Canada: The Top 10 "Tips And Traps" For Tribunal Member Conduct

Last Updated: November 24 2014
Article by James T. Casey QC

I was once asked if I would consider making a presentation to a conference on appropriate (and inappropriate) conduct by Hearing Tribunal members. I readily agreed to consider the request indicating that our Professional Regulatory Group provides one-day training workshops on how to run professional discipline hearings. I was then told that the conference didn't have a day for the presentation but instead had only one hour available for the presentation. I was challenged to distill the most important advice into a one hour presentation. I knew I wouldn't have time to address the complex legal issues that often arise in hearings but could provide some pragmatic advice that would be useful for both new and experienced Tribunal members. Hence, I created The Top 10 "Tips and Traps" for Tribunal Member Conduct. While some of the tips may seem like common sense, on many occasions problems arise due to the failure by both new and experienced Hearing Tribunal members to follow the "tips" and thus fall into the corresponding "trap." Many of these"traps" routinely result in successful Court challenges to Hearing Tribunal decisions. Distilled from my experience as either prosecuting counsel or independent counsel to tribunals and as a trainer of tribunals, here are my "top 10" tips to help you avoid the traps.

1. Hearing Procedures

Trap: Unless you are a very experienced Chair, you may forget the appropriate steps that must be taken in a hearing leading to confusion and procedural unfairness. An unfair or irregular process typically leads to appeals or applications for judicial review.

Tips: Use a script and procedure guide for every hearing. A step by step guide helps keep the hearing on track. Consider sharing the guide with the investigated member and defence counsel. Using a standard guide helps build confidence in the Hearing Tribunal process and can also assist in raising the confidence of defence counsel in the fairness of the process. A hearing procedure guide is also very useful for helping guide unrepresented investigated members through the process.

2. Hearing Tribunal Member Attentiveness

Trap: Let's face it. Discipline hearings contain both periods of high drama and excitement and periods of tedium. Sometimes the attention of Hearing Tribunal members may begin to wane. The eyes of an individual Hearing Tribunal member may begin to droop followed by the periodic nodding of the head. Sound unlikely? On the contrary there certainly have been Court challenges to tribunal decisions on the basis that one of the members appeared to be sleeping for part of the hearing! Such conduct undermines confidence in the proceedings and is an embarrassment to the College and the individual.

Tips: Put yourself in the shoes of the investigated member. What conclusions will they draw from your appearance? Do you appear bored, disinterested, or drowsy? Or do you appear interested and alert understanding the importance and seriousness of the proceeding? Pay attention. If you feel yourself getting drowsy, ask the Chair for an adjournment and get a coffee or go for a walk.

3. Keeping Track of the Evidence

Trap: Some Hearing Tribunal members listen to the witnesses without making any notes. The trap is that our memories are short. Sometimes discipline hearings can span many days and if there are adjournments in the middle of a hearing, there is often a delay of months before the hearing resumes due to scheduling challenges. A Hearing Tribunal member who does not have a good recollection of the evidence will not be able to make a satisfactory contribution during caucus meetings. Plus Hearing Tribunal members who do not make any notes on the important evidence may become overwhelmed with the amount of evidence from witnesses and documents as the Hearing Tribunal attempts to sort out what is important from what is not.

Tips: Even if a Court reporter is present, do take notes of the important parts of the evidence. You are not attempting to create a verbatim record but in your notes you should highlight the evidence from witnesses and the documents you consider important. Many experienced adjudicators use a "split page" technique drawing a line down the middle of their page. On the left they summarize the important evidence as witnesses testify and, if they want to later ask a question of clarification, they make a note on the right side of the page across from the entry. When the testimony of the witness is completed the Tribunal member can quickly check the questions he or she wanted to ask and determine if the question had been answered later in the testimony. Using a "split page" technique for your notes will assist in asking relevant and important questions. Having the important parts of each witness' testimony highlighted in your notes will also assist in having a robust and thoughtful caucus session at the end of the hearing. The Chair can ask each Hearing Tribunal member what evidence they thought to be important for each witness and the Hearing Tribunal member will have this information available at their finger-tips.

