Download Workshop #3 Promoting Tribunal Neutrality in an Integrated

SOAR 2015 ANNUAL CONFERENCE
ACTING IN THE PUBLIC INTERESTS:
ACCESS, INNOVATION AND
ACCOUNTABILITY
Promoting Tribunal Neutrality in an Integrated
Regulatory Model
Thursday, November 5, 2015
Panel:
Mary Condon
Vicki White
Grace Knakowski & David A. Wright
Moderator:
Grace Knakowski
Advice
from the courts on how best to deal with
safeguarding tribunal neutrality in an integrated
regulatory model
INDEPENDENCE: SOURCES OF RIGHTS

Common Law - interpret the legislation to require independence; falls
within bias

Section 11(d) of the Charter - “charged with an offence”

Section 7 of the Charter - life, liberty, security of the person

Section 2(e) of the Canadian Bill of Rights - federal tribunals,
determination of rights and obligations

Quasi-constitutional provincial statutes - Quebec, Alberta, NOT Ontario

Preamble to the Constitution - judges, justices of the peace, NOT
tribunals; Ocean Port
OCEAN PORT: NO CONSTITUTIONAL
RIGHT TO TRIBUNAL INDEPENDENCE

Not appropriate to find in the preamble to the Constitution a general
requirement of tribunal independence

Tribunals and other administrative decision-makers are part of the
executive, implement policy

Not appropriate to include constitutional independence
THREE ATTRIBUTES OF JUDICIAL INDEPENDENCE

Security of tenure - cannot be removed except for cause to maximum
retirement age

Financial security - independent commission to establish judicial
salaries

Administrative independence - control over court administration
EVEN WHEN IT APPLIES, TRIBUNAL INDEPENDENCE
NOT THE SAME AS JUDICIAL INDEPENDENCE

Matsqui – applied in light of the particular context of the tribunal

Régie des alcools – independence does not require tribunal members to have life
appointments, but requires fixed-term appointments and not at pleasure; also does not
require the same degree of operational/administrative independence
RÉGIE: NEED FOR SEPARATION OF FUNCTIONS

Not problematic to have the same institution involved in investigation, prosecution and
adjudication

Cannot have the same persons involved in earlier processes and adjudication in the same
case

