Adjudicator Code of Conduct
PART 1 Introduction
PART 2 Conflict of Interest and Reasonable Apprehension of Bias
V. Appropriate Conduct
VI. Procedural Protocol
B. After Accepting an Appointment to a Panel but Prior to Hearing the Matter
C. Arising During a Proceeding
D. Adjudicator under Investigation
PART 3 Adjudicator Responsibilities
VII. Conduct During the Proceeding
VIII. Decision-Making Responsibilities
IX. Responsibilities to Other Panelists
X. Responsibilities when Sitting as a Panel
XI. Responsibilities to the Tribunal
XII. Post-Term Responsibilities
PART 1 INTRODUCTION
1. The Law Society Tribunal Adjudicator Code of Conduct (“Code”) is a guide to the conduct and the professional and ethical responsibilities of the Law Society Tribunal’s adjudicators. It is not intended as a legislative directive. Although there is some mandatory language in it, this is reflective of Convocation policies. The balance of the provisions is expressed in permissive language, but the purpose of the guide is to reflect accepted principles of behaviour. Tribunal adjudicators should familiarize themselves with the content of this document in addition to the legislation, rules, practice directions and procedures established to ensure that the Law Society Tribunal’s processes are consistent, transparent and fair.
2. In the Code,
Adjudicator includes all members of the Hearing and Appeal Divisions, whether a bencher, a licensee, a person approved by the Attorney General of Ontario or a temporary panelist;
Appeal Division means the Law Society Tribunal Appeal Division established under Part II of the Law Society Act;
Chair means the person appointed as Chair of the Tribunal under subsection 49.20.2 of Part II of the Law Society Act.
Chair of the Panel means the individual member of a panel designated to ensure that a proceeding is conducted in an orderly fashion;
Final disposition of a matter occurs when the panel assigned to hear and decide a matter on the merits renders a final decision, order and, where reasons are required or given, reasons;
Hearing Division means the Law Society Tribunal Hearing Division established under Part II of the Law Society Act;
Investigation means an investigation pursuant to s. 49.3 of the Law Society Act of which the adjudicator has received written notice from the Law Society;
Panel means a member or group of members of the Hearing Division or Appeal Division assigned to hear and determine a matter pursuant to Part II of the Law Society Act;
Proceeding means a proceeding under the Law Society Act that commences with the service of an originating process;
Tribunal means the Law Society Tribunal established under Part II of the Law Society Act, to hear and determine matters in whole or in part.
Vice-Chair of the Appeal Division means the person appointed under subsection 49.30.1 of Part II of the Law Society Act;
Vice-Chair of the Hearing Division means the person appointed under subsection 49.22.1 of Part II of the Law Society Act;
3. The Code applies to all Tribunal adjudicators. The Code applies to the following areas of adjudicator responsibility: the conduct of proceeding management conferences, pre-hearing conferences, hearings, appeal management conferences and appeals and timely decision-making and reason writing, as well as the institutional responsibilities of adjudicators to colleagues, the Chair, Tribunal staff, the Vice-Chairs of the Hearing Division and Appeal Division, and to the Tribunal.
4. Adjudicators are responsible for conducting themselves in a professional and ethical manner. The Code is a guide. It cannot anticipate all possible fact situations in which adjudicators may be called upon to exercise judgment about appropriate conduct.
5. The Code governs the conduct of adjudicators from the beginning of the term of membership on, or appointment to, the Hearing Division or Appeal Division and includes continuing responsibilities after completion of the term of membership. The Code also governs temporary panelists appointed to the Hearing Division or Appeal Division pursuant to the Law Society Act from the time of the panelist’s appointment and includes continuing responsibilities after the final disposition of the matter.
PART 2 CONFLICT OF INTEREST AND REASONABLE APPREHENSION OF BIAS
6. A conflict of interest is any interest, relationship, association or activity that is incompatible with an adjudicator’s obligations to the Tribunal. Conflicts may be actual or perceived. In this Code, ‘conflict of interest’ includes both pecuniary and non-pecuniary conflicts.
7. A pecuniary conflict of interest will arise where an adjudicator has a financial interest that may be affected by the resolution or treatment of a matter before the Tribunal. The financial interest may be that of the adjudicator or of a relative or other person with whom the adjudicator has a relationship.
8. A non-pecuniary conflict of interest will arise where an adjudicator has a non-financial interest, relationship or association, or is involved in an activity, that is incompatible with an adjudicator’s responsibilities as an impartial decision-maker. The interests, relationships or activities of a relative or associate may raise a potential conflict for adjudicators if they will be affected by the determinations of the Tribunal.
