The recent decision of the Supreme Court on summary hearings in the courts has sparked discussion within civil litigation circles, including on slaw.ca. But what, if anything, does the decision tell us about the court’s possible approach to summary processes in the administrative justice system?
The court appears to be open to new models of adjudication:
[t]he balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
The court also noted the importance of public adjudication of disputes for the development of common law. A similar observation applies in the administrative justice system. The court recognized the reality of mediation and settlements, but recognized that such resolutions should happen in the shadow of the law: “mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative”.
Some of the statements of the court about the appropriate circumstances for summary proceedings are commonplace in the tribunal world. For example, the courts have routinely held that tribunals do not need to conduct oral hearings. I have written elsewhere about summary hearings and procedural fairness in the tribunal context.
In determining the appropriateness of a summary proceeding, the emphasis of the court is on whether it gives the judge “confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”. This is a threshold issue in any determination on appropriate procedures: does the process allow the adjudicator to do his or her job?
The Court of Appeal noted the benefits of a trial that contribute to the appreciation of the evidence: “the narrative that counsel can build through trial, the ability of witnesses to speak in their own words, and the assistance of counsel in sifting through the evidence”. The Supreme Court held that this approach would likely lead to the bar being set too high:
The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.
What is missing from the court’s analysis is the perspective of the participants in the procedure. It is not, and should not, be all about the adjudicator. A balance needs to be maintained between proportionality and the perceptions of fairness of all participants in the process. Truth-seeking is an important part of an adversarial process. However, procedural fairness goes beyond just ensuring that the truth is discovered.
In Baker, the Supreme Court noted that the purpose of the participatory rights contained within the duty of procedural fairness is, among other things, to provide an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. This does not mean that a hearing is controlled by the parties, but it does mean that the parties should feel that they have had an opportunity to make their case and also feel that they have been heard by the decision maker.
The relevance of the court’s decision to administrative tribunals may rest with its suggested procedures for managing summary proceedings. Proportionate justice is a culture shift for the justice system and requires adjudicators to “actively manage” the legal process. The court notes that summary processes can save time and resources, but they can also slow down the process if used inappropriately.
The court made some interesting observations on the use of oral evidence in summary proceedings. Many tribunal summary proceedings do not include oral evidence, and the court seems to be opening the door to the selective use of oral testimony in summary proceedings.
The Court of Appeal set out some guidelines for ensuring that oral evidence in a summary proceeding did not become unmanageable:
(1) Oral evidence can be obtained from a small number of witnesses and gathered in a manageable period of time;
(2) Any issue to be dealt with by presenting oral evidence is likely to have a significant impact on whether the summary judgment motion is granted; and
(3) Any such issue is narrow and discrete — i.e., the issue can be separately decided and is not enmeshed with other issues on the motion.
The Supreme Court agreed with the Court of Appeal that these were not absolute rules. The Supreme Court noted that, although perhaps the exception, there will be cases where extensive oral evidence can be heard in a summary proceeding, “avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure.” In every case, though, a party seeking to present oral evidence in a summary proceeding must be prepared to show why the evidence would be of assistance to the decision-maker in: a) weighing the evidence; b) assessing credibility; or c) drawing inferences. Of critical importance as well is that the party provides a description of the proposed evidence (a “will say”) in order for the adjudicator to have some basis for setting the scope of the oral evidence.
The court made a few suggestions on managing a failed summary process. The most significant one in terms of adjudication resources is the idea of an adjudicator remaining seized of a proceeding. Different tribunals handle the issue of being seized differently. I have no data on the extent to which adjudicators remain seized of a file, but I do know that the practice varies across different tribunals. There are challenges in having one adjudicator remaining seized: firstly, there are issues of scheduling and balancing workloads, and secondly, there are issues around the expiry of appointments.
The court also makes an important point about the role of advocates in facilitating access to justice:
…counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.
This important principle is equally applicable to the administrative justice system (and also applicable to licensed paralegals). I assume that the court meant that all clients have limited means because, of course, the quality of justice should not depend on the means of the parties. And, even if a client is not of limited means, there is a professional obligation to ensure that the (limited) public resources of our justice system (courts and tribunals) are used appropriately.
It is too soon to tell if the “culture shift” being promoted by the Supreme Court will have an impact on administrative tribunals. However, the words of support for creativity in achieving meaningful access to justice should provide some comfort for tribunals and adjudicators looking to design more efficient processes that respect procedural fairness principles.