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	Administrative Law and Practice Points


	ROLE OF INDEPENDENT LEGAL COUNSEL
	by Lisa Braverman
	September 2007 - No. 16

	ROLE OF INDEPENDENT LEGAL COUNSEL Contested discipline hearings are less common today than they were in the past as more discipline hearings are being resolved by way of settlement through an agreed statement of facts and joint submission on penalty. Nevertheless, when contested discipline hearings take place, Discipline Committees of administrative tribunals often face complicated legal issues dealing with matters of procedure or evidence and these Committees often do not contain legally trained members with litigation experience. As a result, Discipline Committees, with increasing frequency, are retaining independent legal counsel to provide them with assistance to deal with legal issues as they arise. When a person is retained to act as independent legal counsel to a Discipline Committee, he/she takes on a unique role in the hearing process because that person is neither a party to the hearing nor representing a party to the hearing and that person is also not a part of the Discipline Committee. Given the fact that the person is not a part of the Discipline Committee, a number of guidelines have developed over time to ensure that independent legal counsel do not take over the role of the Discipline Committee. If independent legal counsel takes over the role of the Discipline Committee, there is the risk that, on an appeal of the decision of the Discipline Committee, the Court will set aside the decision of the Discipline Committee. In the recent decision of Yallowega v. Ontario Assn. of Architects, [2007] O.J. No. 3136, the Divisional Court set aside the decision of the Discipline Committee of the Ontario Association of Architects making findings of professional misconduct against an architect, Richard Yallowega, and his architectural firm, Nicholls Yallowega Bélanger Architects-Architectes. The Court agreed with the submission of the appellants that the counsel retained by the Discipline Committee to give it legal advice during the hearing went far beyond the role of counsel advising the Discipline Committee. The Court determined that independent legal counsel took over the conduct of the hearing and therefore the appellants did not have a fair hearing. In the course of their decision, the Court described the evidence which led to this determination: Hearings were held on October 19 and 20, 2005, February 7, 2006 and June 15, 2006. We have reviewed the transcripts of October 19 and 20, 2005 and February 7, 2006 and have identified twenty-two occasions where counsel to the Committee interrupted the submissions of counsel for the appellants. We have identified nineteen occasions where counsel to the Committee purported to speak for the Committee, giving the appearance of being its Chairperson. We have identified four occasions in which counsel to the Committee engaged in heated arguments with counsel for the appellants. Interestingly, in another case, the Divisional Court came to the opposite conclusion about the conduct of independent legal counsel during the course of the discipline hearing and its impact on the fairness of the hearing. The Court in Chuang v. Royal College of Dental Surgeons of Ontario, [2006] O.J. No. 2300 said the following: …Mr. Galligan’s almost constant attendance and the frequent participation as displayed on the portions of the transcript in the record given to us gave us concern that he may have crossed the line from independent legal advisor in s. 44 to something more in the nature of “a counsel or an advocate” in the Rule. Mr. Manning has quite properly raised the issue. However, we do not think that Mr. Galligan’s participation resulted in a denial of natural justice for Dr. Chuang or resulted in an appealable error in the findings of the panel following receipt of advice from Mr. Galligan. The contrary decisions reached in these two cases illustrate that the factual circumstances will determine, in a given case, whether the conduct of independent legal counsel during the course of the hearing was improper. Even where independent legal counsel takes over the role of the Discipline Committee by frequent participation in the hearing, a Court will not in all cases determine that there has been a breach of the Committee’s duty of fairness. PRACTICAL TIPS: Aside from these two decisions, a number of other Ontario decisions and also decisions from other jurisdictions across Canada have considered and provided guidance on the appropriate role of independent legal counsel. In order to avoid or, at least, reduce the possibility of discipline decisions being set aside by the Courts on the basis of the conduct of independent legal counsel during the course of the hearing, the following information from these cases provides some practical tips: · Independent legal counsel should not sit in the middle of the Discipline Committee next to the Chair. Instead, he or she should sit separate from the Discipline Committee, such as at the end of the table where the Discipline Committee sits or even at another table. · Independent legal counsel should not participate in the hearing without being asked to do so by anyone. Instead, he or she should give legal advice only after a request by the Chair or another member of the Discipline Committee panel. However, in some circumstances, it may be necessary to participate in the hearing without receiving a request such as to prevent the Discipline Committee from making a major procedural error such as forgetting to give a party an opportunity to cross-examine a witness. · Independent legal counsel should not interfere with the examination, cross-examination and re-examination of witnesses. · Independent legal counsel should avoid interrupting the submissions made by the parties or their legal counsel. · Independent legal counsel should not argue with the parties or their legal counsel. Instead, he or she should provide any legal advice directly to the Discipline Committee. · Independent legal counsel should not appear to take over the running of the hearing or appear to be the de facto chair of the Discipline Committee. For example, when he or she is providing legal advice, that person must ensure that he/she does not also make a decision or a ruling on that advice. Making a decision or ruling on legal advice is in the sole domain of the Discipline Committee. · Independent legal counsel should not give advice on the merits of the allegations of professional misconduct or incompetence or on the appropriate penalty. Instead, he or she should limit the advice to address legal questions such as matters of procedure or evidence. Aside from caselaw, the governing statute of the administrative tribunal should also be reviewed because it often gives some guidance about the role of independent legal counsel. For example, subsection 35(3) of the Architects Act indicates that the Discipline Committee may seek legal advice from a person who is not counsel in the proceedings and, in such case, the nature of the advice shall be made known to the parties in order that they may make submissions as to the law. This subsection makes clear that the nature of any legal advice received from independent legal counsel, even if it is received in private, must be made known to the parties and the parties are entitled to make submissions with respect to the legal advice before the Discipline Committee makes a decision.



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	This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. For more information, contact: Lisa S. Braverman Steinecke Maciura LeBlanc Barristers & Solicitors, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4, Phone: (416) 599-2200 Ext. 278 Fax: (416) 593-7867 E-Mail: lbraverman@sml-law.com This newsletter will discuss new developments in administrative law, major trends or changes in administrative tribunals, recent administrative law cases decided by courts and tribunals and practical advice for staff/members of administrative tribunals and lawyers practising in this area. Please consult with a lawyer for specific legal advice. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to the above-noted address. Comments and suggestions are also welcome.