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Tribunal Rules in Plain Language…Why Bother?

A user-centred tribunal process is a necessary condition of improved access to justice. But it is not a sufficient one. You also need the process codified in rules that ordinary people can understand.

Tribunal rules of procedure are meant to guide users through the process the tribunal has designed to resolve the disputes before it. If the tribunal has an adjudicative mandate, then the dispute often involves two parties, and the process is usually adversarial.

The conventional approach does not work for users

Although they are intended to guide users, the rules are not typically written for the parties involved in the dispute. Rather, they are more often aimed at professional representatives and the people who work in tribunals.

For example, the default process for handling a request on an interlocutory matter (wait, did I just use that term??) is a request, followed by a response, followed by a reply. How familiar is that basic sequence to anyone not schooled in the law?

And what about the words used? Here is an example of some fairly standard language taken at random from the rules of a federal tribunal:

“A panel may, on the motion of a party or its own initiative, make any order that it considers necessary against vexatious conduct or abuse of process.”

If you have been to law school, a sentence like that does not merit a second glance. But if you haven’t, then what do you make of the 5 terms of art used in a sentence of 27 words?

These are a couple of examples to illustrate that tribunal rules are typically designed around the needs of “insider” users – lawyers, paralegals and the people who work in the tribunal itself. The people who actually own the disputes, the ones affected by the tribunal’s decisions, are the “outsiders”, left trying to peer in through the opaque glass.

At the Social Security Tribunal of Canada (SST), we introduced new rules of procedure in December 2022, in an attempt to break the conventional mould.

The large majority of SST appellants (more than 70%) don’t have a professional representative who can explain the tribunal’s rules to them. If the rules are unintelligible to the people who own the dispute, then the tribunal has itself thrown up a barrier to access to justice.

Our approach to rewriting the rules had two objectives:

  • to make the process less formal and adversarial, and
  • to incorporate plain language principles in the legislative drafting process.

How to make tribunal justice look less like judicial justice

Tribunals are supposed to offer a simpler, quicker form of justice than the courts. Yet the forces of tradition, precedent and the place of tribunals in the hierarchy of our legal system create a powerful pull that leads tribunals to imitate courts. One way to resist the pull is to codify the commitment to a simpler legal process in a tribunal’s rules.

I highlight below some of the changes we have incorporated in the SST Rules in order to make it easier for unrepresented and underrepresented parties to participate meaningfully in their own appeals.

The most significant is a commitment to active adjudication. We were inspired by the adjudicative model that the Human Rights Tribunal of Ontario adopted when it started. The adversarial process is modified by grafting elements of an inquisitorial process onto the way hearings are conducted.

The SST Rules explain that, in using active adjudication, decision-makers may:

  • decide what issues need to be addressed
  • decide what procedures are appropriate in the circumstances
  • help parties, representatives and witnesses understand the appeal process and the Rules
  • provide information about the laws that apply to the appeal
  • provide information about the evidence
  • decide the order for parties to present evidence or arguments at an oral hearing
  • ask parties, representatives and witnesses questions.

Another important change is to give SST adjudicators the power to decide certain interlocutory requests without hearing arguments from both parties.

In every appeal, one of the parties is an institutional litigant. That party is either the Minister of Employment and Social Development Canada (Minister) or the Canada Employment Insurance Commission (Commission). The Minister and the Commission are very familiar with the appeal process and have the capacity to respond flexibly in each case.

Accumulated experience showed that little to no value was added by inviting the Minister or the Commission to respond to certain types of requests.

For this reason, SST members are now given the power to decide on the following requests without asking for a responding argument:

  • whether to give more time to appeal
  • whether to add a person as a party
  • whether to grant permission to appeal a General Division decision

The ping-pong that comes with the conventional sequence of request, response and reply adds about three weeks of processing time for each request.

In a high volume tribunal, this creates a huge cumulative drag on the capacity to deliver speedy justice. So cutting down on dead time, where the appeal is stalled waiting for a response, makes a big difference, both in the individual case and on a systemic level.

The new rules also dispense with the need to qualify certain witnesses as expert. Like most tribunals, the SST has rarely, if ever, ruled opinion evidence to be inadmissible. Instead, it simply assigns weight to the evidence depending upon how persuasive the content of the evidence is. Why then bother to qualify witnesses as expert?

The process of qualifying an expert is alien to most people with no legal background, so we decided to drop this step in the new Rules.

The new Rules add a number of other changes that simplify the appeal process and dilute its adversarial character. These include:

  • Using an ‘interests of justice’ test for late appeals, rather than asking parties to address multiple factors in their requests;
  • A ‘no questions asked’ approach to rescheduling hearings on the first request by a party, if the request is made at least 5 days before the proceeding;
  • A clearer process for selecting the official language of a proceeding;
  • A clearer process for parties to request an accommodation in a proceeding.

How to reconcile drafting conventions with plain language principles

While a simpler process may enable ordinary people to access justice, they need to be able to understand how that simpler process actually works. This is why we focused our efforts on drafting the Rules in accordance with plain language principles.

Rules for federal tribunals are a form of delegated legislation. So the same drafting techniques that apply to a statute are employed in drafting rules. But legislative texts often use complex word order, lengthy sentences, embedded clauses and opaque marginal notes. All of this can hinder comprehension.

