Active Adjudication and Impartiality

Access to justice should not stop at the hearing room door. Much of the current discussion of access to justice has focused on getting people into the justice system, with little discussion of how to make justice accessible once they get there. In a justice system that increasingly has self-represented parties as well as unequal representation, fairness and efficiency require that adjudicators take a more hands-on role in the hearing process. This hands-on approach has been termed “active adjudication” by commentators and adjudicators.

There are a great variety of adjudicative tribunals in Canada, all with different rules and approaches to adjudication. However, most of them have shared a bias toward adversarial processes. An adversarial process in one in which the parties bear most of the responsibility for putting their cases before the adjudicator. As recently noted by Professor Michelle Flaherty of the University of Ottawa, underpinning our adversarial system is an assumption that “parties understand the complex and nuanced rules governing the presentation of their case.” When that is not the case, hearings

cease to be a dialogue between informed and experienced participants within a framework designed to test evidence and facilitate truth seeking. They can become instead a frustrating exercise in imposing legal norms on parties who do not or cannot grasp their significance, and who sometimes view the legal issues through a fundamentally different paradigm.

Although the image of a passive adjudicator has never been completely accurate in the administrative justice context, there has historically been a reluctance of adjudicators to take an active role in shaping the dispute and the process. For a number of reasons, a passive approach is no longer tenable. Some of those reasons are:

• A decrease in represented parties/an increase in self-represented parties;
• An overall increase in the amount of litigation in some areas;
• Increasing pressure on tribunals to “do more with less” as a result of fiscal pressures;
• A recognition of the importance of “proportionality” in dispute resolution; and
• Increasing backlogs in disputes, leading to delays in the administration of justice.

The reality of the administrative justice system is that there are fewer expert advocates on both sides of a dispute. There are two options to address the issue of untrained advocates (self-represented or not):

• Bend the person to the process; or
• Bend the process to the person.

Of course, these options are not mutually exclusive.

Tribunals can, and usually do, provide tools for participants to better understand the process and the expectations of the tribunal. This education role takes the form of guides, policies, FAQs, and sometimes even videos. I have already written here about the importance of literacy audits in the adjudication setting.

Active adjudication is the act of bending the process to fit the person or persons before the adjudicator, while respecting the impartiality of the adjudicator. Professor Robert Thomas, commenting on the United Kingdom experience, has captured well the nature of the transition to active adjudication:

…tribunals have developed a more inquisitorial approach, but they have not totally rejected the adversarial approach; rather, they have applied an inquisitorial gloss to a basically adversarial process. This suggests that the adversarial–inquisitorial dichotomy is no longer an insightful way to understand the role of tribunals. The practice of tribunals will often seem inadequate in some way because it can rarely be described as fully adversarial or inquisitorial. Instead, a new model – active, investigative, or intrusive adjudication – is required, one which recognises the need for tribunals to adopt varying degrees of intervention and activism depending upon a wide variety of different factors which will fluctuate from one case to the next.

Dean Lorne Sossin has recently commented on the necessity of active adjudication to level the playing field:

The link between Active Adjudication and access to justice is clear. If tribunal members are more active to ensure a fair process, the inequalities in representation, and more broadly in power and resources between parties, may be mitigated and access enhanced.

Adjudicators, like judges, have always been responsible for managing the hearing process. This has included focusing the parties on the relevant issues in the dispute, stopping abusive behaviours, and generally ensuring the orderly administration of justice. Traditionally, there was a reluctance of judges to provide much more than procedural guidance to the parties. This reluctance has been captured by an admonition credited to Lord Denning about the importance of a judge not conducting the examination of witnesses because “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict …” (Lord Denning was quoting Lord Greene MR, in Yuill v Yuill [1945] P 15, 20.)

In Jones v National Coal Board [1957] 2 QB 55 (well summarized in Hadi v A-Z Law Solicitors [2012] EWCA Civ 1431), Lord Denning set out the limitations on a judge’s role:

• To only ask questions of witnesses when it is necessary “to clear up any point that has been overlooked or left obscure”;
• To see that the advocates “behave themselves seemly and keep to the rules laid down by law”;
• To exclude irrelevancies and discourage repetition;
• To make sure “by wise intervention” that he/she follows the points that the advocates are making and can assess their worth; and
• “At the end to make up his mind where the truth lies”.

