Administrative Law - AMA

[Vizslaw]

Hi all,

I've been in practice for 8 years. Articled and started off working in criminal defence (and prosecution agent work) but over the past 5+ years have steadily shifted our practice to focus more on regulatory and administrative law. I'm happy to answer any questions about admin law and our practice areas.

For reference, I'm the managing partner of our small firm (6 lawyers, 1 articling student, 2 admin) in Toronto. We focus mostly on professional misconduct, representing health care professionals and other regulated professionals before their respective Colleges and/or regulators. We respond to complaints and investigations, conduct discipline hearings, bring judicial reviews and other appeals (such as ones before the HPARB or LAT) and do other tribunal work. We have a diverse range of clients from the regulated health professions to real estate agents/brokers, accountants and lawyers/paralegals. 

We still handle criminal and regulatory matters as there is often overlap and our clients can sometimes find themselves dealing with concurrent proceedings, so feel free to ask related criminal and regulatory questions as well.

Anyway, feel free to ask away or PM.

 

[All_in]

What are the biggest differences you've found transitioning from crim defence work to doing regulatory defence/prosecutions now?

What skills and experiences do you look for if/when hiring junior associates? I'd imagine there are a lot more pure civil litigators and criminal lawyers than there are lawyers with regulatory defence experience.

 

[ZineZ]

22 hours ago, Vizslaw said:

Hi all,

I've been in practice for 8 years. Articled and started off working in criminal defence (and prosecution agent work) but over the past 5+ years have steadily shifted our practice to focus more on regulatory and administrative law. I'm happy to answer any questions about admin law and our practice areas.

For reference, I'm the managing partner of our small firm (6 lawyers, 1 articling student, 2 admin) in Toronto. We focus mostly on professional misconduct, representing health care professionals and other regulated professionals before their respective Colleges and/or regulators. We respond to complaints and investigations, conduct discipline hearings, bring judicial reviews and other appeals (such as ones before the HPARB or LAT) and do other tribunal work. We have a diverse range of clients from the regulated health professions to real estate agents/brokers, accountants and lawyers/paralegals. 

We still handle criminal and regulatory matters as there is often overlap and our clients can sometimes find themselves dealing with concurrent proceedings, so feel free to ask related criminal and regulatory questions as well.

Anyway, feel free to ask away or PM.

 

Thanks Vizs!  This is super interesting and I'm going to take time to ask a question myself.

How did your practice move from from criminal defense to regulatory and administrative law? Was it a more natural shift (due to the overlap mentioned above), or something that you actively worked on? 

 

[Vizslaw]

44 minutes ago, All_in said:

What are the biggest differences you've found transitioning from crim defence work to doing regulatory defence/prosecutions now?

What skills and experiences do you look for if/when hiring junior associates? I'd imagine there are a lot more pure civil litigators and criminal lawyers than there are lawyers with regulatory defence experience.

 

Sorry if my intro wasn't clear - I used to do primarily criminal defence and prosecution work and now do more admin and regulatory matters, with some traditional crim files in the mix since they often overlap.

Any mixup aside, I find the biggest difference between criminal defence work and admin/regulatory law files is the amount of written advocacy involved, particularly with the regulated professionals. A significant number of files are resolved without the need for a hearing, so written submissions are often the first - and only - opportunity to convince the regulator that a disposition short of a hearing/discipline is warranted. Not being able to question or cross-examine witnesses at the complaint stage is also a huge difference - us crim folks are used to going in and impeaching credibility, but when you're responding to a complaint you only have their written account, any other documents obtained during the investigation, and what your client tells you - so when you try to challenge their evidence it has a completely different feel doing so in writing since you're sort of stuck with the information out there.

In terms of skills and experience - we look for the usual litigation and advocacy skills. We want people who have conducted trials and/or hearings, who are good on their feet and who present well at hearings. It's A LOT easier going from a criminal court to an administrative tribunal. We also look for people with excellent research and writing skills.

Happy to provide more clarity, examples, or answer any other questions 🙂

[Pendragon]

What regulatory agencies and administrative bodies are considered some of the best places to work at as counsel?

[Vizslaw]

28 minutes ago, ZineZ said:

Thanks Vizs!  This is super interesting and I'm going to take time to ask a question myself.

How did your practice move from from criminal defense to regulatory and administrative law? Was it a more natural shift (due to the overlap mentioned above), or something that you actively worked on? 

 

Hi @ZineZ!