Prosecuting counsel can never participate in the adjudication process

Same directors or individuals cannot decide to have a hearing and then adjudicate the
hearing
The Structure of the Ontario
Securities Commission and its
Tribunal
Mary Condon, Commissioner, Ontario Securities Commission
SOAR Conference, November 5, 2015
OSC Structure: Governance, Policy-Making
and Adjudicative Functions
• The OSC is a self-funded Crown corporation, accountable to the Ontario Legislature
through the Minister of Finance.
 Memorandum of Understanding (MOU) with the Minister of Finance
• The OSC must be composed of at least nine Members but not more than 16.
 At present, the OSC is composed of 15 Members. Three Members are full-time − the Chair and Vice
Chairs − and 12 are part-time. For more information about the role of the OSC’s members see:
http://www.osc.gov.on.ca/en/About_ga_20110608_osc-member-profile.htm
 Members have diverse professional and industry experience in areas including, accounting, auditing,
finance, investment management, retail and institutional investments, investment banking,
insurance, legal and adjudication: For more information about the OSC Members, see:
http://www.osc.gov.on.ca/en/About_members_index.htm
 For more information about the OSC’s structure see: http://www.osc.gov.on.ca/en/About_ourstructure_index.htm
• Members discharge their responsibilities through three independent but related roles:
 Members of the Board of Directors of the OSC
 Regulatory Policy Function
 Adjudicative Function
MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION
SOAR CONFERENCE, NOVEMBER 5, 2015
9
OSC Structure: Governance, Policy-Making
and Adjudicative Functions
• Board of Directors
 As required, and at least quarterly, the Members meet as a Board of Directors
• Regular meetings of the full Board and standing committees of the Board (Audit and Finance
Committee, Governance and Nominating Committee, and Human Resources and Compensations
Committee)
 Oversight responsibilities are similar to Boards of public companies
• Regulatory Policy Function
 Every two weeks, Members meet to deal with regulatory matters, involving policy strategy, regulatory
initiatives, rule approvals, and administration of the Securities Act. For more information about the OSC’s
Rule making powers see: http://www.osc.gov.on.ca/documents/en/SecuritiesCategory0/backgrounder_rule_making.pdf
• Adjudicative Function
 Members preside over hearings in panels of one or more
 Members have oversight of adjudicative processes and procedures
 The Adjudicative Committee is a Standing Policy Committee of the OSC with the mandate to evaluate the
OSC's adjudicative procedures and practices and recommend improvements. For more information see:
http://www.osc.gov.on.ca/documents/en/About/ga_20070515_osc_adj_com_mandate.pdf
MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION
SOAR CONFERENCE, NOVEMBER 5, 2015
10
OSC Structure: Governance, Policy-Making
and Adjudicative Functions
• Types of OSC adjudicative proceedings include:
 Enforcement proceedings
• Involve allegations of breaches of securities law or conduct contrary to the public interest
• May result in sanctions ordered against respondents that include prohibitions or restrictions on
participation in the capital markets, administrative penalties and disgorgement
 Hearings in connection with take-over bids, issuer bids and other merger and acquisitions transactional
issues
 Reviews of decisions of self-regulatory organizations (IIROC and MFDA), a recognized exchange (TSX),
recognized quotation and trade reporting system, recognized clearing agency or designated trade
repository.
 Reviews of administrative decisions of the Executive Director or other Commission employee with
designated decision-making authority (Directors’ decisions)
• For more information about OSC adjudicative proceedings and their procedure see:
 OSC Rules of Procedure: http://www.osc.gov.on.ca/en/Proceedings_rules-procedure_index.htm
 Guide to Enforcement Proceedings and FAQs About Hearings:
http://www.osc.gov.on.ca/en/Proceedings_appearing-before-commission_index.htm
MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION
SOAR CONFERENCE, NOVEMBER 5, 2015
11
OSC Structure: Governance, Policy-Making
and Adjudicative Functions
• Independence of Members:
 Members must be independent of management (with the exception of the Chair and the Vice-Chairs).
 All Members must be free from any interest or business or other relationship which could or could
reasonably be perceived to materially interfere with the Member’s ability to act with a view to the best
interests of the OSC in the achievement of its objectives.
 All Members must adhere to the requirements of the OSC’s Code of Conduct and the Public Service of
Ontario Act, 2006 with respect to conflicts of interest in relation to the conduct of the affairs of the OSC.
 When exercising their independent judgment as a Member, a Director, a member of a Committee, or a
member of a tribunal, Members must recuse themselves from any matter that gives rise to conflict of
interest concerns, or where there may be a perception of conflict, or a perception that a Member may not
bring objective judgment to their consideration of the matter.
 Members who perform any investigative duties cannot sit on a hearing panel in respect of that matter.
• Framework for ensuring independence for a tribunal in an integrated agency:
 OSC Code of Conduct: http://www.osc.gov.on.ca/documents/en/About/ga_20131101_osc-codeconduct.pdf
 Guidelines for Members and Employees Engaging in Adjudication:
https://www.osc.gov.on.ca/documents/en/About/ga_20080401_guide_lines_for_members.pdf
 Charter of Governance Roles and Responsibilities:
https://www.osc.gov.on.ca/documents/en/About/ga_20100316_charter_of_governance.pdf
MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION
SOAR CONFERENCE, NOVEMBER 5, 2015
12
SOAR 2015 Annual Conference:
Promoting Tribunal Neutrality in an
Integrated Regulatory Model
Vicki White
Co-Director, Legal Office
(416) 967-2600 ext. 433
[email protected]
College of Physicians and Surgeons of Ontario
QUALITY PROFESSIONALS | HEALTHY SYSTEM | PUBLIC TRUST
Governing Legislation: Regulated Health
Professions Act/Health Professions Procedural Code
Regulatory scheme for 26 health professions
Nurses, dentists, pharmacists, physiotherapists, etc.
Discipline Committee: independent adjudicative body
wholly within College structure
College of
Physicians and
Surgeons of Ontario
Discipline Committee composition
37 members
Appointed by Council (Code, s. 38(1))
11 physician members of Council
8 public members of Council
18 physicians who are not on Council
Panel composition
Generally, panels of 5 (min. of 3) (Code, s. 38(2))
Must have minimum of 1 physician member of Council and 2 public
members (Code, s. 38(2) & (3))
Quorum = 3, including 1 public member (Code, s. 38(5))
College of
Physicians and
Surgeons of Ontario
Measures to Protect Independence/ Neutrality
Discipline panels selected by Chair of Discipline Committee
(Code, s. 38(1))
No panel member who participated in investigation (Code, s.
38(4))
No communication by panel members with parties (Code, s.
43)
Panel has its own independent legal counsel (Code, s. 44)
College of
Physicians and
Surgeons of Ontario
DAVID A. WRIGHT, CHAIR
GRACE KNAKOWSKI, REGISTRAR & SENIOR COUNSEL
MISSION AND CORE VALUES
Who We Are
The Law Society Tribunal is an independent adjudicative tribunal
within the Law Society of Upper Canada, consisting of staff and
appointed adjudicators. Adjudicators include benchers and other
lawyer, paralegal and lay appointees.
Mission Statement
The Law Society Tribunal processes, hears and decides regulatory
cases about Ontario lawyers and paralegals in a manner that is
fair, just and in the public interest.
MISSION AND CORE VALUES
Core Values
Fairness:
We will be fair and impartial in our processes and proceedings, treating all with respect, courtesy and dignity.
Quality:
We strive for excellence, acting with dedication and professionalism. We aim for continuous improvement, valuing
diverse perspectives. We commit to an atmosphere that enables all to perform at their best.
Transparency:
We will act in a manner that bears the closest scrutiny. Our decisions, rules, processes and policies will be available to
licensees and the public, accessible and easily understandable.
Timeliness:
We are guided by the importance of timely resolution of all matters. We will schedule hearing and continuation dates
expeditiously and complete written reasons promptly.
KEY FEATURES OF THE LAW SOCIETY
TRIBUNAL