4. Questions by Hearing Tribunal Members

Trap: Discipline decisions are routinely overturned by the Courts on the basis that questions by the Hearing Tribunal Members were inappropriate. The questions might be too aggressive, might suggest that the Hearing Tribunal member's mind was made up or the question might not be focused on the allegations. Sometimes Hearing Tribunal members ask so many questions it is as if they were prosecuting the case.

Tips: Many inexperienced Hearing Tribunal Members feel intimidated about asking questions. They are afraid that they may make a mistake and ask an inappropriate question. If a Tribunal member is uncertain whether a question is appropriate, they should slip a note to the Chair asking for a brief caucus meeting to discuss the proposed question. Some Tribunals decide to follow a procedure where they caucus and discuss all possible questions among themselves before asking the questions. If you follow the 5 key rules with respect to questions by hearing tribunal members, you will avoid most problems:

1)      Keep your questions focused on the allegations. A discipline hearing is not an excuse for a broad-ranging review of a professional's practice. Relevance is determined by the scope of the allegations.

2)      Stay neutral. Tribunal members must be careful with the phrasing of their questions. You can and should ask tough questions if they are necessary but keep the questions neutral in tone seeking clarification. Do not engage in cross-examination style questions. Do not ask questions in way that might suggest that your mind is made up.

3)      Do not take over running the case. Do not "descend into the arena" as a combatant.

4)      In general, wait until the examination, cross-examination, and re-examination are complete before asking questions since many of the questions you wanted to ask will have been asked by legal counsel by the end of the process. Experienced adjudicators may choose not to follow this suggestion but it is a good practice for adjudicators with less experience.

5)      Provide legal counsel the opportunity to ask questions arising from Tribunal member questions.

5. Meeting Spaces for Participants

Trap: Discipline hearings may take place in the relatively informal spaces of College boardrooms or hotel meeting rooms. The informality of the space tends to lead to much more intermingling of participants with Tribunal members than would be common in the Court system, for example, with respect to Judges. If the "prosecution team" has coffee or lunch with the Hearing Tribunal to the exclusion of the defence or is perceived to be communicating separately with the Hearing Tribunal members, a reasonable apprehension of bias may be created. 

Tips: In order to minimize this risk ensure that there are separate meeting spaces for the Hearing Tribunal, the prosecution, and the investigated member and their counselthat can be used for meetings, coffee, and lunches.

6. Tribunal Member Demeanour

Trap: Over the course of many hearings Tribunal members may become familiar with College staff and legal counsel who are part of the "prosecution team" or with members of the "defense team". Tribunal members may start acting in a familiar way with the participants they know asking about social engagements or their family and using their first name rather than their formal name. Tribunal members may treat other participants who are not known to them with reserve. Such conduct is routinely used to challenge Hearing Tribunal decisions based on allegations of a reasonable apprehension of bias.

Tips: Tribunal members must not only be impartial and unbiased but must also ensure that they appear that way. In other words, would the way you act cause a reasonable observer to question whether you will be even-handed and unbiased? Remember that the scrutiny by the investigated member of Tribunal members will be enhanced due to the multiple roles the College plays in conducting investigations, referring matters to a hearing, appointing the Hearing Tribunal members, and conducting the prosecution. Appropriate separation of function is maintained but this may not be understood by the investigated member who will simply focus on how things look in the hearing room. So, do not act too familiar with either the prosecution or the defence. Maintain a reserved demeanor. Acting too friendly or familiar can create a reasonable apprehension of bias.

7. Maintaining Control of the Hearing

Trap: Sometimes it seems to Hearing Tribunal members that the lawyers are running the hearing and the non-legally trained Hearing Tribunal members are just "along for the ride." This loss of control creates problems with process and may cause the hearing to veer in unexpected directions.