It was a bit of both. We naturally gravitated towards professional misconduct and admin law after representing a number of pharmacists who were charged with fraud, but who also had to respond to audits by the Ministry of Health or complaints from the Ontario College of Pharmacists - all arising out of the same set of facts. Those cases involved billing the Ministry for medication that was either not dispensed, or dispensed when it was ineligible under the Regulations. We learned pretty quickly that we could adapt and assist them in those areas as well, once we figured out how the Regulated Health Professions Act worked and how the Ministry conducted their audits and that whole process.

At the same time, we also believed that our practice area of criminal defence (and Federal Crown Agent work) was shrinking due to a diluted market (criminal defence in Toronto are everywhere) and we were too reliant on external forces (i.e., the PPSC) to assign us prosecution work. The work was exceptional - we got to run some fairly high profile project cases and jury trials - but we little control over what files we took on, which I found stressful. I also had to deal with the reality that my PPSC rate was $120 versus my private rate for admin files, which was $300. So after some particularly intense, acrimonious trials, we just sort of collectively looked in the mirror and realized that our firm could be much healthier if we shifted to administrative law. Plus, most of our professional clients have liability insurance, so it's a whole different ballgame.

We also made a hard push online with SEO, Google Ad Word campaigns and other networking projects to branch out into the administrative law realm. It suited our skill set anyway - we had all conducted complex trials and appeals, so once we figured out the rules of evidence pretty much go out the window with some tribunals, we felt at home conducting hearings in boardrooms instead of courtrooms.

Hope that helps!

 

[Vizslaw]

26 minutes ago, Pendragon said:

What regulatory agencies and administrative bodies are considered some of the best places to work at as counsel?

I don't work in-house, but I have some colleagues/friends who work at the Electrical Safety Authority and really like it. I've also heard really good things about working in-house at the Ontario College of Pharmacists and the College of Physicians and Surgeons of Ontario.

[frozenbananas]

Hi @Vizslaw! 

As a student I think Regulatory/Admin could be a good path for me as it combines the things I like about criminal law (oral advocacy, research and writing) without being a fully criminal lawyer as I don't think the defence lifestyle is for me nor do I particularly find interest in Crown work.

That being said, I have a few questions:

1. Does it matter where a student starts their career if they want to get into professional misconduct? For example, I know firms like McCarthy, Lerners, Lenczner etc. do have work in this area but if say a student is hired into a more general litigation shop (Big Law) or something like Personal Injury, would they still be an attractive candidate for your firm if they wanted to move into this area without a criminal law background?

2. What is the lifestyle like? As you mentioned most of your work is dealing with the Colleges which I would imagine have more in-house type hours (though correct me if I am wrong) as a lawyer, does this help with more manageable work days? How many hours would you say on average you're working on a weekly basis? 

3. Since you're assisting the professional (i.e., the doctor, nurse, accountant etc.) how would you describe these types of clients? Do they tend to be demanding or hard to work with as you often hear in family law? Also, without giving too much away, how does these people pay you if you don't mind me asking? I'd imagine representation by your firm is not cheap and so I wonder how does a nurse or accountant get the funds to retain your firm? Do you take Legal Aid certificates or are you paid by their insurance companies?

4. Lastly, what is your favourite and least favourite part of this work? Do you see yourself doing this until retirement?

Thank you!

[Vizslaw]

Hi @frozenbananas, thanks for the questions.

4 hours ago, frozenbananas said:

1. Does it matter where a student starts their career if they want to get into professional misconduct? For example, I know firms like McCarthy, Lerners, Lenczner etc. do have work in this area but if say a student is hired into a more general litigation shop (Big Law) or something like Personal Injury, would they still be an attractive candidate for your firm if they wanted to move into this area without a criminal law background?

Good question. There is no one-size-fits all. I don't even think a criminal background is necessary anymore, even for our firm. Criminal files represent about 10% of our current caseload. I personally think the transition to admin law hearings is a lot easier if you've run criminal trials but it's not a prerequisite. Pretty much any type of civil litigation experience would be seen as a plus. I'm not sure about personal injury specifically, it would depend how many contested hearings you would have with that background. We would just want people who are good litigators. You can learn the nuances of the Colleges and professional misconduct files a lot easier than learning how to run contested hearings if you don't have that experience, particularly cross-examining complainants. 

4 hours ago, frozenbananas said:

2. What is the lifestyle like? As you mentioned most of your work is dealing with the Colleges which I would imagine have more in-house type hours (though correct me if I am wrong) as a lawyer, does this help with more manageable work days? How many hours would you say on average you're working on a weekly basis?

