SOAR 2015 ANNUAL CONFERENCE ACTING IN THE PUBLIC

SOAR 2015 ANNUAL CONFERENCE ACTING IN THE PUBLIC INTERESTS: ACCESS, INNOVATION AND ACCOUNTABILITY Promoting Tribunal Neutrality in an Integrated Regulatory Model Thursday, November 5, 2015 Panel: Mary Condon Vicki White Grace Knakowski & David A. Wright Moderator: Grace Knakowski

Advice from the courts on how best to deal with safeguarding tribunal neutrality in an integrated regulatory model

INDEPENDENCE: SOURCES OF RIGHTS Common Law - interpret the legislation to require independence; falls within bias Section 11(d) of the Charter - “charged with an offence” Section 7 of the Charter - life, liberty, security of the person Section 2(e) of the Canadian Bill of Rights - federal tribunals, determination of rights and obligations Quasi-constitutional provincial statutes - Quebec, Alberta, NOT Ontario Preamble to the Constitution - judges, justices of the peace, NOT tribunals; Ocean Port

OCEAN PORT: NO CONSTITUTIONAL RIGHT TO TRIBUNAL INDEPENDENCE Not appropriate to find in the preamble to the Constitution a general requirement of tribunal independence Tribunals and other administrative decision-makers are part of the executive, implement policy Not appropriate to include constitutional independence

THREE ATTRIBUTES OF JUDICIAL INDEPENDENCE Security of tenure - cannot be removed except for cause to maximum retirement age Financial security - independent commission to establish judicial salaries Administrative independence - control over court administration

EVEN WHEN IT APPLIES, TRIBUNAL INDEPENDENCE NOT THE SAME AS JUDICIAL INDEPENDENCE Matsqui – applied in light of the particular context of the tribunal Régie des alcools – independence does not require tribunal members to have life appointments, but requires fixed-term appointments and not at pleasure; also does not require the same degree of operational/administrative independence

RÉGIE: NEED FOR SEPARATION OF FUNCTIONS Not problematic to have the same institution involved in investigation, prosecution and adjudication Cannot have the same persons involved in earlier processes and adjudication in the same case Prosecuting counsel can never participate in the adjudication process Same directors or individuals cannot decide to have a hearing and then adjudicate the hearing

The Structure of the Ontario Securities Commission and its Tribunal Mary Condon, Commissioner, Ontario Securities Commission SOAR Conference, November 5, 2015

OSC Structure: Governance, Policy-Making and Adjudicative Functions • The OSC is a self-funded Crown corporation, accountable to the Ontario Legislature through the Minister of Finance. § Memorandum of Understanding (MOU) with the Minister of Finance • The OSC must be composed of at least nine Members but not more than 16. § At present, the OSC is composed of 15 Members. Three Members are full-time − the Chair and Vice Chairs − and 12 are part-time. For more information about the role of the OSC’s members see: http: //www. osc. gov. on. ca/en/About_ga_20110608_osc-member-profile. htm § Members have diverse professional and industry experience in areas including, accounting, auditing, finance, investment management, retail and institutional investments, investment banking, insurance, legal and adjudication: For more information about the OSC Members, see: http: //www. osc. gov. on. ca/en/About_members_index. htm § For more information about the OSC’s structure see: http: //www. osc. gov. on. ca/en/About_ourstructure_index. htm • Members discharge their responsibilities through three independent but related roles: § Members of the Board of Directors of the OSC § Regulatory Policy Function § Adjudicative Function MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION SOAR CONFERENCE, NOVEMBER 5, 2015 9

