Incompetent representation and judicial review

Incompetent representation as a breach of procedural fairness is a rare argument but recent cases in immigration law provide a useful framework

The first full week of September always feels busy, all of a sudden. Which is why this sign in my neighbourhood resonated, I guess.

Incompetent representation as a ground of judicial review

The argument that incompetent representation has led to procedural unfairness is not often raised in judicial review applications. I have often wondered why it is not raised more often. There is established jurisprudence from the Federal Court in the immigration area on this very issue. This guidance from the Federal Court provides a good framework for a discussion about the role of what many adjudicators call “under representation” in procedural fairness.

The Federal court has held that to support an argument that incompetent representation resulted in procedural unfairness, three criteria must be established: 1) former representative must be given notice of the allegation, 2) the former representative’s actions or omissions must amount to incompetence, and 3) there must be a miscarriage of justice due to those incompetent acts or omissions (Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at paras 36–37).

In these applications, the evidence relied on by a judge will usually be an affidavit and the tribunal record (including the decision). It is important that the representative who was allegedly incompetent provide an affidavit with their side of the story, as demonstrated in Brown v. Canada (Citizenship and Immigration), 2024 FC 105:

[46] The letters of former counsel are seriously wanting in this regard. I appreciate that they are the representations of a member of the bar and an officer of the court. However, former counsel figures in this matter as an interested party who has been drawn into the fray. She has a direct stake in the outcome. She purports to provide evidence on material issues. As such, her written representations are not entitled to any special consideration by virtue of her professional status: see Pluri Vox Media Corp v Canada, 2012 FCA 18 at paras 5-7. Moreover, as a result of the form in which former counsel’s account of relevant matters is before the Court (letters attached as exhibits to an affidavit filed on behalf of the applicant), that account cannot be tested by way of cross-examination.

[47] For these reasons, I am not prepared to give any evidentiary value to the letters from former counsel on any point where they are inconsistent with the applicant’s account. Consequently, the applicant’s account, which was provided in an affidavit on which he was not cross-examined, stands unchallenged and uncontradicted.

The person making the argument (the applicant) has the onus of establishing that the representative’s conduct fell outside the range of reasonable professional assistance. However, there is a “strong presumption” that the conduct fell within the range (Aluthge v Canada (Citizenship and Immigration), 2022 FC 1225 at para 36).

To satisfy the third criteria, the applicant must demonstrate that, but for the alleged conduct of the representative, there is a reasonable probability that the result in the decision under review would have been different. This test does not require certainty. A “reasonable probability” is one that is “sufficient to undermine confidence in the outcome” and “lies somewhere between a mere possibility and a likelihood” (Singh v Canada (Public Safety and Emergency Preparedness), 2023 FC 743 at para 38).

In Tasdemir v. Canada (Citizenship and Immigration), 2024 FC 1340, the court noted:

[62] This Court has held that where a decision-maker specifically refers to a lack of evidence, the failure to submit evidence can cause prejudice to an applicant, particularly where the counsel provides limited submissions [see Kim v Canada (Citizenship and Immigration), 2012 FC 687 at para 24; Kaur v Canada (Citizenship and Immigration), 2022 FC 221 at paras 40-41; Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at paras 25-27, 36]. Such is the case here. I find that the deficient evidentiary record filed by the Intervener [the representative], coupled with his deficient legal submissions, prejudiced the Applicant on the application to reopen.

The recent decision in Kaur v. Canada (Citizenship and Immigration, 2024 FC 1381 is an example of a successful judicial review of a Refugee Appeal Decision (RAD) that dismissed a refugee claim on the basis of credibility. The court found:

[5] First, as stated above, Mr. Singh [the representative] has been notified of these proceedings.

[6] Second, Mr. Singh was incompetent by not providing critical evidence and by misleading the tribunal regarding the absence of critical evidence. The Refugee Protection Division and the RAD both noted that the Applicant was, in large part, not successful because she did not provide evidence from her boyfriend, the most important witness, on the central element of her claim. Moreover, Mr. Singh misrepresented the reason why such evidence was not submitted, indicating that the witness was not willing to provide the evidence when, in reality, the witness was not asked to do so.

