22nd Annual Advanced Administrative Law & Practice - WEB

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EARN CPD CREDITS

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Canada’s administrative law sector is adapting to new demands. Attend the conference where Administrative Law Practitioners – from across Canada and across sectors – come to find clarity in decision making.

Legal Accreditation

The demand for accommodation and access to justice is increasing among our vulnerable population. Pivoting to virtual platforms has created the demand to adopt new technology while ensuring adherence to the highest ethical standards. Meanwhile decision makers continue to see their decisions and reasoning more severely scrutinized.

To help you make sense of these new developments, attend the Canadian Institute’s 22nd Annual Conference on Advanced Administrative Law and Practice in Ottawa on October 27 & 28, 2022. Our renown legal faculty—comprised of federal and provincial decision makers, Justices, attorneys, and academics—will address the most critical challenges affecting professionals working in the administrative and regulatory sectors.

2022 Highlights, include sessions on:

M Ensuring Procedural Fairness for Self-Represented Litigants: How Administrative Bodies Can Walk the Line Between Passive and Active Participants

M Meeting The Duty to Accommodate Mandate and Ensuring Access to Justice Amid Technology Barriers in Virtual Courtroom Proceedings

M Privacy and Confidentiality Versus the Open Court Principal: Determining When the Open Court Policy Applies and to Whom

M How to Balance Oversight Deliberative Process Privilege While Ensuring Board and Tribunal Members Adhere to High Standards of Conduct

M How Administrative Bodies Can Reduce Barriers to Hiring and Retaining Effective Employees and Maximize Diversity, Equity, and Inclusion Best Practices under the Public Service Employment Act Amendments

Ensure that you and your team act in accordance with the law and that decisions meet judicial scrutiny by attending two days of practical and relevant discussion with crucial insights. Register now.

EARN CPD CREDITS

This 2-day conference program can be applied towards 7.5 of the 9 substantive hours, 1.5 of the 3 professionalism hours, as well as 1 of the 3 EDI hours, of annual Continuing Professional Development (CPD) as required by the Law Society of Ontario. Members will also receive an additional 3 substantive hours for attending pre-conference Workshop A, and members will receive an additional 3 professionalism hours for attending pre-conference Workshop B.

The same number of hours may be applied toward your continuing legal education requirements in British Columbia

The Barreau do Québec automatically recognizes the same number of hours for this training activity, the latter having been accredited by another Law Society subject to MCLE.

For Alberta lawyers, consider including this course as a CPD learning activity in your mandatory annual Continuing Professional Development Plan as required by the Law Society of Alberta

The Law Society of Saskatchewan recognizes another province’s CPD credits so long as the hours are submitted to the Director of Admissions & Education for approval.

P S EDI

Credit Substantive Credit EDI Credit

Distinguished Faculty

CONFERENCE CO-CHAIRS:

Michael H. Morris

Senior General Counsel Justice Canada

Lori Sterling Senior Counsel

Bennett Jones

Former Associate Deputy Minister Justice Canada

GOVERNMENT

SPEAKERS:

Brenda Baxter

Assistant Deputy Minister, Compliance, Operations and Program Development, Labour Program Employment and Social Department Canada(ESDC)

Meera Bennett

Legal Counsel, Legal Services Branch Ministry of the Attorney General, British Columbia Vice President BC Council of Administrative Tribunals (BCCAT)

Chair, BCCAT’s Education Committee

Ian Darling Chair

Condominium Authority Tribunal

Ian Demers General Counsel

Justice Canada

Alexander Gay

Senior Litigation Counsel Justice Canada

Suzanne Gilbert

Deputy Chairperson, Immigration Appeal Division

Immigration and Refugee Board of Canada

Carla Goncalves

Deputy Director Office of the Independent Police Review Director

Michael Gottheil

Federal Accessibility Commissioner

Canadian Human Rights Commission

Associate Justice Alexandre Kaufman

Superior Court of Justice

Jennifer Khurana

Chairperson

Canadian Human Rights Tribunal Marie-Claude Landry Ad. E. Chief Commissioner

Canadian Human Rights Commission

Ian R. Mackenzie Board Member

Federal Public Sector Labour Relations and Employment Board (FPSLREB)

