments (Carey at para. 36). Judges entertaining contempt motions must seriously consider their overriding discretion in light of the purpose of contempt, and all other relevant circumstances, including the behaviour of the contemnor and the nature of the order.
Insight into the federal appointments process
The “Report Regarding Appointment of the Chief Commissioner of the Canadian Human Rights Commission” prepared by Filion Wakely Thorup Angeletti LLP has been released. It provides, under Allegation 14, an overview of the appointment process. As someone who has been through this process a few times, I did not learn anything new - but the report does provide some insights for the public into the interview process and the vetting process. For example, the report reproduces the standard wrap up question from the Privy Council Office (PCO) representative:
The report also provides information on the various background check and disclosure forms required to be completed in the application process. The report also indirectly supports the views of many that the selection process is lengthy and cumbersome - Birju Dattani applied for the position in June 2022 and was not initially appointed until 2024. It should be noted that the mandate of the report writers “did not include a review of the policies or procedures in respect of vetting candidates being considered for Governor in Council (“GIC”) positions and/or GIC appointees generally, or what was done in the case of Mr. Dattani’s recent appointment” (emphasis in original).
Recent cases of note
Further evidence of the impending death of boilerplate decisions
In Shaikh v. Canada (Citizenship and Immigration), 2024 FC 1365, another judicial review of a visa officer decision relying on boilerplate reasons, the court quickly gave short shrift to the government’s argument about “logical inferences”:
[9] The Minister proposes a number of reasons why the visa officer might possibly have been dissatisfied with Mr. Shaikh’s application. Given the paucity of reasons, I do not accept that any “logical inferences” can be drawn from the bald statements in the GCMS notes and the evidence to be able to understand the visa officer’s analysis. Rather, the Minister’s arguments essentially attempt to create an analysis that is simply absent from the visa officer’s decision. The Court on judicial review cannot “fashion its own reasons in order to buttress the administrative decision” or “substitute its own justification for the outcome”: Vavilov at para 96.
Expressing prelim opinion and doing research not apprehension of bias
In Lopez v. Bank of Nova Scotia, 2024 FC 1372, the Federal Court confirmed that an adjudicator expressing a preliminary opinion and doing their own research does not result in an apprehension of bias:
[66] The Adjudicator clearly reviewed the matter before them, asked questions to the parties about matters relevant to issues before them (e.g. admissibility and impact of Settlement Offer) before rendering its decision, shared preliminary thoughts on legislative provisions and jurisprudence they were aware of or their research had revealed, invited the parties to make submissions thereto giving both parties sufficient time to respond and a chance to persuade them one way or another. Apotex Inc. v Canada (Health) 2017 FC 127 [Apotex] at paragraphs 68 to 69 held that the forming of a preliminary opinion does not, in and of itself, suggest bias. Brampton (City) v Robinson, 2018 ONCJ 839 [Brampton (City)] at paragraphs 12 to 13 also held that the fact that an adjudicator concluded some of his own research does not necessarily suggest bias. In some cases, like Brampton (City), it is necessary for adjudicators to do their own research and then request submissions on that research (Brampton (City) at paras 12-13; R. v. Barlow, Augustine and Augustine, 1984 CanLII 4306 (NB KB) at paras 11 – 17; Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2020 ABQB 10 at para 172).
This case also contains a useful summary of settlement privilege (at paragraph 41) and functus officio (at paragraph 47).
Links of Interest
Allegations of investigator bias evaluated by Federal Court
Overall, there are several practical steps we can takeaway from this case to combat perceptions of bias in investigations. First, when in doubt, ask yourself, what am I investigating? What is the crux of the case, and did the parties have an opportunity to respond? It’s easy to get deep into the weeds of a case but circling back to the core issues can help to keep us on track. Second, to demonstrate our consideration of issues, we should document our decisions regarding process in a written report, also making sure to include steps that we choose not to take. In Whitelaw v. Canada, the Court relied on the investigator’s note in the report about why certain witnesses were not interviewed. Third, we should demonstrate our neutrality by treating parties in a similar manner, when possible, and documenting when we do so. The Court noted that the investigator similarly did not interview all witnesses suggested by either party. Fourth, we can excerpt relevant documentary evidence in the report, so that any reader (in this case, the Court) can have a better understanding of what was considered and why decisions were made.
