Obligations to new counsel and expert reports
Two recent cases plus links on the crisis at HRTO, Immigration backlogs, and social media guidelines for UK judges and tribunal members
A shorter newsletter this week, as I had four hours of on-air radio programming this week. I’m also working on a show for next week on the 50th anniversary of Oscar Peterson’s aborted tour of Russia. Next week I’m off to Calgary to participate in a mock mediation and arbitration for a Queen’s Industrial Relations Centre workshop.
Cases of note
No obligation of Immigration Appeal Division (IAD) to advise new counsel of status
In Hundal v. Canada (Citizenship and Immigration), 2024 FC 1802, the applicant alleged that he was denied procedural fairness because there was a duty of fairness on the IAD to proactively advise his new counsel of previous deadlines and previous correspondence in the appeal. The court held:
[6] The content of the duty of fairness in administrative proceedings is determined by examining the factors described by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. Applying those factors to the IAD’s decision to abandon the Applicant’s appeal, I find that the participatory rights owed to the Applicant were satisfied by the IAD’s communication to the Applicant using the means identified by the Applicant, and by the transmission of the appeal record to his new counsel, which it started to do on October 20, 2023.
[7] It was the responsibility of newly retained counsel to discover the stage of the appeal as well as upcoming deadlines from the Applicant, previous counsel, or by proactively contacting the IAD for this information.
[8] While I have sympathy for the Applicant’s health issues and limited language and technological skills, he hired counsel for the purpose of assisting him in pursuing his appeal and it was the responsibility of his counsel to apprise himself fully of the circumstances of the appeal.
Report of expert who did not show at hearing should not have been admitted
In Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198, a judicial review of a License Appeal Tribunal (LAT) decision, the applicant alleged that admitting the report of the respondent’s expert who had not testified was procedurally unfair. The applicant’s expert testified at the hearing and was subject to cross-examination. The respondent’s expert was served with a summons but refused to attend the hearing. He also failed to file an acknowledgment of expert’s duty form, which is required by rule 10.2(b) of the LAT rules. The applicant made a motion to exclude the report, but the LAT adjudicator denied the motion.
In the hearing decision, the adjudicator relied on the respondent’s expert report and did not consider what weight to be given to that evidence in light of the expert’s failure to appear or provide the required form. In the reconsideration decision, the LAT expressed no concern about how the adjudicator dealt with report.
The court relied on the decision in Shahin v. Intact Insurance Company, 2024 ONSC 2059, where the respondent’s expert had not attended for cross-examination. In that case, the court found that while there was other substantial evidence to support its conclusions, the expert’s evidence “infected the Tribunal’s conclusions on the central issues governing its decision” (para. 18). That court also held that once the LAT knew that the expert would not attend cross-examination, his report should have been struck from the record (para. 120).
The court also noted that the adjudicator promised to take steps to “mitigate the unfairness” of admitting the report but did not do so. The adjudicator also relied on the report in the reasons. The court stated that, as in Shahin, the report “infected” the LAT adjudicator’s reasoning and conclusions. The court concluded that once the LAT adjudicator knew that the expert would not appear at the hearing to be cross-examined, it should have refused to admit his report.
Links of interest
The Human Rights Tribunal of Ontario: Access to Justice Denied
The legislation has not been amended. But today, the accessibility promised by those reforms appears to be largely undermined by the HRTO itself. After the imposition of onerous new filing requirements, thousands of applicants have abandoned their applications or had their applications dismissed without a hearing. The ramped-up number of HRTO-initiated dismissals has led to a clear inference that the HRTO is putting more effort into auditing its backlog looking for weakly-drafted applications, vulnerable to dismissal, than in moving cases appropriately forward to a merits hearing. The enormous increase in dismissals without a hearing since the HRTO was moved into Tribunals Ontario, and the deep drop in the number of substantive merit decisions seem to corroborate these conclusions.
There is something deeply wrong at a human rights tribunal when its backlog has increased twofold over time, despite a significant drop in incoming cases; when 93% of final decisions are no-hearing dismissals, mostly of aging cases in a multiyear backlog; when the great majority of those dismissals are because the applicant has given up after long periods of HRTO inactivity on their file; and when only 2.7% of all final decisions are substantive decisions after full consideration of the evidence of the parties.
Tribunal Watch Ontario asks: When will the Ontario government take effective steps to address the access to justice crisis at the Human Rights Tribunal?
Federal Court Pilot Project to clear Immigration backlog
The goal is to reduce the time it takes for students to apply for leave and judicial review of their permits. Typically, a JR takes 14 to 18 months. The hope is the pilot can cut this down to five months. Applicants will be able to apply for leave and judicial review at the same through a short form. Judges will then decide on both based on the written submissions, which removes the time and cost of a hearing.
Law professor gives Lexis+ AI a failing grade
Given its current limitations, I cannot recommend Lexis+ AI to my law students, and I would not use it for my own legal research at this time. Like all AI tools, they adapt and change. I will continue monitoring this one to assess improvements, as its emphasis on verifiable authority and confidentiality remains a key strength. I strongly recommend delaying its release to law students until significant improvements are made. Better to get it right.
With generative AI becoming more prevalent in legal practice, it is crucial that lawyers, judges, law professors, and students understand both its potential and limitations. Even the tools I have found to be highly reliable always require verification, judgment and human oversight. Since AI applications evolve rapidly, it's important to evaluate their performance regularly.
U.K. guidance on social media for judges and tribunal members
New guidance addressed to judges at all levels in England and Wales tells them not to express views on social media about government policy and decisions, the legal system, political issues or controversial social issues. They are also told not to comment on ongoing court cases.
…
A part-time tribunal judge told me:
The fact the social media guidance on its face applies in the same way to fee-paid, part-time judges as it does to salaried judges ignores the fact that part-time judges typically lead professional lives and that legislation allows them (unlike salaried judges) to be politically active.
The ban on “commenting on ongoing cases” pays no attention to the fact that it is now normal for legal practitioners to blog and post about current legal developments (and that they perform a valuable public service in doing so).
And the ban on “expressing views on government policy or decisions, the legal system, political issues, or controversial social issues” in effect stops part-time judges from taking up a political role that involves social media activity — in practice, these days, pretty much any political role.
If the guidance did mean to stop part-timers from doing those things, then it is a significant change in conditions of service and one that may mean that some part-time judges are unable to continue serving.
What can retired judges do? A U.K. perspective
The former master of the rolls thought it acceptable for retired judges to give media interviews and discuss their past judgments, but only if they did so in a restrained and responsible way. What former judges say – and do – really matters.