J. Scott MacKenzie, Q.C. Chair & CEO

PEI Regulatory & Appeals Commission

Sunil S. Mathai

Crown Counsel, Crown Law Office –Criminal Ministry of the Attorney General

Tim Moseley Chief Adjudicator Capital Markets Tribunal

Elsa Kelly Rhéaume

Coordinating Member, Refugee Protection Division’s Task Force on Less Complex Claims

Immigration and Refugee Board of Canada

Paula Thompson

Deputy Chairperson, Refugee Appeal Division

Immigration and Refugee Board of Canada

Michel Waechter

Président, Commission d’examen des troubles mentaux

Tribunal administratif du Québec

LAW FIRM AND ACADEMIC SPEAKERS:

Paul Aterman

Chairperson/ Président Social Security Tribunal of Canada

Paul Daly

University Research Chair, Administrative Law & Governance University of Ottawa

Nadia Effendi Partner

Borden Ladner Gervais LLP

Kenneth Jull Counsel

Gardiner Roberts LLP

Juliet L. C. Knapton

Advocate-in-Residence and Professor (Part-Time), Faculty of Common Law University of Ottawa

Alexandra Logvin Counsel

Fasken Martineau DuMoulin LLP

Jamie Chai Yun Liew

Director, Institute of Feminist and Gender Studies University of Ottawa

Virginia Lomax Counsel

Westaway Law Group

Kathryn Manning Counsel

DMG Advocates LLP Co-Chair E-Hearings Task Force

Warda Shazadi Meighen Partner

Landings LLP

Sean Moreman

Lead Counsel – Media Law, and Managing Director – Access to Information CBC

Hadayt Nazami Founding Partner Nazami & Associates

Mark Power Partner

Juristes Power Law

Alyssa Tomkins Partner

Gowlings WLG

Mario Torres President Canadian Hispanic Bar Association Lawyer Brazeau Seller Law

Leslie A. Walden

Part-Time Professor, Faculty of Common Law

University of Ottawa

Workshops

Writing Reasons after Vavilov: Defensible Decisions, Access to Justice and Plain Language

Microphone Paul Aterman, Chairperson/ Président, Social Security Tribunal of Canada

In this interactive workshop, we will explore how administrative decision-makers can apply the lessons of Vavilov by writing coherent reasons in plain language. We start by examining the law and theory. But then we dive into the practice. We will work on rewriting excerpts from tribunal decisions, so that normal people can understand them.

This workshop is intended for tribunal members, other administrative decision-makers and tribunal counsel who review decisions. If you want to get beyond legalese and reach the people who are affected by your decisions, then this workshop is for you. If you missed last year’s highly popular workshop, or need a refresher, this writing session will re-examine and repeat the materials you missed. Enrolment is capped at 25 and this session is being offered in-person only.

This session will offer practical strategies for lawyers and non-lawyers alike, addressing:

• Developing meaningful ways administrative tribunals can justify decision making

• Ensuring fairness, quality and consistency in decision making

• Articulating your interpretation and fully explaining your decision and writing effective decisions

• Finding efficiency in writing decisions amid high-traffic tribunals

• Exploring the standard of “correctness”

• Honing your redaction skills

*A light luncheon will be served to delegates attending both workshop A & B.

Ethical Best Practices for Conducting Hearings In-Person and on Virtual Platforms

Microphone Leslie A. Walden, Part-Time Professor, Faculty of Common Law, University of Ottawa

Juliet L. C. Knapton, Advocate-in-Residence and Professor (Part-Time), Faculty of Common Law, University of Ottawa

Kathryn Manning, Counsel, DMG Advocates LLP, Co-Chair, E-Hearings Task Force

This session will include live anonymous polling, small-group discussions and hypothetical scenarios. This session is offered in-person only.