Tips: The Tribunal Chair must remember that he or she is "chairing" the hearing. The Chair needs to be polite but firm with the Tribunal making decisions about process after giving both sides an opportunity for input. The Chairperson cannot let the hearing get out of his or her control. Some Chairpersons go too far the other way in an attempt to show counsel "who is boss." The Chairperson's desired demeanour is "firm but fair" with no doubt about who is actually in control. If important questions arise during the hearing about the appropriate procedure to follow, the Hearing Tribunal Chair should seek submissions from the parties and then recess and discuss in caucus to benefit from the views of the entire Hearing Tribunal. Try to instill an air of dignity and gravitas. Do remember that you control the pace of the hearing – not the prosecution and not the defence. But at the same time seek their input on the need for breaks and the required length of breaks.

8. Handling Objections

Trap: When there is an objection at a hearing, argument can sometimes go back and forth between legal counsel many times. We call this the "ping-pong" effect as the points bounce back and forth across the "net" over and over again. Unrestrained argument can, at times, become quite heated due to the stress and strain of a hearing and unrestrained argument can waste precious hearing time.

Tips: Do not allow legal counsel to engage in unrestrained argument. Always follow the "rule of 3". If there is an objection by legal counsel always follow the following steps. One: the objecting counsel states the reason for their objection and makes argument. Two: the other counsel is given an opportunity to respond. Three: the counsel making the objection has an opportunity to reply to the other counsel. The Chair must retain control of the hearing and insist that the "rule of 3" be followed.

9. Interaction with Witnesses

Trap: Given typical locations for discipline hearings such as College offices or hotel meeting rooms, there are significant opportunities for interaction between Tribunal members and witnesses. It is not uncommon for the investigated member or other witnesses to try to engage Tribunal members in discussion. Tribunal members will not want to appear rude so may engage in conversation with witnesses during a break. Investigated members or other witnesses may be trying to establish a rapport with the Tribunal member. Two potential problems arise. First, other participants will see you speaking to the witness and will not know what is being discussed. Second, investigated members and witnesses may try to steer small-talk towards the subject-matter of the hearing which cannot be discussed.

Tips: Do avoid small-talk with the witnesses or the investigated member during breaks. If you are approached just politely disengage as quickly as possible and go back to join the Hearing Tribunal. An appropriate amount of separation will be easier to achieve if there are separate meeting rooms for the participants during breaks.

10. The Role of Independent Legal Counsel to the Hearing Tribunal

Trap: Independent legal counsel can provide invaluable assistance to a Hearing Tribunal. However, the proper role of independent legal counsel must be understood and respected to protect the integrity of the process. If independent legal counsel begins to act like they are a member of the Hearing Tribunal, then problems arise. There have been numerous Court challenges where Tribunal decisions were overturned because, for example, independent legal counsel took over the running of the hearing, acted aggressively with one of the parties, made the rulings in the hearing, and in fact made the decision for the Hearing Tribunal.

Tips: Independent legal counsel is not part of the Hearing Tribunal and is not a decision-maker. Having the individual sit apart from the Hearing Tribunal reinforces the proper role of independent legal counsel. Independent legal counsel provides advice to the Tribunal on legal and procedural issues, which the Tribunal is free to accept or reject. After receiving advice from independent legal counsel, the Hearing Tribunal must still rule on the issue. Prior to ruling, provide the parties the opportunity to comment on the advice being given by independent legal counsel. Do not let it appear that independent legal counsel is issuing the rulings that are the preserve of the Hearing Tribunal. Do not encourage or allow independent legal counsel to take over the running of the case.

Conclusion

Members of the profession who are prepared to serve as Hearing Tribunal members provide an incredibly valuable service to the profession and, most importantly, to the public. By following these "Top 10" common-sense tips, Tribunal members will ensure that their conduct during hearings remains above reproach freeing them to focus on the "peer review" process that is the core of our system of our professional discipline system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions