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21 views14 pages

Al4 14

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lostbilla66
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Administrative Law: Principles and Advocacy, 4th Edition

CHAPTER 14
Tribunal Decision-Making Procedures

Emond
Copyright Montgomery
© 2020 Publications
Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 2

Overview of the Decision-Making


Process
In administrative agencies, decision-makers:
1.Identify the issues to be settled

2.Obtain relevant information from the person who


will be directly affected by the decision
3.Apply agency’s policies, guidelines, or criteria to
the facts
4.Consult others whose interests may be affected

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 3

Tribunals

Following the hearing, the adjudicator:


• identifies issue(s) raised by parties in the course
of the hearing
• reviews and weighs evidence presented

• reviews the arguments of the parties

• makes findings of fact based on the evidence

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 4

Tribunals

Following the hearing (cont’d):


• determines law/policies/guidelines that apply to
the facts
• applies law, policies, and guidelines to the facts

• writes the decision and reasons for the decision

Tribunal may inform parties of decision


immediately after hearing or may reserve decision
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 5

Rules of Consensus and Dissent

If a case is decided by a panel, there must be a


minimum level of consensus on the decision
• If one or more members disagree with majority,
most tribunals allow minority to write a dissent

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 6

Rules of Consensus and Dissent


(cont’d)
If the panel has an even number of members and
there is a tie, there are three possible solutions:
• Governing statute may require a unanimous
decision
• Governing statute may provide for tie-breaking
vote
• If first two don’t apply, hearing must be held again

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 7

Basis for the Decision

• Tribunals differ from administrative agencies in


kind of information they rely on for decision-
making
Admin agencies—Decision-makers can rely on
any relevant information (many sources and many
forms); however, procedural fairness may require
they disclose basis for their decision and give
persons affected an opportunity to challenge it
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 8

Basis for the Decision (cont’d)

Tribunals—Decision-makers can only base


decisions on evidence obtained during the hearing,
excluding:
• Commonly known facts that are not disputed by
reasonable people
• Specialized knowledge that is inherently
uncontroversial (i.e., immediately/ accurately
demonstrated by available /reliable sources)
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 9

Orders and Remedies


A tribunal’s decision often includes orders or
remedies for specific measures to be taken to:
• compensate for a wrong

• provide relief

Remedies limited to those authorized by tribunal’s


governing statute

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 10

Orders and Remedies (cont’d)


• Remedies that tribunals are authorized to grant
usually reflect purpose of the proceeding (see
feature box in text, “Examples of Remedies That
Tribunals May Grant”)
• Tribunal decisions usually forward-looking rather
than punitive (i.e., usually result in orders to carry
out or cease some activity in future, rather then
require compensation or restitiution)
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 11

Assistance in Making the


Decision or Drafting the Reasons
• Generally, only the tribunal members who heard a
case may make the decision (tribunal counsel or
tribunal’s chair may provide some assistance)
• No one may pressure an adjudicator to decide for
or against a particular party
• If a statute does not require regulator to share
advice from counsel with parties, parties have no
right to be informed
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 12

Requirement to Give Reasons


Reasons for the decision should set out:
• the issue(s) addressed in the case

• a summary of the evidence

• findings of fact based on the relevant evidence

• statement of law and any applicable policies and


guidelines

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 13

Release of the Decision

Dealing with Delay


• Little can be done to speed resolution of a case

• Some governing statutes include requirements for


tribunals to produce decisions within a specified
period of time
• A party can apply to a court to order the tribunal
to make its decision, but this is costly
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 14

Release of the Decision (cont’d)

Communication of the Decision


• Parties receive the decision at the same time
(before it is made available to any other person)
• Dealing with Delay—see Ramsay v Toronto (City)
Commissioners of Police (1988), 66 OR (2d) 99
(Div Ct)

Copyright © 2020 Emond Montgomery Publications. All rights reserved.

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