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) and R. 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 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

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

It should be noted that s. 128 of the Act  respecting 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 

The right to representation by any person of one's choice, including counsel, is widely recognized by the boards of referees.²³⁸ Depending on the circumstances, counsel's absence on the day of the hearing may or may not be grounds for adjournment.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 

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

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