In Lord Denning’s view, going beyond this limited role is to “drop the mantle of a judge” and “assume the robe of an advocate”.

The Canadian Judicial Council (CJC) recognized that business as usual in the courtroom was not wise when faced with self-represented litigants, and issued guidelines in 2006. The guidelines noted that an engaged hearing management style may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of each case, the judge may:

(a) explain the process;

(b) inquire whether both parties understand the process and the procedure;

(c) make referrals to agencies able to assist the litigant in the preparation of the case;

(d) provide information about the law and evidentiary requirements;

(e) modify the traditional order of taking evidence; and

(f) question witnesses.

The CJC states that these steps are consistent with requirements of judicial neutrality and impartiality and a careful explanation of the purpose of such steps will minimize any risk of a perception of biased behaviour. It also notes that treating all persons alike does not necessarily result in equal justice. Professor Flaherty has built on this proposition, to suggest that “substantive impartiality” should apply in assessing the role of adjudicators in assisting self-represented parties.

One of the fears of a more active adjudication style is the blurring of the line between the role of a neutral and that of an advocate. Becoming an advocate can result in an appearance of bias. The test used by the courts in assessing whether there is a reasonable apprehension of bias on the part of the adjudicator has come from the dissent in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95:

[W]hat 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 Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, the Ontario Court of Appeal had some guidance for trial court judges about their interventions during the trial. The Court emphasized that determining whether a judge had stepped over the line was a fact-specific inquiry that must be assessed in the context of the particular trial. The trial record must be assessed in its totality and interventions that are the subject of complaint must not be evaluated as isolated occurrences. The Court set out the following reasons for judicial intervention at trial:

…the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

The underlying assumption of the Court was that parties would be represented by counsel, however: “for the most part, trial judges can manage the trial process by asking questions of counsel, making comments or giving directions about the course of the trial. Trial judges should be careful about trying to control a trial by examining witnesses.” The Court stated that when judges do take an active role in questioning witnesses, they must use care and not create the impression that they have adopted a position on the facts, issues or credibility. The Court then set out some specific guidance on asking questions to avoid perceptions of bias:

• leave questioning to a point during the evidence where counsel has completed a particular area or to the end of the witness’s evidence (this avoids interferance with the organization and flow of the evidence); and
• questioning should be done in a “judicious manner”, avoiding expressions of annoyance, impatience and sarcasm.

Tribunals have a great deal more flexibility than the courts in managing hearing processes. For example, rules of evidence are relaxed in administrative tribunal proceedings. In addition, some adjudicators have the statutory authority to play a more active role in the hearing process. A recent example is the Ontario Human Rights Code, which allows the tribunal to establish rules of procedure that are “alternatives to traditional adjudicative or adversarial procedures” (section 43). This includes the authority of an adjudicator to:

• define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues;
• determine the order in which the issues and evidence in a proceeding will be presented;
• conduct examinations in chief or cross-examinations of a witness; and
• prescribe the stages of its processes at which preliminary, procedural or interlocutory matters will be determined.

The adjudicator will usually ask for submissions from the parties and obtain their consent to non-traditional adjudicative methods (for example, the adjudicator conducting the examination or cross-examination of witnesses). But, the Tribunal has determined that it has the power to adopt such practices even when opposed by one or both parties: Clennon v Toronto East General Hospital, 2009 HRTO 1242.

Even in the absence of such express statutory provisions, adjudicators do have the ability to conduct hearings that ensure equal access to justice. Active adjudication remains a largely uncharted territory, however, and adjudicators need to tread carefully. As noted by Professor Flaherty, there are few written decisions summarizing active adjudication steps, since adjudicators deal with most of the process in oral decisions. In addition, there is very little guidance from the courts, as few cases go to judicial review.

Professor Flaherty, in her paper, usefully outlines some of the relevant decisions on the scope of the duty of an adjudicator to assist a self-represented litigant. She concludes that the courts have generally held that adjudicators are required to assist the self-represented with procedural matters but there is no positive obligation to assist self-represented parties with substantive legal matters.

The debate about access to justice is ongoing and may never come to a satisfactory resolution. In the meantime, adjudicators will be left to try to smooth out the rough edges of an adversarial model of dispute resolution by incorporating elements (or a “gloss”) of an inquisitorial model.