I'm biased, but I think our firm has a pretty solid work-life balance. Everything comes in waves, but I think we're generally billing around 1,300 - 1,600 hours on average. Some years I've crushed more than 2,000 hours with back to back to back to back to back trials. Some times are just more manageable, it's really hard to say. I think the expectation is to bill 5 hours a day, 5 days a week. Some years we have definitely come in under 1,300 hours annually. We had an associate come in around 950 hours due to some health related issues. I tend to work more as one of the managing partners because it's 50% my business and I want it to thrive. So I'm up late worrying about our associates and how to keep them happy lol.

4 hours ago, frozenbananas said:

3. Since you're assisting the professional (i.e., the doctor, nurse, accountant etc.) how would you describe these types of clients? Do they tend to be demanding or hard to work with as you often hear in family law? Also, without giving too much away, how does these people pay you if you don't mind me asking? I'd imagine representation by your firm is not cheap and so I wonder how does a nurse or accountant get the funds to retain your firm? Do you take Legal Aid certificates or are you paid by their insurance companies?

This is a tough one because, on the one hand, our clients are professionals so they are educated and risk-averse. They usually want to protect their reputation above all else and more inclined - generally speaking - to mitigate their losses rather than take the bigger risk/reward of a contested hearing. On the other hand, they can (at times) think they know better because of their expertise and be quite difficult to wrangle or have them see things objectively. Overall, they make for good clients and are goal-oriented.

A significant number of them are covered by their professional liability insurance. However, not all policies seem to be created equally. For example, the Registered Psychotherapists and Pharmacists tend to have more generous policies (in the sense that their legal defence is covered with few exceptions), whereas Nurses and Massage Therapists often have policies where they are only reimbursed if they are "fully successful" with either means a withdrawal of a complaint or a finding of not guilty after a hearing.

I think our fees are competitive. We do not take Legal Aid certificates and I suspect that most of our clients would not qualify even if we did. We used to take on Legal Aid files for criminal matters but that is too small a part of our practice to keep up with now. Our initial retainers are usually in the range of $5,000+HST, so not something that will outright deter a working professional. Given the nature of the work, there is usually more than enough time to come up with a payment plan since it can take 4-6 months or so on average to go from an initial complaint to a decision, assuming there is no referral to a discipline committee or any further action taken. The expenses do add up over time, but it's not like an immediate hit in the same way that we might require a more substantial retainer to file a notice of application for a judicial review and then have to perfect the materials within a short timeline. We would typically ask for larger retainer in those cases.

5 hours ago, frozenbananas said:

4. Lastly, what is your favourite and least favourite part of this work? Do you see yourself doing this until retirement?

Favourite part is absolutely that every case is so different. Within the scope of professional discipline hearings you can have the regulated health care professions (all 26 or so of them), but then there are the other regulated professionals like accountants, architects, lawyers/paralegals, real estate salespeople and brokers, master electricians, etc. There is such a diversity of files that I always feel like I'm learning some new every day. I've had a complex file with a veterinarian about whether a surgery performed on a dog was necessary and/or negligently performed, with several different expert witnesses and reports. I've had a file with a Pharmacist who faced a complaint from an employer about drinking at the workplace after hours. It's just always different and it keeps me on my toes.

Least favourite part is that I sometimes lose faith in our professions when some clients are just imposssssssible to deal with. Like a lawyer who refuses to acknowledge that misappropriating trust funds was bad because he repaid them and nothing happened. Or a health care professional who was adamant that vaccinations are a hoax. Sometimes you just shake you head at people who are otherwise supposed to do the right thing. But hey, that's what keeps us in business?!?

I definitely see this as my jam until retirement. We are always looking to expand our practice areas, particularly as they relate to our existing clients and business model. I think our next step will be branch into some employment law since there tend to be a few wrongful dismissal claims or workplace investigations that happen before the professional discipline context is engaged. We also bought a kick-ass building for our office last year and are slowly renovating it, so I've got a lot of personal skin in the game for this not to work out.

 

Happy to answer any other questions!

[frozenbananas]

Thank you so much for the detailed answers! Very helpful putting into context a practice area that I don't think is "well-known" but interesting.

I think what draws me to it as well is that it is sort of "retail law" not in negative sense but just that it deals with real people and their legal issues and that has been my favourite thing about the law, translating it to laypeople in a way that is helpful so I see myself enjoying an area where my clients are people and not big business but I also know myself and I don't think I could do family or criminal so this feels like a happy medium. 

Do firms like yours take on summer and articling students/participate in the OCI recruit? Or is an area of law most people lateral into?