[7] Finally, I am satisfied that the incompetence of Mr. Singh resulted in a miscarriage of justice. The RAD identified evidence from the Applicant’s boyfriend as having the potential to support “the central allegation from which all her other allegations flow.” The absence of such evidence without a reasonable explanation seriously damaged her credibility, in the RAD’s opinion.

[8] Therefore, I am satisfied that in the absence of her incompetent representation, there is a reasonable probability that the outcome of the RAD’s decision would have been different.

These cases highlight the need for more focus on “under representation” and access to justice - most adjudicators feel that there is more latitude in the hearing room to assist a self-represented party than one who is poorly represented. Although it’s an understandable view, there’s no reason to treat the two situations differently. Access to justice requires active adjudication in the hearing room, whether a party is represented or not.

Links of interest

Sealing order and the open court principle

For the Court of Appeal, the open court principle is engaged by the Appellant’s request for a sealing order and openness ought to prevail. One may juxtapose this result against the Court’s recent decision in Lesage v. Ontario (Attorney General), 2024 ONCA 500 (CanLII). In that case, the Court upheld a decision which found the open court principle was not engaged and need not be explicitly balanced against the principle of judicial independence as it relates to information which could be used to determine the ‘disposition time’ and ‘clearance rate’ at the Ontario Superior Court of Justice.

However, in this case, the Court of Appeal took note of Centa J.’s observation that cases which allege serious government wrongdoing must be “litigated in public” and “sunlight remains the best of disinfectants”. (See para. 12; citing Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 at para. 37). So, while there are “serious and important” privacy and safety concerns raised by the Appellant, “those concerns could be adequately addressed by redacting”. (See para. 12).

In-person or remote at labour arbitration hearings?

Arbitrators have consistently acknowledged that, despite initial perceptions in the “before times”, videoconferencing has proven to be a fair, cost-effective means of arbitrating grievances under collective agreements. As a result, arbitrators have repeatedly concluded that videoconference hearings present an equal access to and quality of justice as an in-person hearing. Further, arbitrators have noted that the vast majority of arbitration hearings in Ontario continue to be held by means of videoconferencing on the agreement of the parties. Therefore, arbitrators have refrained from ordering an in-person hearing absent a compelling reason that is demonstrated by the objecting party and necessitates proceeding in this manner.

Critical reflection: Ethical marketing of conflict resolution services

One thing I’ve noticed is that many practitioners describe their process based on broad and generalised theoretical descriptions of mediation.  These descriptions are often not easily understood by laypeople, and sometimes can be misleading. Very few mediators explain in their documentation what will happen in the room (e.g. what steps are involved in their process, what kinds of interventions they use and why).  They may well explain in more detail in their initial conversations with prospective clients or during intake / pre-mediation sessions, but this information is not publicly available for review.

AI chatbot shows promise in talking people out of conspiracy theories

The team recruited more than 2000 participants who professed a belief in at least one conspiracy theory, which they define as the belief that important events or situations—the Kennedy assassination or the COVID-19 pandemic—were secretly orchestrated by powerful people or organizations. Next, they had these people engage in a brief conversation with an LLM chatbot. Each person shared with the AI what they believed, the evidence they felt supported it, and rated how confident they were that the theory was true. The chatbot—trained on a wide range of publicly available information from books, online discussions, and other sources—refuted each claim with specific, fact-based counterarguments. These conversations reduced people’s confidence in their conspiracy theories, on average, by 20%.

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Part of the reason debunkbot is so successful, Van Prooijen reasons, is that it remains “very polite,” whereas human conversations about similar topics can easily get “heated and disrespectful.” And whereas someone might worry about friends or family members judging them for altering their beliefs, it’s impossible to “lose face” in front of an AI model, he adds.

The Misguided Appeal of the Aggressive Lawyer

The path to winning cases is planned and professional. Save bombastic accusations and aggressive phrasing for the writers in Hollywood. They have no place in the courthouse.

Award season

Nominations are open for the annual award of the Society of Ontario Adjudicators and Regulators (SOAR) — The SOAR medal. The medal is awarded to:

…those who have made a significant contribution and demonstrated their commitment to the field of administrative justice, who have been dedicated and active members or supporters of SOAR, and/or who have made a significant contribution to the administrative justice field and to the well-being of the community at large. 

Nomination forms are available here, and the deadline is October 25.