9. Bias exists where considerations extraneous to the evidence, law or submissions applicable to the matter before the Tribunal influence an adjudicator’s ability to make a neutral and impartial decision. A reasonable apprehension of bias arising from an adjudicator’s conduct or conflict of interest may be as detrimental to the public interest as actual bias.
10. A significant professional relationship may include, for example, employee/employer, solicitor/client, partnership/association or employee, associate or partner/law firm. Significant professional relationships may also arise outside the workplace as a result of, for example, the volunteer or charitable activities of an adjudicator.
11. A personal relationship may include, for example, a friendship or a spousal relationship.
V. Appropriate Conduct
12. Conflicts of interest and bias, actual or perceived, are incompatible with neutral adjudication. Where the circumstances surrounding a proceeding raise an allegation of conflict of interest or bias on the part of an adjudicator, the test for whether or not the adjudicator should be disqualified from adjudicating the matter is whether or not the facts or procedure could give rise to a reasonable apprehension of conflict of interest or bias in the mind of a reasonable and informed person.
13. Any conflict of interest, actual or perceived, arising from an adjudicator’s professional orpersonal interests and the adjudicator’s responsibilities as an adjudicator should be resolvedin favour of the public interest.
14. Adjudicators should not allow their personal or professional activities to undermine the discharge of their responsibilities as adjudicators.
15. Adjudicators should minimize the likelihood of conflicts arising that may affect their neutrality or give rise to an allegation of bias.
16. Adjudicators are prohibited from representing a licensee or licensee applicant who is the subject of a complaint and/or an investigation by the Law Society, appearing as counsel before the Tribunal and from being retained as professional or legal consultants in the preparation of a matter before the Tribunal or in any matter relating to the work of the Tribunal. Adjudicators are prohibited from engaging in these activities for 12 months following the end of their term as a bencher or their appointment to the Hearing Division or Appeal Division, or after the release of any outstanding decisions, orders or reasons, whichever is later. This does not preclude adjudicators from providing informational advice, without a fee, to licensees or licensee applicants who may be the subject of a complaint and/or an investigation or subject to disciplinary proceedings.
17. Adjudicators should not adjudicate in any proceeding, or participate in Tribunal discussions of any matter, in which they, or a business associate, have a financial interest that is neither remote nor trivial and may be affected by the resolution or treatment of a matter before the Tribunal.
18. Adjudicators should not adjudicate in any proceeding, or participate in Tribunal discussions with respect to any matter, in which a party or the party’s representative appearing before the Tribunal or providing evidence is from their current law firm. A similar prohibition applies where a party or a party’s representative practises in association with the adjudicator.
19. Adjudicators will not normally be eligible to conduct a proceeding involving a party or the party’s representative with whom they were formerly in a significant professional relationship until at least 12 months have elapsed from the termination of the relationship. In some circumstances it may never be appropriate for the adjudicator to conduct a proceeding involving that individual. When evaluating whether the adjudicator’s participation in the proceeding would give rise to a reasonable apprehension of bias, the position of all parties, although not determinative, and the circumstances of the relationship should be carefully considered.
20. Adjudicators will not normally be eligible to conduct a proceeding involving a party or a party’s representative with whom they have a personal relationship. When evaluating whether the adjudicator’s participation in the proceeding would give rise to a reasonable apprehension of bias, the position of all parties, although not determinative, and the circumstances of the relationship should be carefully considered.
21. Adjudicators should not generally adjudicate in any proceeding in which they, a relative or a business associate, have had any prior involvement in the proceeding.
22. Adjudicators should not adjudicate in any proceeding in which the outcome may have an impact on any other legal proceeding in which they have a significant personal interest.
23. Adjudicators should not take improper advantage of information obtained through official Tribunal duties.
24. It is the responsibility of each adjudicator to consider any circumstance that might suggest a possible conflict of interest or bias in respect of any of the adjudicator’s responsibilities. It may be that only the adjudicator is in a position to recognize a possible conflict or issue of bias.
25. As soon as grounds for a potential conflict of interest or allegation of bias are identified, an adjudicator should take appropriate steps as outlined in this Code. The particular procedure to follow will depend on whether the potential conflict of interest or bias is identified after accepting an appointment to a panel, but prior to hearing the matter, or is identified during a proceeding.
26. Where an adjudicator is under investigation or the adjudicator is the subject of a Law Society proceeding, the adjudicator should follow the procedure articulated in the Code.
27. An adjudicator who is uncertain about the appropriate action to take should consult with the Chair of the Tribunal or, in his or her absence, the Vice-Chair of the Hearing Division or Appeal Division.
28. Where a party has made submissions challenging the neutrality of an adjudicator, the panel should provide reasons, in most cases in writing, for its decision on the issue.
