CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

1.1 General Characteristics of Administrative Proceedings

1.1.3 An Accessible, Informal, Effective Procedure

1.1.3.6 Representation

In administrative law, legal representation or representation by counsel must be separated from representation by any person of one's choice.

In the courts of law, representation by counsel is common and often mandatory. Before administrative tribunals, the principles of natural justice include the right to legal representation. Section 2(e) of the Canadian Bill of Rights  recognizes that any person required to testify before a court or tribunal has the right to retain counsel. In our Act and Regulations the expression "representative" is used only on three occasions (A. 111(b) Section 111(b) of the Act and R. 78(8) Regulation 78(8) ); these provisions do not expressly set out the right to be represented before a board but the case law has interpreted them in this way.

The right to representation by counsel before an administrative tribunal is not absolute. The existence of this right depends on the nature of the dispute, the complexity of the case, the seriousness of the allegations contained in the pleadings and the consequences that could result from the tribunal's decision.^{231 Citation 231} The tribunal thus retains some discretion to permit or refuse legal representation depending on the extent to which are proceedings are of a judicial nature and the further delays and institutional constraints that could be caused.^{232 Citation 232}

Where the right to counsel exists, an administrative tribunal may not persuade the individuals to waive their right to such assistance.^{233 Citation 233} It may be that a reasonable period has to be allowed for counsel to be retained.^{234 Citation 234} Where the right is recognized, the tribunal may not unduly limit the role of counsel.^{235 Citation 235} Furthermore, failure to advise the claimant of the right to legal aid does not constitute a breach of natural justice.^{236 Citation 236}

It should be noted that s. 128 of the Act   Section 128 of the Actrespecting the Barreau du Québec, which applies in Quebec, does not give advocates an exclusive monopoly on representation before any tribunal. This provision probably does not apply to federal tribunals since such professional legislation does not apply to the federal government.^{237 Citation 237} 

The right to representation by any person of one's choice, including counsel, is widely recognized by the boards of referees.^{238 Citation 238} Depending on the circumstances, counsel's absence on the day of the hearing may or may not be grounds for adjournment.^{239 Citation 239} Representation before courts and tribunals is a procedural matter, which in the case of federal ones comes under the jurisdiction of the federal legislator. Representation or legal aid before a court should not be confused with representation before an administrative authority such as a Commission official.^{240 Citation 240} 

The role of a representative must be limited to that of an agent of one of the parties; the representative may not take it upon himself or herself to act as a member of the tribunal by playing a role similar to that of a member.^{241 Citation 241}

 

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