[Vizslaw]

2 hours ago, frozenbananas said:

Thank you so much for the detailed answers! Very helpful putting into context a practice area that I don't think is "well-known" but interesting.

I think what draws me to it as well is that it is sort of "retail law" not in negative sense but just that it deals with real people and their legal issues and that has been my favourite thing about the law, translating it to laypeople in a way that is helpful so I see myself enjoying an area where my clients are people and not big business but I also know myself and I don't think I could do family or criminal so this feels like a happy medium. 

Do firms like yours take on summer and articling students/participate in the OCI recruit? Or is an area of law most people lateral into?

Yeah one thing we've definitely noticed during this hiring recruit is that a lot of students don't take administrative law or advocacy before administration tribunals... We typically hire an articling student each year and often hope they force the issue for us to hire them back. But since we're a small firm that doesn't always work. We've also had a lot of interest from associates looking to lateral from civil litigation firms and a number of SCJ clerkship students since they tend to see a lot of judicial reviews. We're always looking!

[MOL]

When are the Supremes going to finally figure out the Standard of Review and friggin' stop changing it every couple of years?

[Vizslaw]

@MOLI think we're probably stuck with Vavilov but these are the things that make practice fun!

There have been some other fun developments in administrative law recently, like Poorkid Investments Inc. v. HMTQ which found section 17 of the Ontario Crown Liability and Proceedings Act unconstitutional.  I've only seen one case where an individual wanted to sue the government or government officials and section 17 pretty much made it impossible to succeed on a motion. The Crown is appealing but there should be a window of opportunity where some interesting cases come forward. 

We're also all eating popcorn waiting in anticipation for the SCC to release its decision in Law Society of Saskatchewan v. Abrametz. It's anyone's guess what test they will come up for unreasonable delay in the administrative law context, but I would be surprised if the Supremes did anything like Jordan and just come up with some numbers and make presumptive ceilings because the variety within the admin law context is just too broad. There is also the (perhaps) unpopular opinion that delay in some professional discipline or administrative can benefit the defendant, particularly if it is inevitable that they will face a lengthy suspension or revocation of a professional licence. I'm not saying that is my opinion, but the issue of whether any delay causes prejudice to the defendant is a fair one to debate.

Edited April 17, 2022 by Vizslaw
tag

[MOL]

Interesting, I'll read up on those. My practice is starting to morph towards more admin so edification is an ongoing process. 

[GreyDude]

Hi @Vizslaw, you still doing this? Over the last several years I have been developing an interest in corporate and (especially) non-profit or public sector governance, in part because I served for 6 years on the Board of an educational institution with a very dysfunctional administrative structure—as well as dysfunctional administrators, but that's another (connected) story. It seems to me that the best way to explore this interest would be in the context of administrative law. Have I understood correctly?

Also, it seems to me that there are several aspects of labour/employment law, at least in Quebec with the Civil Code, Normes de Travail, and so on, that are administrative in nature. In fact, I suspect that in most fields, lawyers would do well to know something about administrative law, specifically, in addition to whatever else they're specialized in. Am I on the right track? Or am I just noticing that "kinds" of law in general just have a tendency to overlap?

Thanks for the AMA!

Edited June 19, 2023 by GreyDude

[Vizslaw]

Hi @GreyDude

I'm still alive and kicking over here. I have also been doing some non-profit governance on a board of directors and the background in admin law doesn't hurt.

I fear that I'm unable to really help or weigh in on the Civil Code/Quebec as I'm located in Ontario and don't know enough about that to comment. I'm sorry if this isn't very helpful! Happy to message or answer any other specific questions.

[t3ctonics]

3 hours ago, GreyDude said:

Hi @Vizslaw, you still doing this? Over the last several years I have been developing an interest in corporate and (especially) non-profit or public sector governance, in part because I served for 6 years on the Board of an educational institution with a very dysfunctional administrative structure—as well as dysfunctional administrators, but that's another (connected) story. It seems to me that the best way to explore this interest would be in the context of administrative law. Have I understood correctly?

Also, it seems to me that there are several aspects of labour/employment law, at least in Quebec with the Civil Code, Normes de Travail, and so on, that are administrative in nature. In fact, I suspect that in most fields, lawyers would do well to know something about administrative law, specifically, in addition to whatever else they're specialized in. Am I on the right track? Or am I just noticing that "kinds" of law in general just have a tendency to overlap?

Thanks for the AMA!