B. After Accepting an Appointment to a Panel but Prior to Hearing the Matter
29. Where an adjudicator becomes aware of circumstances that suggest a possible conflict of interest or bias on the part of the adjudicator after being assigned to hear a matter, but prior to the commencement of the hearing, the adjudicator should inform the Chair, or in his or her absence, a Vice-Chair of the Hearing Division or Appeal Division, immediately. The adjudicator should indicate to the Chair or Vice-Chair that,
- the adjudicator wishes to withdraw from the panel; or
- the adjudicator is aware of circumstances that suggest a possible conflict of interest or bias on the part of the adjudicator but the adjudicator, having given the circumstances careful consideration, has determined that the adjudicator is able to proceed with hearing the matter objectively, and will advise the parties on the record at the hearing; and
- the adjudicator consents to the Tribunal Office bringing the matter to the attention of the other panel members.
C. Arising During a Proceeding
30. During a proceeding, the panel shall determine issues of conflict of interest or bias.
31. Where, during a proceeding, an adjudicator becomes aware of circumstances that suggest apossible conflict of interest or bias and the related circumstances may be unknown to the parties, the adjudicator should request the panel to recess the proceedings. The panel should then consider the seriousness of the possible conflict of interest or bias and determine whether,
- the adjudicator should withdraw from the panel; or
- the parties should be informed of the circumstances, submissions heard and a determination on the issue made.
32. Where a panel hears submissions from the parties on the issue of conflict of interest or bias, the panel should make a determination of the issue before continuing with the proceeding.
33. Where an allegation of conflict of interest or bias is raised about an adjudicator by a party,
- the adjudicator may immediately withdraw from the panel if appropriate, given the nature and the circumstances of the alleged conflict of interest or bias; or
- the panel may hear submissions from the parties with respect to the alleged conflict of interest or bias and make a determination on the issue.
D. Adjudicator Under Investigation
34. To preserve the integrity of the Tribunal an adjudicator, subject to the provisions of paragraphs 35 and 36, should not sit as an adjudicator once a complaint has been instructed for investigation pursuant to s. 49.3 of the Law Society Act or a proceeding has been authorized by the Proceedings Authorization Committee or the adjudicator is the subject of an ongoing Law Society proceeding following the investigation.
35. Once a complaint has been instructed for investigation pursuant to s. 49.3 of the Law Society Act, an adjudicator, subject to the discretion of the Chair, should decline to be scheduled to adjudicate when the Tribunal Office canvasses the adjudicator’s availability. It is left to the discretion of each adjudicator to determine whether to disclose the reason for declining to be scheduled to adjudicate.
36. If an adjudicator is already assigned to a panel and a complaint has been instructed for investigation pursuant to s. 49.3 of the Law Society Act, the adjudicator should advise the Chair and, subject to the discretion of the Chair:
Prior to commencement of hearing:
Where the hearing has not yet commenced, the adjudicator should inform the Tribunal Office immediately that the adjudicator wishes to withdraw from the panel.
After the commencement of hearing
Where an adjudicator is a member of a seized panel, the adjudicator should consider the issue and determine whether the adjudicator should withdraw from the panel.
37. It is left to the discretion of each adjudicator to determine whether to disclose the reason fordeclining to adjudicate or withdrawing from the panel.
PART 3 ADJUDICATOR RESPONSIBILITIES
VII.Conduct During the Proceeding
38. Adjudicators are expected to conduct both themselves and the proceedings in a judicial manner. To this end, adjudicators should,
- approach every proceeding with an open mind with respect to every issue and avoid comments or conduct that could cause any person to think otherwise;
- listen carefully and respectfully to the views and submissions of the parties and their representatives; and
- show respect for the parties, their representatives, witnesses, their panel colleagues,and for the proceeding process itself, through their demeanour, timeliness, dress and conduct throughout the proceeding.
39. Other than for scheduling a further hearing of the matter before the panel, adjudicators should refrain from using personal communication devices during a proceeding.
40. Adjudicators should familiarize themselves with constitutional requirements and legislation, such as the Canadian Charter of Rights and Freedom and the Ontario Human Rights Code, to ensure that they conform to relevant requirements. In addition, they should also be sensitive to issues of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family statusor disability.
41. Adjudicators should avoid undue interruption and interference in the examination and cross-examination of witnesses. To this end, adjudicators should be and appear to be objective and should avoid the appearance of advocating on behalf of a party to the proceeding.
42. Adjudicators should request submissions on questions of procedure or law from all parties or their representatives. Where all parties or their representatives are not in attendance before the Tribunal, the request should be made of all parties through the Tribunal Office.
