Law Times

Law TiMes • March 9, 2009 NEWS PAGE 5 procedure for hearing panels that include a provision deeming a party to have admitted facts if they fail to respond. "They are designed to refl ect practices that currently do exist but are not refl ected in our rules of procedure," tribunals com- mittee chairman Mark Sandler told March Convocation, while outlining the new rules. "They're intended to refl ect the more moderate era of tribu- nal adjudication, so they pick up on language contained both in the Statutory Powers Procedure Act and in draft or model rules that have been produced by the Society of Ontario Adjudicators and Regulators and the Ontario Rules of Civil Procedure." Possibly the two most signifi - cant changes, said Sandler, re- late to admissions. Rule 20 now states that any party to a proceed- ing can request another party to admit the truth of facts or au- thenticity of documents, and if there is no response the party will be deemed to have admitted the truth of facts, noted Sandler. Equally signifi cant, he add- ed, if a party has not attended the proceedings, they will be deemed to have admitted the truth of facts or the authenticity of documents for the purposes of the proceeding, he added. "That is very signifi cant be- cause at present we have no mechanism to address the situ- ation where the licensee who has been charged, for example, with multiple counts of mort- gage fraud has chosen not to en- gage with the society in any way whatsoever and does not come to the hearing," said Sandler. "A discipline panel, as many of you know, must then go through the entire proof of the matter as if the licensee were present," he added. Sandler said the new rules in- clude a "built-in protection" for the licensee to ensure that this re- quest to admit is not overused or misused, as the panel is permitted to withdraw an admission. A "proceedings management conference" has been created in LSUC unveils new rules of practice and procedure T BY ROBERT TODD Law Times he Law Society of Up- per Canada has unveiled new rules of practice and place of hearing management tribunals, said Sandler. Also, un- der "very narrow circumstances" — largely on consent motion matters — the tribunals offi ce can adjourn a case, he said. Sandler said pre-hearing con- ferences "fi gure quite promi- nently" in the new rules. A pre-hearing conference is now mandatory "whenever any party estimates that the hearing on merits of the proceeding will be longer than two days," he said. The committee chair acknowl- edged, however, that not all of the committee members are on board with a pair of new rules. While no changes were made to costs rules, Bencher Tom Heintzman objects to the rules' asymmetrical approach. Under the current regime, noted Sandler, costs can only be awarded against the society in circumstances where proceed- ings are unwarranted, when the society has taken measures to unreasonably incur expenses. Heintzman, whose written opinion on the issue was read to Convocation by Sandler, said, "It treats the law society more favourably than the member. I could see a rule that favours the member — that could be justi- fi ed since the law society is by far the stronger economic party to the proceedings and the one which derives its resources from the membership at large, while the member pays his costs from his or her own resources." But Sandler said the "asym- metrical" approach to costs is used in other disciplinary pro- ceedings and also makes policy sense. Law societies in Saskatch- ewan, Manitoba, and Alberta have no rule at all for members to seek costs, he said. Various other professional disciplinary bodies use the same policy as the LSUC, he added. "If we were to have costs fol- low the event for every case the society is unsuccessful in full or in part, that is a very signifi cant inhibition against the appropri- ate investigation and in some in- stances prosecution of discipline cases," he said. Bencher Jennifer Halajian, a member of the tribunals com- mittee, disagreed with the new request to admit provision. "I know we have a mandate Features: • Selected sections of the • • Part V of the • • 2009 and regulations • Landlord and Tenant Board Rules of Practice • Landlord and Tenant Board Interpretation Guidelines • Landlord and Tenant Board Applications, Forms and Notices Reduce your research time with these useful benefits: • concise Table of Contents with detailed Table for each Act • a thorough subject index • legislative history for each provision • bleed tabs to help you locate exactly what you need ORDER your copy today Perfectbound • 570 pp. • March 2009 Standing order $49 • P/C 0826140000 Current edition only $59 • P/C 0826010000 Multiple copy discounts available • ISSN 1195-3136 and to protect the public, but we also have obligations to our members to ensure that they're treated fair," she said. "It may not be a right to practise law, but you do have a right to not have it taken away from you arbitrarily. And that is what this rule does." Sandler said the purpose for the request to admit process is to address the situation where the licensee does not engage and ob- viate the need for a lengthy hear- ing, and to "facilitate, again, the narrowing of the issues." Convocation defeated a mo- tion by Halajian to quash the rule based on her objections. The LSUC's consultation on the new rules included in- put from defence counsel who regularly appear on behalf of lawyers at tribunals, and a wid- er call for responses from the profession at large. Toronto defence lawyer Bill Trudell, whose practice focuses largely on law society discipline cases, said he agrees in princi- ple with the LSUC's attempts to improve the system. But he suggested many of the provi- sions seem tilted against lawyers facing discipline. "Every type of administra- tive tribunal these days is trying to manage the system better," he says in an interview. "But also there's the other basic principle, and that is, you've got to be fair about it. The fact that we self-reg- ulate doesn't mean that we give up making sure that it's done fairly. "The problem with self-regu- lation is we want to be harder on ourselves, so that we can say to the public and the government, 'You don't need to get involved in this because we're tough.'" Adds Trudell: "If you're going to take that position . . . then The problem with self-regulation is we want to be harder on ourselves, so that we can say to the public and the government. . . . 'You don't need to get involved in this because we're tough.' you have to make sure that the protections are there, and from the very beginning." Meanwhile, Sandler noted that the committee's work is not done, as new rules are yet to be adopted for appeal hearings and summary orders. LT around $100,000. Law society benchers also will forego their Convocation cancellation saves $100,000 T BY ROBERT TODD Law Times he Law Society of Upper Canada has cancelled March Convocation as part of a "fi scal restraint" measure that will save March committee meetings as part of the move. Law society communications director Roy Thomas says the cancellation was decided last November during budget deliberations for 2009. "One of the things that was considered was, can we go through a year with maybe one less Convocation meeting and the accompanying committee day meeting?" he says. Thomas says the cancellation will not interfere LT with the law society's work agenda. "The feeling was that since we started talk- ing about this in November, that there was ample time to plan for particularly the January and February and April Convocations that we could deal with what we had to deal with so that things were rescheduled and we actually went about this in an organized way," he says. "So no, I don't think that we're going to miss anything." Treasurer Derry Millar told January Convo- cation that, "Further taking into account the law society's budget and the current uncertain eco- nomic environment, we decided that it would be prudent and effi cient to cancel these meet- ings. . . . The February and April meetings will proceed as scheduled." Ontario Landlord & Tenant Legislation 2009 This updated consolidation contains all the relevant legislation regulating Ontario landlords and tenants including the , and regulations. For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com Ontario Landlord & Tenant (LT 1-4x3).indd 1 3/4/09 1:33:16 PM LT0309 Consulting Editor: Robert A. Maxwell Residential Tenancies Act, 2006 Business H Commercial Tenancies Act olidays Act Residential Tenancies Act, 2006 Residential Complex Mortgages Act Retail Bankruptcy and Insolvency Act, Construction Lien Act Sales Representation Act

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