• Gauging the criteria for holding a hearing in-person versus on a virtual platform

• Deciphering whether the imposed duty of competence on lawyers is being upheld when it comes to technological competency and ensuring the client is well represented

• How behaving with courtesy and good faith takes on new meaning in a virtual court

• Communicating with clients without interfere in the proceedings

• Deciphering your legal duty to assist a self-represented litigant without becoming an advocate

» How to not take advantage of a self-represented litigant’s lack of knowledge regarding practice and procedure

» Deciding when it is appropriate to offer assistance (including technical assistance) to a selfrepresented litigant

» Delineating what kind of assistance will not prejudice or conflict with your client obligations

» Scrutinizing the potential for self-represented litigants to be “left behind” during a remote hearing, how this can happen and what steps can be taken so it doesn’t happen

• Reaffirming best practices for etiquette from appropriate attire to technical courtesy

7:45 Registration Opens

8:45

Opening Remarks from the Co-Chairs

Microphone Michael H. Morris, Senior General Counsel, Justice Canada

Lori Sterling, Senior Counsel, Bennett Jones

Former Associate Deputy Minister Justice Canada

9:00

KEYNOTE ADDRESS

• Identifying the grounds upon which a reviewing court can conduct a preliminary analysis of the legislation when reviewing an administrator’s statutory interpretation

• Analysing the methodology outlined in Hillier v Canada (Attorney General), (2019) for establishing reasonableness

• Understanding the importance of Safe Food Matters v Attorney General of Canada (2022) FCA 19 and the interpretation of the Pest Control Products Act

10:30 Networking Refreshment Break

11:30

Privacy and Confidentiality Versus the Open Court Principle: Determining When the Open Court Policy Applies and to Whom

Microphone Ian R. Mackenzie, Board Member, Federal Public Sector Labour Relations and Employment Board (FPSLREB)

Sean Moreman, Lead Counsel – Media Law, and Managing Director – Access to Information, CBC

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Microphone Associate Justice Alexandre Kaufman, Superior Court of Justice 9:45

Practical Ways to Apply the Vavilov Reasonableness Review to Questions of Statutory Interpretation

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10:45

Ensuring the Highest Degree of Ethical Conduct in the Deliberative Privilege

Microphone Alexander Gay, Senior Litigation Counsel, Justice Canada

Sunil S. Mathai, Crown Counsel, Crown Law Office –Criminal, Ministry of the Attorney General

Microphone Jamie Chai Yun Liew, Director, Institute of Feminist and Gender Studies, University of Ottawa

Hadayt Nazami, Founding Partner, Nazami & Associates

Warda Shazadi Meighen, Partner, Landings LLP

This session will provide an in-depth analysis of the Supreme Court of Canada’s decision in the appeal of Mason v. Minister of Citizenship and Immigration (2022), one of the first substantive appellate decisions concerning judicial review post-Vavilov Speakers will address Canada’s power to deport migrants, or foreign nationals for reasons not pursuant to national security concerns, or criminal charges.

• Examining principals of statutory interpretation in federal law

• Exploring methodology for conducting a reasonableness review of a decision maker’s interpretation of a statute

Tim Moseley, Chief Adjudicator, Capital Markets Tribunal

Deliberative Privilege ensures confidentiality in the decisionmaking process. This panel will examine the privilege and will also address ethical concerns in the deliberation process.

• Gauging a chair’s oversight authority over members decisions and writing and ensuring consistency in decision making

• Understanding deliberate privilege in light of Shuttleworth v. Ontario (Safety, Licensing Appeals Standards Tribunal) (2019)

• Identifying the minimum standards required to ensure both the existence and appearance of adjudicative independence

• How far can a chair go when discussing human right’s decisions?

