The business case for civility in the hearing room, Part 1

A recent federal report develops the business case for civility in the workplace. A summary of that report is available here. And a recent report out of the US has highlighted the health costs of incivility.

This led me to thinking about the business case for civility in the hearing room. I find that, generally, there is not a lot of incivility at a hearing. A hearing is a very structured process, with defined roles for all participants. Participants are generally either very nervous (witnesses) or mindful of their roles (representatives and adjudicators). However, incivility can arise either in the hearing room or in the corridors.

In my view, it is the adjudicator that sets the tone for a hearing. And it is the adjudicator who is responsible for keeping the hearing on track and respectful. A disrespectful hearing is generally an inefficient hearing. Time spent refereeing spats between representatives is time that could be better spent hearing evidence.

And what of the adjudicator’s conduct? Disrespectful conduct by an adjudicator can lead to a finding of apprehension of bias, as illustrated by a recent Supreme Court of Canada decision.

In Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), a judge was found to have been biased based on his behaviour in the hearing room.

After making a ruling (without submissions from counsel) the judge shut down the attempts of Yukon’s counsel to raise concerns and draw his attention to statutory provisions. The judge accused counsel of playing games. The Court of Appeal, after reviewing the transcript, concluded that “[i]t [did] not appear that the judge’s questions were genuinely directed at obtaining information; rather the impression left by the transcript is that the judge was, in effect, taunting counsel.”

At another point in the trial, the Court of Appeal found that the trial judge’s criticism that counsel’s submissions lacked conviction and sincerity, was not justified. The court was also concerned that the trial judge’s treatment of counsel “with a lack of respect on many occasions during the trial” contributed to the conclusion that there was a reasonable apprehension of bias.

The judge also warned counsel that his attempt to have a witness testify by affidavit due to health issues could be viewed as an attempt to cause delay which could result in an order for costs against him personally. The Court of Appeal held that in accusing counsel of engaging in delaying tactics and threatening him with a personal order for costs, the trial judge’s conduct was also suggestive of bias. In the end, Yukon decided not to call the witness, and the judge termed this “bad faith” in his costs award.

The SCC noted that appellate courts are reluctant to intervene on the grounds that a trial judge’s conduct crossed the line from permissibly managing the trial to improperly interfering with the case. It stated that reprimands of counsel may be appropriate to ensure orderly and efficient proceedings. The court referred the Canadian Judicial Council’s Ethical Principles for Judges:

… [u]njustified reprimands of counsel, insulting and improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate and impatient behaviour may destroy the appearance of impartiality… . A fine balance is to be drawn by judges who are expected both to conduct the process effectively and avoid creating in the mind of a reasonable, fair minded and informed person any impression of a lack of impartiality.

The court concluded that although the threshold for a reasonable apprehension of bias is high, the “fine balance” was inappropriately tipped in this case and found that the judge’s actions and comments, taken together and viewed in context, would lead a reasonable and informed person to see his conduct as giving rise to a reasonable apprehension of bias.

The business case for civility by the adjudicator is clear – crossing the line can result in a finding of apprehension of bias and a repeat of a hearing (with a different adjudicator). For incivility that falls short of bias, the costs are more intangible and will depend on who bears the brunt of the disrespect of an adjudicator. For people with no or limited experience of a tribunal (witnesses and observers) it may well affect their respect for and faith in the tribunal itself. For representatives, it may affect their trust in the adjudicator. Since representatives talk to each other about adjudicators, that lack of trust can spread within the representatives’ community.

The business case for civility on the part of other participants in the hearing is more difficult to measure. That will be the subject of Part 2 to come.

Calendar

Circles mark dates which Ian is  available based on the last update of the calendar.

Publications

Columns published on slaw.ca

"Chapter 22: Unions and Collective Agreements", in Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th edition, 2009 and 5th edition, 2013.

“Non-consensual expedited processes: the intersection of fairness and expediency”, Lancaster House.

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