How to Maintain Control Over Difficult Regulatory Hearings
Perspectives for the Professions
April 2021 - 10 min read
Serving on a professional regulatory tribunal is one of the highest forms of service to your profession. It is also a big responsibility. As regulatory hearings become more complicated, tribunal members may find themselves involved in longer and more difficult hearings. This may cause some tribunal members' enthusiasm for these important roles to wane.
Whether a hearing is complicated by a self-represented individual raising every imaginable issue, or by a "scorched earth" defence involving parallel litigation, or the alleged misconduct being extremely serious (as in cases of sexual abuse), it is important to empower tribunal members to manage the hearing and maintain control.
The transition to virtual hearings hasn't helped. Individuals interacting through a computer screen may feel emboldened to push the boundaries of acceptable conduct; it can then be more difficult for the tribunal to control processes for questioning witnesses, raising objections and referring to evidence.
While regulatory tribunals generally have the power to control their processes and procedures, this can be hard in practice. Volunteer tribunal members may not fully appreciate the bounds of this power or how to interject in a difficult hearing to assert it. Tribunal members may also be hesitant to interject for fear of provoking an allegation of bias or unfairness. In fact, some tribunal members may think that to act fairly, they must be passive. With the proper management "tools", tribunals can conduct fair hearings confidently and eventually adjudicate the issues. After all, that is what they volunteered to do.
We address some of these "tools" below and provide tips on how tribunals can get the most value from independent legal counsel.
Tribunal members can assist the parties in understanding the hearing process and stay focused on relevant issues. Tribunal members can also interject to maintain control and to ensure the hearing remains fair to both parties.
Support can be found in the Canadian Judicial Council's 2006 Statement of Principles on Self-Represented Litigants and Accused Persons. The Statement describes how adjudicators may take "affirmative" steps to manage a hearing while being careful to explain that the purpose of that management is to minimize any perception of bias. Adjudicators may inquire whether the parties understand the process and procedure, explain the legal and evidentiary requirements, and ensure the parties understand the legal implications before making critical choices.
The case of Law Society of Upper Canada v Mary Martha Coady, 2008 ONLSHP 63 provides an example of active adjudication to maintain control. In this case, a Law Society discipline tribunal conducted a hearing, and the investigated member (Coady) represented herself.
Coady was cross-examining a witness and asking questions in pursuit of her conspiracy theory about the allegations against her. The discipline tribunal tried to assist by suggesting she refocus on relevant issues. The tribunal gave Coady "significant leeway", despite its concerns that her questions were irrelevant. Ultimately, the cross-examination became badgering, repetitive, and argumentative. The tribunal held that Coady was attacking the witness with personal insults and demeaning comments, harassing her, and abusing the process, in part to delay the matter.
The discipline tribunal took control and acknowledged Coady's right to cross-examine the witness, but the tribunal found that it had the power to impose reasonable limits on cross-examination. It gave Coady a fixed amount of time to conclude her cross-examination. The tribunal also required her to provide a list of the issues she intended to cover for the rest of the cross-examination and considered whether to allow cross-examination on each of them. The tribunal then held she had fully expended her right to cross-examine the witness, and the witness was excused.
Regulatory tribunals do not serve the whims of the parties. Tribunals must conduct fair hearings but the rights to call evidence, cross-examine witnesses, and make arguments are not unlimited. Tribunal members should focus on the issues before them and guard against attempts to improperly expand those issues, distract the tribunal or intentionally sidetrack and delay the proceedings. When necessary, tribunals can intervene and manage the hearing. This can range from providing information about the process to imposing reasonable limits to keep hearings on track.
Involve Independent Legal Counsel
Tribunals must ensure they follow the process found in their governing statute. They must also ensure that active adjudication does not cross over into advocacy for either party or otherwise render the proceedings unfair.
This can be a difficult line to walk, but independent legal counsel can assist. Even experienced regulatory tribunals may find that pausing to obtain advice from independent legal counsel will assist in maintaining control and ensuring the hearing remains fair.
In Ontario College of Teachers v. Bondar, 2002 ONOCT 3, the tribunal's independent legal counsel helped the tribunal maintain control over the hearing by preventing the self-represented teacher (Bodnar) from abusing the process and ensuring the hearing was fair to the parties and the witnesses. Bodnar repeatedly interrupted witnesses' testimony, became argumentative with the Chair, and had to be reminded of the process to follow. Bodnar also had to be reminded not to use her cross-examinations of witnesses to berate them or make arguments in her defence. After repeated warnings, the tribunal excused several witnesses from having to sit through further cross-examination by Bodnar. The tribunal explained that they obtained the advice of their independent legal counsel before doing so.
Takeaways for Regulators
Regulatory tribunals have a tough job. Hearings must be conducted in a fair, timely and efficient manner, often in the face of emotionally charged circumstances and challenging individuals. It can be tempting to listen passively to avoid allegations of bias or unfairness, but tribunals that are too passive can quickly lose control over a difficult hearing – more active adjudication may be necessary. Every case is unique, and tribunals should always consult experienced independent legal advice before acting. In most cases, tribunals have several options available to assist with the process.
- Set out the hearing process: Suggest that the hearing process be set out in a detailed guide provided to all parties in advance. Following the guide's process ensures all parties know what step they are on and what is coming next in the hearing process.
- Set expectations at each stage: Begin each stage of the hearing by telling the parties what you expect them to do. This re-orients the parties to the hearing process and reduces the risk of confusing the stages of the process.
- Address questions: If a party has questions about what is happening, or if they have confused multiple stages of the process, the tribunal can stop and explain the current stage and what they are expected to do to present their case.
- Deter speculation: A party who advances a theory or speculates instead of testifying as to what they did or what they observed should be reminded that they can explain later in the hearing what they think the evidence proves. The tribunal can also explain that it will base its decision on the evidence, not on theories or speculation.
- Dissuade repetitive questions: If a party is asking repetitive questions of a witness or repeating the same argument to the tribunal, they can be asked to move on. Judges encourage lawyers to do this by saying, "I've heard your point on that". Telling a party that you heard and understood them is often all that they need to move on and conclude their testimony or arguments.
- Ignore baseless threats: Parties who attempt to distract the tribunal by threatening legal action or to report the tribunal to other agencies can be reminded that the tribunal intends to carry out its mandate.
- Proceed even if someone walks out: Parties who threaten to walk out or not return to the hearing can be told that the hearing may continue, and the tribunal may make a decision without them. Once the hearing has begun there is usually no obligation to adjourn just because one party refuses to participate.
- Intervene if the situation gets aggressive: Hearings can be intense, but if a party or their lawyer is aggressive or abusive, the tribunal can caution them to remain calm and be respectful. If the behaviour continues, the tribunal can intervene to control the process and maintain hearing fairness. Tribunals should obtain independent legal advice before imposing any limits or restrictions.
The lawyers of Field Law's Professional Regulatory Group have experience as independent legal counsel for all types of professional regulatory tribunals. Our lawyers provide support to tribunals and committees both during and after a hearing, assisting them to identify all of the important issues, to properly deal with evidence, to make well-reasoned and defensible decisions and to provide detailed written reasons for the tribunal or committees’ decisions. Contact us to discuss how we might assist your organization’s regulatory tribunals or committees to carry out their mandates in the public interest.