A tribunal in the model of other administrative tribunals

Leadership: full-time, independent non-bencher Chair and two
elected bencher Vice-Chairs

Increased use of appointed non-bencher adjudicators appointed by
Convocation

Appointments of new appointed adjudicators to be based on merit,
adjudicative experience

Performance evaluation of all adjudicators, including benchers
KEY FEATURES OF THE LAW SOCIETY
TRIBUNAL

Benchers are not required to sit as adjudicators; can decide to
focus on policy work

Benchers must apply for Tribunal membership; will be appointed to
a first term if they agree to the requirements

Performance evaluation of all adjudicators, including benchers, by
the Chair and unsatisfactory evaluation will lead to nonreappointment recommendation

Mandatory enhanced training and education
KEY FEATURES OF THE LAW SOCIETY
TRIBUNAL

Chair appoints all hearing and appeal panels

By regulation, three-person panels on lawyer hearings, require at
least one elected bencher and one lay adjudicator; Chair can
depart

Three-person panels on paralegal hearings require one lawyer,
one paralegal, one lay adjudicator; Chair can depart

Most appeals heard by five adjudicators – similar composition
requirements
DEFINING AN INDEPENDENT IDENTITY

Priority was to work on identity for the Tribunal as a whole
o
Developing mission statement and core values
o
Logo and stationery to visually separate the Tribunal from the policy and
prosecutorial arms of the Law Society
o
Independent bilingual website
o

www.lawsocietytribunal.ca

www.tribunaldubarreau.ca
Enhance the view of the Tribunal as a unified team consisting of staff, appointed
and bencher adjudicators
What
are some of the challenges, inherent
tensions or conflicts that you have noticed may
occur in an integrated regulatory model where
governance, policy-making and adjudicative
functions intersect?
What
are some of the practices that your tribunal
implements to prevent conflicts that can occur in an
integrated regulatory model?
Example
of a bias claim flowing from the
intersection of enforcement or policy-making and
adjudication that triggered a tribunal challenge.
What
helped your organization to resolve the
challenge raised?
Can
the co-existence of regulatory governance,
policy-making and adjudicative functions within the
same organization allow for tribunal neutrality?
Questions
& Answers