The practice of administrative law can pose a hot-bed of ethical issues for both in-house and outside counsel. One of the areas in which ethical issues may arise is in the preparation and filing of the tribunal's record of proceedings once served with a Notice of Application for Judicial Review of its decision. What constitutes the "record of proceedings" can have a direct impact on the eventual outcome of the application. A litigant's case before a court on judicial review can be seriously undermined where a reviewing court is deprived of the proper or complete "record of proceedings." The seriousness of a full and proper record of proceedings on judicial review was confirmed by the Ontario Court of Appeal in Payne v. O.H.R.C. 2000 Canli 5731 when the court stated:
"An Applicant on judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court's inherent powers of judicial review...A statutory body subject to judicial review cannot immunize itself or its processes by arriving at decisions on considerations that are not revealed by the record it files with the court."
For example, in situations where the administrative regime calls for a two stage process where one body performs a pre-screening and investigatory role which may lead to a further oral hearing before a separate body then the record of the first body ought to properly to be part of the record of proceedings on judicial review if there is a challenge to the exercise of that statutory power of decision. Accordingly, the record of proceedings for first stage of the process should reasonably include the following documents: 1. A copy of the complaint required to initiate the process;
2. a copy of any and all transcripts from the interviews; 3. a copy of any order made by
this body; 4. a copy of any reporting letter to a complainant mandated by the legislation and 5 a copy of Reasons if any.
Where the body is required to notify a complainant on the outcome of their "complaint" the document so notifying the complainant ought to be part of the "record of proceedings" too. Indeed, the obligation to include these items in the tribunal's Record of Proceedings is heightened when the tribunal's enabling legislation expressly excludes sections 4 and 28 of the Statutory Powers Procedure Act. These express exceptions call for strict compliance with procedural requirements. Courts have consistently ruled that when a statute grants jurisdiction to a tribunal and provides for a specific manner of procedure the failure to comply renders their decisions a nullity. This is what the Supreme Court of Canada said in Harris v. Law Society of Alberta  1 D.L.R. 401 (S.C.C.):
"When a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualification annexed to the grant must be strictly complied with."
Assuming the first body orders a hearing and the matters proceeds for an oral hearing before a hearing panel, yet another question arises as to what constitutes the "record of proceedings" before this distinct body. Most administrative tribunals do not provide a verbatim record of their proceedings. However, those who either by practice or statute record their proceedings should reasonably include such transcripts in their "record or proceedings". Clearly, all exhibits entered into evidence before the hearing panel should reasonably form part of the "record of proceedings too.
The law on what constitutes the "record of proceedings" in the context of judicial review proceedings has seen a steady evolution towards expansion. Once upon a time the record was primarily restricted to the tribunal's reasons for decision. In Keepwrite Workers' Independent Union v. Keepwrite Products Ltd. (1980) 114 D.L.R. (3d) 162 (ONCA) the Court of Appeal recognized that supplementing the "record of proceedings" by affidavit evidence in order to establish breaches of natural justice and the like which may not otherwise be reflected in the record is permissible. In Siera Club v. Ontario, 2011 ONSC 4086 (Div Ct.) the court expanded the scope to include constitutional error.
Understandably, the Keepwrite Affidavit method of supplementing the "record of proceedings" on judicial review is typically advanced by the moving party of the judicial review application. It is not an automatic right. The moving party can obtain this relief by way of a motion seeking leave of the reviewing court to supplement the record.
Agreement on the Content
of the Record of Proceedings
at Tribunal Level:
Where the parties before an administrative tribunal expressly agree and identify documents that will form part of the "record of proceedings" for any subsequent proceeding that may flow from the tribunal's decision" with the blessing of the hearing panel then those documents ought reasonably to be part of the "record of proceedings" on judicial review. A failure by the tribunal to file the record it agreed to at the hearing with the Divisional Court would entitle the applicant on judicial review to assert the agreement at the Divisional Court.
Who Prepares and Files
the Record with the Court ?
Under s.10 of the Judicial Review Procedure Act, R.S.O. 1990 c.J.1 the person making the statutory power of decision "shall forthwith file in the court" the records of proceedings in which the decision was made. Is this an obligation on the tribunal as distinct from counsel retained to represent the tribunal on judicial review ?
The answer to this question is not clear but appears to raise a serious ethical issue. For example, the Interpretation Act, R.S.O. 1990 ch I.11 defines person to include "other legal representative". Arguably, this could include counsel acting on behalf of the tribunal.
Assuming counsel retained to represent a tribunal on judicial review can indeed prepare and file the "record of proceedings" on behalf of its tribunal client does the tribunal risk tainting the objective appearance of fairness of the subject proceedings and possibly the tribunal itself in circumstances where an act or omission taken by the said counsel is the subject of the said judicial review - for example where counsel prepared an originating process or Notice of Hearing which is challenged both before the tribunal and on judicial review ?
Like virtually all ethical issues in the practice of law the answer is rarely crystal clear. Counsel so retained can have the most impeccable reputation and the most innocent of intentions. However, that is not the test and issue in these circumstances. The appearance of fairness and impartiality on the part of the tribunal is of fundamental importance.
The appearance that counsel may be vigorously defending their actions as distinct from the legality of the tribunal's decision is one which ought to be avoided when ever possible. In cases where the Attorney General has elected to intervene care must be taken by them to carefully evaluate their support or non-support for the tribunal's position. Arguably, the Attorney General may be acting contrary to his or duty to uphold the law under the Ministry of the Attorney General Act and the constitution by lending even tacit support to an administrative body under their jurisdiction which could be found to be shielding their decisions and recommendations to him or her from judicial review.
About the Author: Ernest J. Guiste is trial and appellate lawyer in Toronto, Ontario. A significant portion of his work involves representing clients before both administrative tribunals and the courts on employment, human rights and professional/judicial discipline matters. He completed part of his Articles of Clerkship with the Ontario Labour Relations Board. Prior to attending law school, Mr. Guiste worked as an Employment Standards Officer with Ontario's Ministry of Labour and as a Researcher with the Ontario Women's Directorate. He has written for the McGill Daily, The Afro Canadian, Share and Pride News. He holds a Bachelor of Arts Degree in Industrial Relations from McGill University and a Bachelor of Laws from the University of Windsor.