The SST’s legal counsel and our plain language specialists collaborated on drafting instructions which we submitted to Justice Canada’s legislative drafters. Our drafting instructions were essentially a first cut of the Rules.

The Justice Canada drafters assigned to our Rules project embraced the challenge of reconciling established drafting conventions with the principles of plain language. They were equally committed to improving access to justice at the SST, and excited by the professional challenge that a novel approach posed. Working side by side with the legislative drafters, we produced a final version which was faithful to our original instructions.

These are the plain language principles we used to draft the Rules:

  • Iconicity
  • Simple syntax
  • Limited vocabulary
  • Accessible design

Iconicity is about how linguistic form mirrors the real world. We wanted the form of our message to reflect our users’ real-world experience and expectations as much as possible. So, the events the Rules describe appear in the order people would likely experience them in their appeal.

And we grouped related content by theme to keep semantically dependent elements close together. We did that so people can easily find related and relevant information when they’re looking something up in the Rules.

By simple syntax, we mean:

  • short sentences
  • one idea per sentence
  • subject-verb-object word order
  • verb-only constructions (instead of generic verb + noun constructions)

Sentences in legislative texts are often full of embedded clauses. We avoided embedded clauses by:

  • Keeping dependent clauses at the beginning or end of sentences so they do not break up the core elements of the main clause and its message; and
  • Expressing dependent concepts in separate sentences and linking them with transitional markers.

We aimed to use accurate, common and consistent vocabulary.

Finally, we relied on the following accessible design features to improve readability:

  • descriptive headings and plain language marginal notes to guide readers
  • an “Overview of these Rules” section in the introduction, explaining how the Rules are divided into various parts
  • a summary at the beginning of each part to show readers where we’re taking them (otherwise known as a “point-first” approach)
  • lists or separate rules to avoid expressing complex rules in large paragraphs.

Even with these changes to the conventional approach to legislative drafting, the SST Rules are still a challenging read. We know that not all appellants will consult them.

But we also know that plain language works to improve access to justice. The SST has evaluated the results of writing reasons for decision, and forms and letters in plain language.

The data shows that plain language is a bridge to understanding your rights. You should not have to go to law school to find out how the law works.

Paul Aterman

Chairperson / Président
Social Security Tribunal of Canada / Tribunal de la sécurité sociale du Canada

Comments

  1. I am encouraged to hear that a tribunal has taken this attitude. I hope that in due course you’ll be able to say that it has had positive results.

    I’ve personally dealt with only two tribunals as a complainant: in B.C. the Labour Relations Board, and federally the Canadian Judicial Council. The Senate’s LCJC committee right now is hearing from witnesses regarding Bill C-9, An Act to amend the Judges Act. The bill is online. Maybe you could take a look.

    I hope though that you will make a point of taking a look at the language of the BC Labour Relations Code. The version as originally enacted is here – https://www.bclaws.gov.bc.ca/civix/document/id/94consol18/94consol18/92082 . A full statute revision process was completed in the spring of 1997, resulting in the designation “RSBC 1996. That version of the LRC (with further amendments) is found here – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96244_01 . This tribunal was set up to hear from unions and employers, but Canada’s labour boards also hear from individuals as a result of what is called the “duty of fair representation”. Section 12 is the standard language for the DFR. In 1992 section 13 was a new innovation. Have a look at it in the two versions of the Code. What was changed was the removal of the two instances of “prima facie case”, replacing them with two different phrases in what you might say is plain English. But is it? More importantly, is the whole section written in plain English?

    That it is not is attested to in many places, but most significantly in something written by the Chair in 2003 and then published as a decision on a particular case, though in fact it decided nothing at all about that case. This “Judd” “decision” of 115 paragraphs is found here – https://lrb.bc.ca/media/12156/download?inline . One hundred and fifteen paragraphs to explain what one section – section 13 – actually means. Have a really close look at paragraph 99. What the legislature debated on November 26, 1992 (the debate is accessible online in the Hansard records) relied expressly on “prima facie case”. But that record shows that our legislators – many of them newly elected in 1991 – had no idea what the term is supposed to mean. In fact its meaning remains up for debate – see the text, The Law of Evidence in Canada, first edition published in 1992. That was the reason the two instances of “prima facie case” were removed. Was that removal, using a statute revision exercise (which created virtually no publicly accessible record) legal? I’m suggesting that it wasn’t. The reality at the BCLRB is that the DFR complaint process is a black hole from the outset. On CanLII one can search – as I regularly do – on the string “James W.D.” – https://www.canlii.org/en/bc/#search/jId=bc,unspecified&sort=decisionDateDesc&text=%22James%20W.D.%22&origJId=bc . The Vice Chairs, clearly as a matter of policy, are citing the “Judd” “decision”. I’ve noticed that in a few decisions recently they’ve even expressly used the term “prima facie case”, suggesting that they are unaware that there is an issue with it.

  2. @Paul Aterman, I really enjoyed reading your blog. It is absolutely necessary that we approach access to justice through a “user-focused approach” when drafting regulations, laws and processes, particularly for a Tribunal or any other administrative or judicial process that deals directly with a large majority of unreps. The plain language rules you outlined can be applied to all different types of legal writing and this is a great example of legal design in action. Thanks for your post.

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