Canada: "I'm Not A Potted Plant"

After receiving criticism for making objections to questions asked of his client during an investigation by the Joint Committee of the United States House and Senate in 1987, American defence lawyer, Brendan Sullivan, famously retorted "I'm not a potted plant. I'm here as the lawyer. That's my job."

Mr. Sullivan's words are often quoted and stand true to this day. Counsel must be prepared to make objections during regulatory investigations.

Evidentiary standard for administrative proceedings

No single evidentiary standard applies to all administrative proceedings. Strict rules of evidence do not apply either. Statutes and regulations may proscribe standards for evidence in administrative proceedings.¹ If there are no statutory standards, administrative bodies generally adhere to their own standards (if any). Broad discretion tends to be afforded to administrative bodies. Administrative bodies are not bound by precedents and may admit evidence that would not otherwise be admitted in court, such as hearsay² and opinion evidence.³

Notwithstanding that standards of evidence may be rudimentary and the forum may be relaxed, at all times parties affected by an administrative decision are entitled to the common law rules of natural justice and procedural fairness. To protect the interests of the client, there will be instances during administrative investigations or hearings when counsel must object, or interject to ensure that natural justice and procedural fairness standards are respected.

Procedural fairness

Procedural fairness includes the right to be heard (audi alteram partem), which is the right for a party to know the case against it, make representations to other parties and make representations to the decision maker. The scope of the right to be heard is context specific, depending on the nature of the investigation and the severity of consequences to the party. Some courts have suggested that a denial of a right to be heard at the investigative stage can be subject to judicial review,⁴ while others suggest that there will be more opportunities to exercise a right to be heard given the further steps in the process.⁵ Regardless of whether a denial of fairness could be subject to judicial review, it must be contested immediately. If an investigator asks questions that are not relevant to the issues being considered, or questions that are outside the scope of the investigation, counsel should object. Otherwise, at a later stage of the proceedings the party may be deemed to have accepted these actions or to waive their right to object.⁶

Sufficient notice must be provided for a party to be aware of the interests at stake and have adequate opportunity to respond.

Procedural fairness also includes the right to an unbiased decision maker (nemo judex). The investigator should not fulfill the roles of both investigator and decision maker as this may give the apprehension of bias.⁷ Similar to the objections under a right to be heard, counsel should also object to any prejudicial questions asked or statements made by the investigators.

For example, if an investigator asks a party questions regarding past misconduct that occurred prior to the time period of the investigation, or makes irrelevant inflammatory statements in an attempt to coerce a confession, objections should be made on the record. If objections are made on the record, and counsel explicitly identifies the basis for the objections, it is more likely that the appeal panel will later respond favourably.

Conclusion

In conclusion, if you received a letter from the insurance regulator and if an investigation has been initiated against you, ensure that you retain counsel to contest investigative processes that are unfair or prejudicial to you. While you and your counsel should not purposefully hinder the investigation, you must speak up if you are denied procedural fairness. Participate and ensure that appropriate objections are made. In the course of an administrative investigation or hearing, there is no room for potted plants.

Footnotes

1. For example, the standards of evidence for Ontario tribunals are proscribed by the Statutory Powers Procedure Act, RSA 1990, c. S.22.

2. Murray v Veterinary Medical Assn. (Saskatchewan),2011 SKCA 1 at para 26.

3. Alberta (Workers' Compensation Board) v Alberta (Workers' Compensation Board Appeals Commission), 2005 ABCA 276 at para 67.

4. Swanson v Institute of Chartered Accountants (Professional Conduct Committee), 2007 SKQB 480 at para 26.

5. Irvine v Canada (Restrictive Trade Practices Commission), [1987] 1 SCR 181 at para 87.

6. Lehman Cohort Global Group Inc., Re, 2011 ONSEC 8 at para 26.

7. Aylward v McMaster University, [1991] OJ 230, 25 ACWS (3d) 656 at para 39.

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