Labour and employment in common law jurisdictions also has significant admin law components, as do other areas with robust regulatory regimes or administrative tribunals. Arbitrators and labour boards are administrative decisionmakers and are subject to judicial review. Labour, employment standards, occupational health and safety, and workers' compensation are all regulatory regimes with robust administrative systems and decisionmakers ranging from purely administrative to quasi-judicial, with judicial review or statutory appeals available.

You're right that in many fields lawyers would do well to know something about admin law. It comes into play in virtually every interaction between the public and the administrative state, as it provides the fundamental rules for that relationship. But you're also right that many areas of law overlap - for example, contract law is relevant to most practices. 

On the issue of governance, knowing admin law is helpful like in many other areas, but corporate governance is its own field and knowing the substantive law and practical considerations is of primary importance. Most disputes relating to governance are dealt with though self-help remedies (e.g. shareholders removing directors) or civil actions (including statutory causes of action like oppression), which don't engage admin law, but there are still many points of contact with regulatory regimes and administrative decisionmakers, especially for publicly-traded companies.

[GreyDude]

On 6/20/2023 at 12:26 PM, t3ctonics said:

On the issue of governance, knowing admin law is helpful like in many other areas, but corporate governance is its own field and knowing the substantive law and practical considerations is of primary importance. Most disputes relating to governance are dealt with though self-help remedies (e.g. shareholders removing directors) or civil actions (including statutory causes of action like oppression), which don't engage admin law, but there are still many points of contact with regulatory regimes and administrative decisionmakers, especially for publicly-traded companies.

This is extremely interesting. What if we move the question to public institutions established by statute?  For example, the board on which I served until recently had a composition that was established by the relevant Act. Directors (we just said ‘members’) were either named by the Government upon institutional recommendation or elected by stakeholder groups, so the kind of idea you use as an example (shareholders removing directors) doesn’t work as a control mechanism. In addition, such Boards tend to be dominated by volunteer members. Here, the overlap between legal requirements and best practices tends to be very strong, or so it seems to me. My point is that this makes me wonder whether administrative law might take on a greater role in such institutions than in private corporations. 

Of course, I am in a civil law context, and I don’t expect those not working on that side of the fence to be able to clearly say what’s what, but I suppose that there is likely some common ground between the civil and common law systems. I am not formulating a clear or precise question here — sorry — but I am interested in anything more you might have to offer. 

 

[GreyDude]

On 6/20/2023 at 12:26 PM, t3ctonics said:

Labour and employment in common law jurisdictions also has significant admin law components, as do other areas with robust regulatory regimes or administrative tribunals. Arbitrators and labour boards are administrative decisionmakers and are subject to judicial review. Labour, employment standards, occupational health and safety, and workers' compensation are all regulatory regimes with robust administrative systems and decisionmakers ranging from purely administrative to quasi-judicial, with judicial review or statutory appeals available.

To be clear: this seems to be saying that a grievance arbiter in a labour context would be governed by administrative law while applying the labour code… does that sound right?

[Jaggers]

13 hours ago, GreyDude said:

To be clear: this seems to be saying that a grievance arbiter in a labour context would be governed by administrative law while applying the labour code… does that sound right?

The arbitrator applies the collective agreement. That's labour law. Then if you don't like the decision, you can apply for judicial review, which gets you into administrative law. You can't technically "appeal" the decision.

A small handful of tribunals have formal appeal provisions (e.g. WSIB -> WSIAT) but most depend on judicial review to correct wrong decisions (whatever the standard of review is at the time) rather than appeals. So an employment lawyer needs to understand admin law for sure.

[Jaggers]

Though... that's in Ontario and I think most common law provinces. Quebec is weird.

[GreyDude]

6 hours ago, Jaggers said:

Though... that's in Ontario and I think most common law provinces. Quebec is weird.

Yeah... if nobody else does it before then, I'll update this thread with the Quebec weirdness in a few years after I've taken the applicable courses or acquired the relevant experience 😉, while looking back at these questions and rolling my eyes at myself.

Thanks!

Edited June 22, 2023 by GreyDude

[GreyDude]

On 6/19/2023 at 8:07 AM, GreyDude said:

Over the last several years I have been developing an interest in corporate and (especially) non-profit or public sector governance,

It was just pointed out to me that I said "corporate" here. I don't know what I meant to type, but I am specifically NOT interested in corporate governance. It's the public and not for profit sectors that interest me.  Sheesh, GD, say what you actually mean! I'm sure many of the principles are the same, but I am committed to democratic governance structures, specifically, and don't really give a sh*t about shareholder profits. 😉

Edited June 23, 2023 by GreyDude