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Active adjudication is a series of techniques that the decision maker can use to enhance access to justice and effective participation for self-represented parties. Using active adjudication techniques can cause concern that the decision maker is ‘entering the fray’ and risks becoming an advocate for one of the parties. The quote below from Lord Denning sums up the concern:
“If a judge should himself, conduct the examination of witnesses ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’”.
Jones v. National Coal Board  2 QB 55
Nearly 50 years after the quote from Lord Denning, in 2006, The Statement of Principles for Self-Represented Litigants and Accused Persons was adopted by the Canadian Judicial Council. It contains a number of principles to promote rights of access and equal justice, along with the responsibilities of the court, court administration, government departments and legal counsel.
These principles have been utilized by the Courts in several decisions including Numair v. Numair 2022 ONSC 3449, and A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25.
Active adjudication techniques which can be used by administrative decision makers include:
- pre-hearing information available to a self-represented party;
- explanations of the process during the hearing;
- having the presiding officer summarize the issues in the case at the start of the hearing;
- active listening and paraphrasing;
- decide on the order of the evidence;
- place time limits on the length of direct evidence and questioning;
- conduct the examination in chief of witnesses;
- conduct the questioning of witnesses based on a list of issues provided by the self-represented party; and
- ask for questions through the chair (chair re-frames inappropriate questions).
Using active adjudication techniques requires considerable advance preparation for the tribunal administration and presiding officer. In addition, it is recommended that the tribunal administration have resources available to explain that the tribunal uses active adjudication techniques as part of the hearing management. It is important for the presiding officer to:
- set the tone and mode of the hearing early;
- explain the adjudicators role and obtain ‘buy in’;
- confirm the process that will be used in the hearing;
- include opportunities for the self-represented party to clarify and obtain procedural guidance; and
- obtain the parties consent throughout.
What is notable in the two cases cited above is that the judge said they were using active adjudication techniques and then specifically listed the steps that were taken to make a clear procedural record of exactly what this entailed.
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We recommend that you review your enabling legislation and the common law regarding a tribunal’s power to control its own process to establish the authority to use active adjudication techniques. If you have a procedural manual this would be a good place to explain the type of active adjudication techniques your tribunal will use. One example can be found in the Social Security Tribunal Rule of Procedure SOR/2022-156.
How can your tribunal use active adjudication to improve access to justice for self-represented parties?
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