• What chairs can and cannot discussed when making decisions with other members?

• Prioritizing the rules and best practices for how to handle personal information

• Determining the balance between collecting the correct information to make a decision, and a person’s right to be heard

• Deciphering when to file an order for confidentiality and how it will be considered by the court

• Analysing how the court will consider applications for representatives to use a pseudonym, and considerations for self-represented litigants?

• Reviewing the decision to uphold an order for confidentiality with a look at Desjardins v. Canada (Attorney General), (2020)

• Analysing the decision to grant confidentiality with a look at Democracy Watch v. Canada (Attorney General), (2021)

• Validating when the open court principal apply and to whom, with a look at the Supreme Court of Canada (“SCC”) in Sherman Estate v Donovan, (2021)

• What kinds of proceedings meet the open court principal?

• How to handle requests for a private hearing

12:30 Luncheon for Speakers and Delegates

Ensuring Access to Justice in Administrative Law

Microphone Marie-Claude Landry Ad. E., Chief Commissioner, Canadian Human Rights Commission

2:00

How to Meet the Duty to Accommodate and Ensure Access to Justice Amid Technological Barriers in Virtual Courtroom Proceedings

Microphone

Ian Darling, Chair, Condominium Authority Tribunal

Michael Gottheil, Federal Accessibility Commissioner, Canadian Human Rights Commission

Michel Waechter, Président, Commission d’examen des troubles mentaux, Tribunal administratif du Québec

• Clarifying in what instances can tribunals provide accommodation to parties when technology is a barrier

• Exploring the operational component of adding translation services or closed captioning services

• How does accommodation change the proceeding, including the timelines?

• Assessing accommodation processes to determine whether accommodation was met and reasonable

• Identifying and removing barriers within the process, before an accommodation request

2:45 Networking Refreshment Break

Understanding How Your Administrative Decisions Could End in Civil Litigation: Exploring Ramifications and Other Consequences

Microphone Ian Demers, General Counsel, Justice Canada

Alexandra Logvin, Counsel, Fasken Martineau DuMoulin LLP

Canada (Attorney General) v. TeleZone (2010), is the seminal case for allowing a civil damages claim to be filed without first bringing an application for judicial review of the decision in Federal Court. In this session , speakers will discuss whether there is a willingness to depart from this decision.

• Examining how administrative law reports are used in civil law proceedings as evidence and how they are weighed

• Exploring how administrative decisions are scrutinized in civil court proceedings and the ramifications of this scrutiny

• Discussing the impact of litigation holds on your investigation’s files

• Troubleshooting the potential consequences of a private redress following a tribunal decision

• Mapping potential avenues for a lawsuit

• Seeking compensation or damages – not seeking to overturn an administrative decision

• Case law review with a look at:

» Sulaimon c. Procureur général du Québec, (2021)

» Association des intervenants en dépendance du Québec c. Villeneuve, (2021)

» M.S. c. Canada, (2021)

How Vavilov Opened the Door for Judicial Reviews and Statutory Appeals: What You Should Now Expect

Microphone Meera Bennett, Legal Counsel Legal Services Branch, Ministry of the Attorney General, British Columbia, Vice President, BC Council of Administrative Tribunals (BCCAT), Chair, BCCAT’s Education Committee

Alyssa Tomkins, Partner, Gowlings WLG

• Identifying the reasonableness standard for a judicial review

• Diagnosing whether it is a question of fact in law or jurisdiction

• Identifying the correctness or the error of law

• Examining the rule of law exception to the presumption of reasonableness review with a look at the United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 and Supreme Court of Canada’s decision in Moore v. British Columbia (Education), (2012)

• Analyzing exceptions such as when the application of appellate standards of review whereby a statutory right of appeal has been created