OSC Structure: Governance, Policy-Making and Adjudicative Functions • Board of Directors § As required, and at least quarterly, the Members meet as a Board of Directors • Regular meetings of the full Board and standing committees of the Board (Audit and Finance Committee, Governance and Nominating Committee, and Human Resources and Compensations Committee) § Oversight responsibilities are similar to Boards of public companies • Regulatory Policy Function § Every two weeks, Members meet to deal with regulatory matters, involving policy strategy, regulatory initiatives, rule approvals, and administration of the Securities Act. For more information about the OSC’s Rule making powers see: http: //www. osc. gov. on. ca/documents/en/Securities. Category 0/backgrounder_rule_making. pdf • Adjudicative Function § Members preside over hearings in panels of one or more § Members have oversight of adjudicative processes and procedures § The Adjudicative Committee is a Standing Policy Committee of the OSC with the mandate to evaluate the OSC's adjudicative procedures and practices and recommend improvements. For more information see: http: //www. osc. gov. on. ca/documents/en/About/ga_20070515_osc_adj_com_mandate. pdf MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION SOAR CONFERENCE, NOVEMBER 5, 2015 10

OSC Structure: Governance, Policy-Making and Adjudicative Functions • Types of OSC adjudicative proceedings include: § Enforcement proceedings • Involve allegations of breaches of securities law or conduct contrary to the public interest • May result in sanctions ordered against respondents that include prohibitions or restrictions on participation in the capital markets, administrative penalties and disgorgement § Hearings in connection with take-over bids, issuer bids and other merger and acquisitions transactional issues § Reviews of decisions of self-regulatory organizations (IIROC and MFDA), a recognized exchange (TSX), recognized quotation and trade reporting system, recognized clearing agency or designated trade repository. § Reviews of administrative decisions of the Executive Director or other Commission employee with designated decision-making authority (Directors’ decisions) • For more information about OSC adjudicative proceedings and their procedure see: § OSC Rules of Procedure: http: //www. osc. gov. on. ca/en/Proceedings_rules-procedure_index. htm § Guide to Enforcement Proceedings and FAQs About Hearings: http: //www. osc. gov. on. ca/en/Proceedings_appearing-before-commission_index. htm MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION SOAR CONFERENCE, NOVEMBER 5, 2015 11

OSC Structure: Governance, Policy-Making and Adjudicative Functions • Independence of Members: § Members must be independent of management (with the exception of the Chair and the Vice-Chairs). § All Members must be free from any interest or business or other relationship which could or could reasonably be perceived to materially interfere with the Member’s ability to act with a view to the best interests of the OSC in the achievement of its objectives. § All Members must adhere to the requirements of the OSC’s Code of Conduct and the Public Service of Ontario Act, 2006 with respect to conflicts of interest in relation to the conduct of the affairs of the OSC. § When exercising their independent judgment as a Member, a Director, a member of a Committee, or a member of a tribunal, Members must recuse themselves from any matter that gives rise to conflict of interest concerns, or where there may be a perception of conflict, or a perception that a Member may not bring objective judgment to their consideration of the matter. § Members who perform any investigative duties cannot sit on a hearing panel in respect of that matter. • Framework for ensuring independence for a tribunal in an integrated agency: § OSC Code of Conduct: http: //www. osc. gov. on. ca/documents/en/About/ga_20131101_osc-codeconduct. pdf § Guidelines for Members and Employees Engaging in Adjudication: https: //www. osc. gov. on. ca/documents/en/About/ga_20080401_guide_lines_for_members. pdf § Charter of Governance Roles and Responsibilities: https: //www. osc. gov. on. ca/documents/en/About/ga_20100316_charter_of_governance. pdf MARY CONDON, COMMISSIONER, ONTARIO SECURITIES COMMISSION SOAR CONFERENCE, NOVEMBER 5, 2015 12

SOAR 2015 Annual Conference: Promoting Tribunal Neutrality in an Integrated Regulatory Model Vicki White Co-Director, Legal Office (416) 967 -2600 ext. 433 vwhite@cpso. on. ca College of Physicians and Surgeons of Ontario QUALITY PROFESSIONALS | HEALTHY SYSTEM | PUBLIC TRUST

Governing Legislation: Regulated Health Professions Act/Health Professions Procedural Code Regulatory scheme for 26 health professions Nurses, dentists, pharmacists, physiotherapists, etc. Discipline Committee: independent adjudicative body wholly within College structure College of Physicians and Surgeons of Ontario