43. When attempting to ensure that unrepresented parties are not procedurally disadvantaged at a proceeding, adjudicators should do so in a manner that is not inconsistent with their role as impartial arbiters.
44. Communicating off the record with parties, their representatives or witnesses in respect of proceedings gives rise to an apprehension of bias. As a result, adjudicators should not, in respect of proceedings and before a decision is released,
- communicate with those persons, except in the presence of all parties and their representatives or with the consent of the parties;
- correspond with parties, or their representatives, by any means (email, facsimile, text message, etc.), except through the Tribunal Office. It is the responsibility of the Tribunal Office to forward the adjudicators’ communications to all parties and their representatives; and
- when attending social occasions, discuss any matter in respect of the proceedings.
45. Hearing rooms and areas in which adjudicators convene may be accessible to others. It is essential that adjudicators not leave confidential materials, including their own notes taken during the proceeding, in plain view where others may have access to them.
VIII. Decision-Making Responsibilities
46. Adjudicators should make decisions on the merits and justice of the matter, based on the law and the evidence.
47. Adjudicators should apply the law to the evidence in good faith and to the best of their ability. The prospect of disapproval from any person, institution, or community must not deter adjudicators from making the decision that they believe is correct based on the law and the evidence.
48. Adjudicators should endeavour to ensure that decisions are rendered in a timely manner. Where written reasons are to be given, adjudicators should strive to ensure that they are prepared with reasonable promptness having regard to all the circumstances including, to the need to protect the public interest, as well as to the rights of the licensee, the urgency of the matter, the length of the proceeding and its complexity.
IX. Responsibilities To Other Panelists
49. Adjudicators should, through their conduct, promote civility among adjudicators and in the hearing process and be respectful of the views and opinions of colleagues.
X. Responsibilities When Sitting as a Panel
50. Adjudicators should make themselves available on a timely basis for discussions with their panel colleagues on the conduct of the proceeding and on the substance of the determinations to be made. When a draft decision is provided for comments, adjudicators should respond at the earliest opportunity. Adjudicators should follow the procedure for written reasons as determined by the Chair.
51. Adjudicators should consider carefully panel colleagues’ reasons where there is a difference in their proposed determinations on an interim or final decision. However, adjudicators should not abandon strongly held views on an issue of substance, either for the sake of panel unanimity or in exchange for agreement on any other point.
52. In circumstances where adjudicators are unable to agree with the proposed decision of a majority of the panel after discussion and careful consideration, they should endeavour to ensure that a reasoned dissent is rendered with reasonable promptness.
XI. Responsibilities To the Tribunal
53. Adjudicators should comply with the policies and procedures established for the Tribunal.
54. Where adjudicators have questions about the appropriateness of any hearing or appeal policy or procedure, they may consult with the Chair or, in his her absence, with the Vice-Chair of the Hearing Division or Appeal Division.
55. When adjudicators become aware of colleagues’ conduct that may threaten the integrity of the Tribunal or its processes, they have a duty to advise the Chair of the Tribunal or, in his or her absence, the Vice-Chair of the Hearing Division or Appeal Division of the circumstances as soon as reasonably practicable.
56. Adjudicators should refrain from publicly taking a partisan position in respect of individual matters under consideration in a proceeding before the Tribunal.
57. Adjudicators should not make public comment, orally or in writing, on any aspect of a matter before them.
58. Adjudicators should exercise caution before publicly commenting on the decisions, procedures or structures of the Tribunal, a decision of colleagues, or on the manner in which other colleagues have conducted themselves during a proceeding.
59. It is generally inappropriate for adjudicators to communicate with the media regarding a decision of the Tribunal or the Tribunal’s conduct of a proceeding. All inquiries from the media should be referred to the Tribunal Communication Officer.
60. Adjudicators shall meet the adjudicator education program requirements of the Tribunal.
61. Adjudicators should not divulge confidential information unless legally required to do so or appropriately authorized to release the information.
62. Adjudicators should not engage in conduct that exploits their position of authority.
63. No adjudicator or bencher or elected paralegal member of the Paralegal Standing Committee shall provide written or oral evidence as a character witness in support of a party before either the Hearing Division or Appeal Division unless the party demonstrates that the inability to put such evidence before the Panel would unfairly prejudice the party.
XII. Post-Term Responsibilities
64. Adjudicators have an on-going duty of confidentiality after the expiry of their membership in, or appointment to, the Hearing Division or Appeal Division.
65. Adjudicators whose term of appointment has expired, but who have continuing responsibilities by virtue of on-going proceedings in which they participated as adjudicators continue to be guided by this Code.