Law Times

Law Times • June 4, 2012 Benchers worried about changes to adjudicator code Proposed amendments related to conflicts of interest among the key concerns NEWS BY KENDYL SEBESTA Law Times T too confusing and broad. "The proposed changes to the code he Law Society of Upper Canada has proposed several revisions to its adjudicator code of conduct that some benchers suggest are would not only apply to bencher adjudi- cators but to all adjudicators," tribunals committee chairman Raj Anand said dur- ing Convocation proceedings on May 24. "The changes also address issues related to the post-term responsibilities and con- flicts of interest related to judges who re- tire or adjudicators who leave administra- tive tribunals and later return to similar roles, for example. code of conduct would change to make it apply to all adjudicators equally rather than bencher adjudicators only. It would also decrease the amount of time that must pass before adjudicators can appear before a hearing panel as a representative. Other amendments include modify- Under the revisions, the language of the " ing the language of the code to mirror the Human Rights Code and changes to ad- judicators' involvement in investigations under the code. They also deal with the procedures adjudicators should take to avoid conflicts of interest. But some benchers warned the chang- es were too confusing and could land ad- judicators in situations that may be harm- ful to their careers. " As an adjudicator, I'm not sure what's meant," said Bencher Heather Ross of the provisions related conflicts of interest. "If I'm not to do something, I' to actly it is I'm not to do. Is it I shouldn't be riding a motorcycle with a mo- torcycle gang? I mean, what is it that the com- mittee is directing this paragraph to? I'm not trying to be thick or dif- ficult but I really don't understand. d like to know what ex- said Anand in a jovial response to Ross' motor- cycle scenario. "These rules are spe- It "very well could be," " cifically designed to be vague, 'It would be too difficult to include every single thing an adjudicator should and should not do,' says Raj Anand. to include every single thing an adjudica- tor should and should not do. Generally, if it would tarnish their reputation and go against the rules of their profession, it would be something I think they' " he said. "It would be too difficult vised against. "But I suppose the motorcycle example may be an example," he added. d be ad- of conduct, adjudicators couldn't let their personal or professional activities "under- mine the discharge of their responsibili- ties as law society adjudicators." The previous rules required that "any According to the changes to the code conflict of interest, actual or perceived, arising from an adjudicator' or personal interests and the adjudicator's responsibilities as an adjudicator should be s professional cators at the law society are more akin to judges than to individuals sitting on the tribunals listed in paragraph 15, which are not concerned with governing a profes- sion," Anand noted of the tribunal com- mittee' adjudicators wouldn't be able to represent someone for 12 months rather than the current 24 months. "The committee is of the opinion that adjudi- proved troublesome for benchers included reducing the term of prohibition for adjudi- cators who later seek to represent a licensee or licensee applicant un- der investigation by the law society. Under the changes, resolved in favour of the public interest." Other issues that the concern about a perceived influence over the panel that is not present in the aforementioned boards. However, ad- judicators are not judges. They continue to perform legal work outside of their adjudicative duties. Consequently, the committee proposes changing the term of prohibition in the new paragraphs 16 and 19 from 24 months to 12 months." But several benchers spoke out against s report to Convocation. "There is the change that they feel may lead to more conflicts of interest. Others expressed concerns about additional aspects of the changes to the code of conduct. They include amend- ments that would require adjudicators to suggest possible conflicts of interest or bias aſter accepting an appointment to a panel but prior to hearing the matter. "There seems to be a great deal of dis- cretion leſt to the adjudicator and what I was wondering was if you're a member of a seized panel and that hearing has been going on for some time, No. 1, if you do withdraw, are you leſt with a two-member panel?" asked Bencher Judith Potter. "And No. 2, if you don't withdraw, should the hearing panel know about this because what if they object to you staying on the panel and you refuse to withdraw?" Despite the concerns, Anand said the changes aren't exhaustive and noted the aim is to provide guidelines to adjudica- tors rather than specific instructions. "These are things we can certainly take into consideration," he said. "We couldn't create an exhaustive list cators already assigned to a panel to inform the law society treasurer of a complaint. They would then have to remove them- selves from the panel prior to a hearing or must allow the treasurer to determine if they should withdraw if it has already begun. The concerns weren't enough to derail Other changes include requiring adjudi- " but we did feel the code needed to be updated. It was our hope that the chang- es would address the redundancies we found and update the language. PAGE 5 the changes to the code of conduct. A mo- tion to approve them was carried during Convocation proceedings on May 24. LT for Classes Starting in September 2012 Part-time, Executive LLM program for corporate counsel and practising lawyers Information Sessions Wednesday, December 7, 2011 5:30 - 7:00 pm Friday, December 9, 2011 8:00 - 9:30 am U of T Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto No registration required. Please feel free to drop in anytime during these hours. Taught by U of T Faculty of Law professors, together with top international faculty from INSEAD Business School, NYU School of Law, and Rotman School of Management. For more information and to apply: http://www.law.utoronto.ca/programs/GPLLM.html http://www.law.utoronto.ca/programs/GPLLM.html For more information and to apply: Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_LT_June4_12.indd 1 www.lawtimesnews.com 12-05-29 4:18 PM

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