• Determining when the correctness review applies

Closing Remarks from the Co-Chairs

Main Conference Day Two

THURSDAY,

9:00

Opening Remarks from the Co-Chairs

Microphone Michael H. Morris, Senior General Counsel, Justice Canada

Lori Sterling, Senior Counsel, Bennett Jones

Former Associate Deputy Minister Justice Canada

9:05

Year in Review of Top Administrative Law Decisions and Cases to Watch

Microphone Paul Daly, University Research Chair in Administrative Law & Governance, University of Ottawa

Nadia Effendi, Partner, Borden Ladner Gervais LLP

Lori Sterling, Senior Counsel, Bennett Jones

Former Associate Deputy Minister Justice Canada

During this session, panelists will address the most significant cases causing ripples in Canada’s administrative law sector. Understand how current decisions are impacting the legal landscape, how ongoing cases may evolve, and what to expect from future cases.

• Examining recent cases dealing with access to justice, e.g. who can bring challenges (Attorney General of BC v Council Canadians with Disabilities 2022); when are advance costs orders in public interest litigation available (Andersen v Alberta 2021) and standards for self-represented litigants (Girao v Cunningham)

• Assessing delay and remedies in administrative law in light of Law Society of Saskatchewan v Abrametz (2021)

• Providing an update on the operation of the Vavilov framework by the Supreme Court (in Entertainment Software Association) and provincial Courts of Appeal

• Critically analyzing the implications for administrative tribunals of the Supreme Court’s analysis in Sullivan and litigation about British Columbia’s Civil Resolution Tribunal

9:30 Networking Refreshment Break

10:45

Ensure Procedural Fairness for SelfRepresented Litigants: How Administrative Bodies Can Walk the Line Between Passive and Active Participants

Microphone Jennifer Khurana, Chairperson, Canadian Human Rights Tribunal

J. Scott MacKenzie, Q.C., Chair & CEO, PEI Regulatory & Appeals Commission

• Finding the balance between assisting a self-represented applicant in the legal process person, without over assisting

» Do they know what is happening in the legal process?

» Can they properly and appropriately make their case

• What actions can taint the case, and what actions could be seen as being an advocate

• How do you break down the passive adjudication between applicant and adjudicators?

11:30

Best Practices for Conducting Internal Regulatory Investigations that will Withstand Scrutiny on Judicial Review

Microphone Brenda Baxter, Assistant Deputy Minister, Compliance, Operations and Program Development, Labour Program, Employment and Social Department Canada (ESDC)

Carla Goncalves, Deputy Director, Office of the Independent Police Review Director

Kenneth Jull, Counsel, Gardiner Roberts LLP

• Navigating across the Rubicon in search of due diligence, random tests

» Dawn raids

» Crossing the detention line

» Statements from employees

» Continuing regulator purpose

» Applying the principles of natural justice to administrative investigations

• Analyzing overlaps between the roles of administrative investigators and police investigators

• Understanding how the investigative role differs from the function of a decision-making tribunal

• What is the scope of your statutory authority? Assessing the authority of regulatory agencies under the Public Inquiries Act

• Determining standards that apply to your organization

• Classifying the context of non-criminal, quasi-criminal or criminal

12:15 Luncheon for Speakers and Delegates

Microphone Virginia Lomax, Counsel, Westaway Law Group

Mario Torres, President, Canadian Hispanic Bar Association, Lawyer, Brazeau Seller Law

This session will examine the 2021 amendments to the federal Public Service Employment Act which aims to strengthen diversity and inclusion, and address biases and barriers faced by equity-seeking groups.

• Analysing whether employee assessment methods contain bias and barriers exist that could disadvantage persons in equityseeking groups

• How to investigate errors, omissions or improper conducts resulting from bias or barriers in staffing that disadvantages person in equity-seeking groups?

• How to ensure that permanent residents of Canada benefit from the same hiring preference as Canadian citizens

What to Anticipate from Bill C-32, a Modernized Official Languages Act?

