Stranger in a Strange Land: Advocacy Before Administrative Tribunals
| Author | David Stockwood |
| Pages | 135-151 |
Stranger
in a
Strange
Land:
Advocacy
Before
Administrative
Tribunals
A
lawyer's role
is
everywhere
that
"justice"
is
administered, either
to
individuals
or to
organizations.
In
every
area
of
justice,
he
must
be
ready,
willing,
and
trained
to
act.
It is the job of the
barrister today
to
put his
client's case
not
only
in the
familiar, well-trodden paths
of the
courts where
he has
endless models
to
follow
and
great
traditions
to
guide
him,
but
also
to be
ready
to put his
client's case
in any
forum
where
"judgments"
are to be
rendered.
-
John
T.
Weir, Q.C.
The
above quotation
and the
sub-title
of
this article
are
taken
from
an
excellent lecture
by the
late
Jack
Weir,
Q.C.1
Although
the
paper
was
pub-
lished
in
1971,
most
of
what
he
said then
is
still relevant
and too
often
ignored.
The
purpose
of
this article
is the
same
as
that
of the
Weir lec-
ture:
to
encourage counsel
to
appear before unfamiliar administrative
tribunals
and to
suggest
ways
in
which they
can use
their
advocacy
skills
to the
greatest
effect.2
David
Stockwood,
Stockwoods
LLP,
Toronto.
1
Law
Society
of
Upper
Canada
Special
Lectures
1977
(Toronto:
Richard
De
Boo,
1971).
2
After
completing
the
first
draft
of
this
article,
my
attention
was
drawn
to a
1988
Cana-
dian
Bar
Association
of
Ontario
panel
discussion
on the
same
subject.
The
panel
moderator
was
Patricia
Jackson,
and the
panelists,
in
order
of
appearance,
were
135
David Stockwood, Q.C.*
*
Although
I do
professional discipline defence work, most
of my
time
has
been spent
as a
prosecutor
or
independent legal counsel.
In
those capacities,
I
have
had the
opportunity
to
observe many defence
counsel, both experienced
and
inexperienced. While experience helps,
it
does
not
guarantee
a
good defence. Sound advocacy techniques
and a
sense
of
one's impact
on the
tribunal
are the
keys. Some
of the
follow-
ing
points
may
seem obvious,
but it is
surprising
how
often
those points
are
ignored. Advocacy
is
like
the
game
of
bridge.
Few
cases
are won by
brilliant moves; many
are
lost
by
basic mistakes.
To
illustrate
the
points,
I
shall
use the
example
of a
discipline hear-
ing
involving
a
health
professional. Such hearings
are
quite
"courtlike,"
yet
the
members
are
non-lawyers. Thus they serve
as
useful models
to
demonstrate
the
similarities
and
differences
of
administrative practice.
I
shall assume that
you are
defending,
as
that
is the
most likely scenario.
Overview
Why do it?
Administrative tribunals have
a
tremendous impact
on all our
lives.
They deal with
the
environment,
the
economy,
the way we
earn
our
livelihood,
and a
host
of
other issues.
In
doing
so,
these tribunals must
assess conflicting interests.
To be
successful, those
who
seek
to
advance
their interests must persuade tribunals,
and
persuasion
is the
natural
province
of the
advocate. Advocates should
play
a key
role
in
administra-
tive
proceedings. Despite this need, many counsel
shy
away
from
administrative work. Strangely enough,
the
things that initially deter
them become
the
very
things that attract
them
if
they persist.
Close
encounters
Some
tribunals deal with broad policy issues. Grappling with these issues
can be
frustrating;
one
senior counsel described
his
experience before
a
tribunal
as
"trying
to
nail
jelly
to a
wall." Yet,
it is
these
very
policy issues
that
can
take
an
advocate beyond
the
confines
of
traditional litigation.
Mary
Eberts,
John
Laskin,
and Ian
Binnie.
Many
of
their
ideas
coincided with
my
own,
but
there
also
were
several
other interesting points, some
of
which
I
have
worked
into this article.
ETHOS,
PATHOS,
AND
Locos
i36
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