ChatGPT on trial: Responsible AI use in the courts
As the AI hype continues, we must not forget responsible AI principles such as transparency, accountability and selecting an appropriate tool for the task at hand. This is even more critical when legal rights, remedies and access to justice are at stake.
Plain Language Tools as a First Step in Dispute Resolution
…The explanation of rights and obligations in a plain language and helpful format such as a legal guided pathway assists in clarifying any misunderstandings. The addition of templates to facilitate a conversation to resolve the dispute before it enters any formal complaints process or dispute resolution mechanism is key to preserving the relationship. …
AI is not the panacea to translate court rulings
Judicial opinions communicate a court’s conclusions and its reasons by presenting a structured discussion of the facts, legal principles and governing authorities involved in a case. It is a medium that articulates, discusses and explains the legal rationale behind an opinion, says Karim Benyekhlef, director of Cyberjustice Laboratory and a law professor at the Université de Montréal.
“Law is an art of subtlety in words,” he says.
“Using AI to translate an instruction manual for assembling an IKEA table is fine. But at this stage, it's not possible to translate judgments, especially those of the Supreme Court of Canada, using automated tools alone, however well-developed they may be. They make mistakes.”
Adopting, Designing, and Evaluating Online Guided Pathways
Self-represented litigants (SRLs) have repeatedly identified overly complex court forms as a major source of confusion and frustration. Digital guided pathways have been identified as one possible means to reduce barriers that the public experiences with court forms – but how effective are guided pathways as access to justice measures? Do they make court forms easier to fill out? If so, how can they be optimally designed and evaluated? This article reports on research seeking to answer these questions through a case study of family law guided pathways developed by Community Legal Education Ontario (CLEO).
This study yielded two major conclusions. First, guided pathways can significantly reduce complexity for SRLs and, thus, other jurisdictions should consider adopting them as access-enhancing measures. Second, when designing and evaluating the design of court form guided pathways, a functional literacy framework, combined with user data and human testing, can be helpful in identifying barriers.
Broken promises: The perils of guaranteeing anonymity to complainants
Ultimately, an investigator should avoid securing the complainant’s participation by exaggerating their ability to protect the identity of the complainant – doing so could jeopardize the complainant’s trust in the investigation process and their willingness to continue to participate in the investigation if their identity becomes known to the respondent.
The difference between editing, copy-editing and proofreading
Editing, copyediting, and proofreading are distinct stages in preparing written content. Editing improves the overall content, structure, and clarity, ensuring the writing communicates its message effectively. Copyediting is often provided by most journals and focuses on grammar, punctuation, spelling, and consistency, correcting errors and adhering to a style guide. Proofreading is the final review, checking for minor errors, typos, and formatting issues to ensure the text is polished and error-free before publication.
It’s important to note the difference specifically between editing and proofreading. An author should edit a journal article early on to improve content and clarity. Proofreading should be done at the final stage to catch minor errors and ensure the manuscript is polished before submission.
Upcoming training and conferences
I will highlight upcoming training and conferences for adjudicators as often as I can. If you have any training you’d like me to feature, please message me.
Plain Language: Building Results (Foundation of Administrative Justice - online): September 9-11, and December 2-4, 2024
Get Faster, Get Fairer - Improving Case Management and Your Process (Foundation of Administrative Justice - webinar): September 12th, 2024
SOAR's 36th Annual Conference - The Rhythms of Administrative Justice: Changing Tempos, Changing Times: November 14, 2024
New beginnings
Over the coming weeks I will be setting up a subscription option for this newsletter. Eventually part of the weekly post will be behind a paywall, as will any additional content that I might produce. How much additional content that will get produced will likely depend on the number of subscribers, so stay tuned!
I’m always open to feedback on content - so let me know what you would like to read and hear. As always, I appreciate your support.