How to Prepare for the Impact on Administrative Bodies

Microphone Mark Power, Partner, Juristes Power Law

In March 2022, the Minister for Official Languages tabled a Bill C-32 to modernize the Official Languages Act. This session will unpack some of the anticipated changes and how administrative bodies can prepare.

• Understanding how this Act strengthens the powers of the Commissioner of Official Languages, including new authority, compliance agreements, to impose administrative monetary penalties

• What remedy could be used to protect linguistic minorities across the country?

• How will federal institutions be expected promote official languages for minority communities

• What new rights and obligations are could be established to protect the French language in private businesses under federal jurisdiction?

3:00 CASE STUDY

Modernizing Processes to Streamline

Decision Making and Decrease Backlog for Administrative Bodies

Microphone Suzanne Gilbert, Deputy Chairperson, Immigration Appeal Division, Immigration and Refugee Board of Canada

Paula Thompson, Deputy Chairperson, Refugee Appeal Division, Immigration and Refugee Board of Canada

Elsa Kelly Rhéaume, Coordinating Member, Refugee Protection Division’s Task Force on Less Complex Claims, Immigration and Refugee Board of Canada

Hear how the Immigration and Refugee Board of Canada (IRB) is developing a new division to clarify, simplify and modernize its processes. Discover practical applications and how they can be applied to other administrative bodies to diminish backlog. Points of discussion will address:

• Enhancing efficiency and reducing timelines for finalizing appeals

• Creating consistency across divisions

• Clarifying the processes and simplify the language used to make proceedings more accessible

• Correcting inconsistencies between the English and French versions of policy

• Providing a minimum time frame for the notice of hearing

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How Administrative Bodies Can Reduce Barriers to Hiring and Retaining Effective Employees and Maximize Diversity, Equity, and Inclusion Best Practices under the Public Service Employment Act Amendments

Planning Ahead for Live Conferences: C5’s All Secure Safety Plan

As ACI and our partners plan for in-person events, we are committed to building and enhancing the planning and preparation with a view to offering our guests a safe place for live conference delivery. In addition, to ensure your safety, our event staff is fully vaccinated.

All our events will adhere to official government and local authority guidance in addition to venue or location-specific regulations, and will follow the commitments below.

Attendance Screening

All attendees will need to assert that at the time that they first attend the conference and for the 10 days prior:

y Have not experienced any COVID-19 symptoms now or within the last 10 days.

y Have not had close contact with any person with or suspected of having COVID-19 within the last 10 days.

y Have not had a positive COVID-19 test within the last 10 days.

y Have not been advised by any health authority, government agency or regulatory body, within the last 10 days, to self-isolate due to possible exposure to COVID-19.

Link to COVID-19 symptoms: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html

We are closely monitoring industry best practices and will be evaluating further additional measures pertaining to vaccinations and on-site screening based on the advice of health authorities.

Safety and Physical Distancing

y Physical distancing protocols such as limiting attendance, directional signage and markers throughout the conference.

y A conference room layout with planned seating for appropriate physical distancing.

y We continue to work closely with our venue partners to ensure the safety of our attendees. Please check back frequently as we monitor and evolve our plan in the weeks ahead.

Enhanced Communication

y Advance communication to all attendees on what to expect and prepare for at the conference: from registration to conference materials to room layout to food and beverage options and more.

y Education and training for the team to ensure we provide a safe and secure conference experience.

y Distribution of local health-resource information in advance of the event.

y Ongoing communication and advance planning with the venue regarding enhanced cleaning and sanitizing measures, response strategies and other onsite protocols.

Increased Cleaning and Sanitation

y Placement of hygiene stations throughout the conference including the registration area, meeting spaces and high frequency areas.

y Availability of personal hygiene and safety products including facial coverings where available.

Reduced Touchpoints

y Reduction of the physical distribution of onsite materials.

y Food and beverage options that ensure minimal handling and exposure.

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