Active adjudication is an approach to dispute resolution that puts more emphasis on the role of the adjudicator in focusing the issues in dispute and the process for resolving those issues. It stands in contrast to the classic adversarial model of dispute resolution that puts more emphasis on the parties shaping the matters in dispute and the evidence required to prove their case. Active adjudication has many advantages for access to justice. I have written about this before. Active adjudication can result in shorter processes as well as levelling the playing field, to some extent, for self-represented parties.
The courts have accepted the active adjudication model, for the most part. Courts have also accepted that adjudicators and judges need to provide more assistance to the self-represented who appear before them. A recent statement of principle from the Ontario Superior Court (Chanachowicz v Winona Wood Limited, 2016 ONSC 160) captures the common view on the role of a judge or adjudicator:
Depending on the circumstances, within the bounds of what is fair and reasonable, a trial judge may engage in firm, robust and continuous trial management to anticipate problems before they arise, to avoid undue delay and an unnecessarily protracted proceeding, to maintain order and momentum, to ensure that admissible evidence only is presented in a clear and organized manner focused on the real issues, and to have regard both to unnecessary expense not being incurred and to judicious use of limited resources.
But what are the limits of hearing management? I think adjudicators and courts are still feeling out the grey areas between assisting the process and stepping into the fray.
A few recent cases from Ontario address the actions of judges or adjudicators in managing the hearing process and, in all three cases, find a reasonable apprehension of bias. The well-known test for reasonable apprehension of bias is set out in Committee for Justice & Liberty v. Canada (National Energy Board),  1 S.C.R. 369, at p. 394:
…what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
In determining whether there is a reasonable apprehension of bias, the hearing record must be assessed in its totality, rather than assessing isolated occurrences. The threshold for a finding of bias is extremely high. It is also a highly fact-specific inquiry. However, we can extract some useful guidance from these recent cases.
1. Setting time limits for questioning and submissions
Time limits for various stages of the hearing process are tempting to use since, on the surface, they appear to be even-handed. However, recent cases have shown some of the risks of setting firm time limits.
In Chanachowicz, the court stated that effective cross-examination is recognized as the core of a fair trial and the right to cross-examine witnesses, while not absolute, “should be without significant and unwarranted restraint”.
The court seemed very reluctant to countenance any restriction on the length of time for examination of witnesses:
As to the imposition of time limits on the examination of witnesses, these authorities are instructive:
We do not consider that it is allowable, in advance, to place any restriction on the length of time to be consumed by cross-examination. The rulings of the trial Judge should be made when questions are put or about to be put and should be confined to the propriety of the question or questions in issue.
(R. v. Bradbury (1973), 14 C.C.C. (2d) 139 (Ont. C.A.), at p. 141)
While some jurisdictions have recently favoured time limits for the cross-examination of vulnerable witness (Begg v. Her Majesty’s Advocate,  HCJAC 69; R. v. Lubemba,  EWCA Crim 2064), capping the duration of examinations is inappropriate. A trial court may inquire into the anticipated length of an examination (R. v. A and Others,  EWCA Crim 2485, at para. 41) and even set “reasonable and flexible target[s]”: Report of the Review of Large and Complex Case Procedures (Nov. 2008), The Honourable Patrick LeSage and M. Code (as he then was), at pp. 73-74.
The court did note that “prolix, repetitive, confusing, abusive, irrelevant, unstructured and misleading” cross-examinations are subject to judicial control.
What we can extract from this is that it is appropriate for an adjudicator to limit an examination-in-chief or a cross-examination by controlling irrelevant, unstructured and rambling questioning, as long as time limits are not placed on the questioning.
For submissions, time limits (if reasonable) are not problematic. However, as noted in Chanachowicz, it is not appropriate to eliminate the right of a party to make submissions at all, even if it seems the most efficient way to proceed. The right to be heard includes the opportunity to make submissions.
Equal and reasonable time for submissions should be provided to the parties. It is appropriate for an adjudicator to set time parameters for submissions. It is also appropriate, in the right circumstances, for an adjudicator to clearly set out what should be covered in submissions (and, by extension, what need not be covered).