Discipline Committee composition 37 members Appointed by Council (Code, s. 38(1)) 11 physician members of Council 8 public members of Council 18 physicians who are not on Council Panel composition Generally, panels of 5 (min. of 3) (Code, s. 38(2)) Must have minimum of 1 physician member of Council and 2 public members (Code, s. 38(2) & (3)) Quorum = 3, including 1 public member (Code, s. 38(5)) College of Physicians and Surgeons of Ontario

Measures to Protect Independence/ Neutrality Discipline panels selected by Chair of Discipline Committee (Code, s. 38(1)) No panel member who participated in investigation (Code, s. 38(4)) No communication by panel members with parties (Code, s. 43) Panel has its own independent legal counsel (Code, s. 44) College of Physicians and Surgeons of Ontario

THE LAW SOCIETY TRIBUNAL DAVID A. WRIGHT, CHAIR GRACE KNAKOWSKI, REGISTRAR & SENIOR COUNSEL

MISSION AND CORE VALUES Who We Are The Law Society Tribunal is an independent adjudicative tribunal within the Law Society of Upper Canada, consisting of staff and appointed adjudicators. Adjudicators include benchers and other lawyer, paralegal and lay appointees. Mission Statement The Law Society Tribunal processes, hears and decides regulatory cases about Ontario lawyers and paralegals in a manner that is fair, just and in the public interest.

MISSION AND CORE VALUES Core Values Fairness: We will be fair and impartial in our processes and proceedings, treating all with respect, courtesy and dignity. Quality: We strive for excellence, acting with dedication and professionalism. We aim for continuous improvement, valuing diverse perspectives. We commit to an atmosphere that enables all to perform at their best. Transparency: We will act in a manner that bears the closest scrutiny. Our decisions, rules, processes and policies will be available to licensees and the public, accessible and easily understandable. Timeliness: We are guided by the importance of timely resolution of all matters. We will schedule hearing and continuation dates expeditiously and complete written reasons promptly.

KEY FEATURES OF THE LAW SOCIETY TRIBUNAL § A tribunal in the model of other administrative tribunals § Leadership: full-time, independent non-bencher Chair and two elected bencher Vice-Chairs § Increased use of appointed non-bencher adjudicators appointed by Convocation § Appointments of new appointed adjudicators to be based on merit, adjudicative experience § Performance evaluation of all adjudicators, including benchers

KEY FEATURES OF THE LAW SOCIETY TRIBUNAL § Benchers are not required to sit as adjudicators; can decide to focus on policy work § Benchers must apply for Tribunal membership; will be appointed to a first term if they agree to the requirements § Performance evaluation of all adjudicators, including benchers, by the Chair and unsatisfactory evaluation will lead to nonreappointment recommendation § Mandatory enhanced training and education

KEY FEATURES OF THE LAW SOCIETY TRIBUNAL § Chair appoints all hearing and appeal panels § By regulation, three-person panels on lawyer hearings, require at least one elected bencher and one lay adjudicator; Chair can depart § Three-person panels on paralegal hearings require one lawyer, one paralegal, one lay adjudicator; Chair can depart § Most appeals heard by five adjudicators – similar composition requirements

DEFINING AN INDEPENDENT IDENTITY § Priority was to work on identity for the Tribunal as a whole o Developing mission statement and core values o Logo and stationery to visually separate the Tribunal from the policy and prosecutorial arms of the Law Society o Independent bilingual website o § www. lawsocietytribunal. ca § www. tribunaldubarreau. ca Enhance the view of the Tribunal as a unified team consisting of staff, appointed and bencher adjudicators

What are some of the challenges, inherent tensions or conflicts that you have noticed may occur in an integrated regulatory model where governance, policy-making and adjudicative functions intersect?

What are some of the practices that your tribunal implements to prevent conflicts that can occur in an integrated regulatory model?

Example of a bias claim flowing from the intersection of enforcement or policy-making and adjudication that triggered a tribunal challenge. What helped your organization to resolve the challenge raised?

Can the co-existence of regulatory governance, policy-making and adjudicative functions within the same organization allow for tribunal neutrality?

Questions & Answers