2. Taking over the questioning and cross-examination
Although it is commonly accepted that adjudicators are free to ask questions of witnesses at a hearing, there is still reluctance on the part of the courts to allow adjudicators to take on an inquisitorial role. A recent Ontario case involving a hearing before the Child and Family Services Review Board is illustrative. One of the parties to the dispute was self-represented. The Chair of the Board took on an active role in managing the questions. The court refers to questions that occupy 42 pages of the transcript. The court concluded that these questions were not by way of clarification or to expand on his evidence already given but were in the nature of cross-examination:
Rather, the Chair’s questions delved into new areas, including details of past issues with anxiety, whether he had ever sought counselling for anger management, whether he had a learning disability, whether he had disclosed his past drug use to his wife, whether their daughter planned on having children, and whether he had complained about a Society worker, Ms. B.
The Chair also insisted that the witness answer, “yes” or “no” to her questions. The court noted that the questions put to the witness were not simple questions but were compound (they included more than one question or a premise that underlay the actual question). The court stated that a witness should not be limited to answer this type of question by a yes, no, or I don’t know answer.
Faced with a self-represented party, how should an adjudicator ensure that relevant evidence gets before the tribunal? The court sets out a few options:
- At the end of the cross-examination by the self-represented party, the Board could have identified areas on which it lacked clarity and offered the party the opportunity to address those issues through further questioning.
- If, after additional questions by the party, the Board still required clarification on some issues, it should have confined itself to short, simple, open-ended questions.
Another recent case from BC (IProperty Inc. v. SR Websports Inc., 2015 BCSC 2407) found an apprehension of bias when a small claims court judge extensively cross-examined a witness.
3. Commenting on the parties and witnesses
In a recent Ontario Court of Appeal decision (Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60) the court reviewed the comments made by the judge on a series of motions. The court noted that it takes much more than impatience or even “unwarranted discourtesy” to rebut the strong presumption of impartiality of a judge or adjudicator. However, a concern arises when a judge is “consistently discourteous towards counsel for no apparent reasons”. In this case, over a series of motions, the judge repeatedly criticized appellants’ counsel on matters including their advocacy skills, knowledge of the law and the handling of the matter. The court relied on comments in the first two endorsements that the appellants’ cross-examinations were a “waste of time” and their argument was “frustrating” and “interminably, circling around and about, in and around.” The court also referred to the following comment from the judge in an amended endorsement:
… A lick of common sense should have made it clear that this motion, as framed, was doomed from the outset. So why bring it? If the honestly held belief was that this case ought to be pursued in California, all I can say to the defendants is “give your heads a shake”.
In this case, not surprisingly, a reasonable apprehension of bias was found. Hearings can be frustrating experiences for adjudicators but it cannot be emphasized enough how important it is for that frustration to stay well-hidden.
4. Guidance from the courts on active adjudication
The appropriate tools for managing a hearing process will largely depend on the circumstances of the case. As the court in Chanachowicz noted, possible approaches can include:
(1) at the outset, secure clear statements from the parties as to what aspects of the pleadings are live issues for trial and the means by which burdens of proof will be discharged
(2) seek presentation of a witness and exhibit list and the relevance of same to issues in the case
(3) obtain estimates from the parties respecting the time for witness examinations and oral arguments
(4) identify admissibility of evidence issues and determine whether an offer of proof or voir dire is required or whether the issue is really a matter of weight
(5) set time limits for oral argument
(6) maintain control of questioning, and in particular cross-examination, to limit the evidence to what is admissible and relevant to real issues in the proceeding, while avoiding repetitive or cumulative evidence
(7) exercise judicial intervention … to clarify evidence and relevance, and to avoid confusion or mistreatment of witnesses.
A plan laid out in advance is always a good approach for a hearing that you anticipate will be a lengthy one. If you set out the road map clearly with the parties (always ensuring that they have an opportunity to make submissions on that road map) there is more likelihood that the hearing journey will unfold as it should.
Active adjudication is not easy and is fraught with pitfalls. As an adjudicator, it is always easier to sit back and let the hearing unfold without significant interventions. However, the risks of active adjudication are worth it if a hearing is more efficient and fair as a result.