What tribunal adjudicators wish you knew
Here are a few simple practices that make a world of difference
During law school and throughout my career as a lawyer, I have focused my practice on administrative law.
While completing my degree, I interned with WorkSafeBC’s review division, which is the first level of appeal for workers and employers dissatisfied with compensation claim decisions. There, I adjudicated appeals of decisions involving claims acceptance and benefit duration.
That experience turned out to be invaluable later, when I began representing unionized workers in their WorkSafeBC claim appeals before the review division and the Workers' Compensation Appeal Tribunal. I already knew what kinds of submissions helped an adjudicator—and which ones didn’t. It saved me time, and it made my advocacy more effective.
For the past 11 years, I’ve practiced labour law, both in private practice and with two of the largest public-sector unions in B.C. I now also serve as a part-time member of the Employment Standards Tribunal (EST), which hears appeals of determinations made under the Employment Standards Act. The tribunal allows appeals on grounds of error of law, procedural fairness, and new evidence.
From this side of the table, I’ve read written submissions from both lay litigants and lawyers. Some are excellent: clear, well-organized, and persuasive. Others, including some from experienced counsel, could be much stronger. A few simple practices make a world of difference.
Know your process
Most administrative tribunals have their own legislation, rules, and procedures. If you don’t regularly appear before a particular tribunal, familiarize yourself with the process. This will help you avoid a procedural mistake that can hurt your client.
For example, if a tribunal has its own rules for the introduction of expert evidence, the Evidence Act does not apply. Knowing this in advance can save you a headache later.
Hit the point first
Don’t make the adjudicator read 17 pages before figuring out what your client wants and why. Try using point-first writing, which puts context before detail. Start with a short, clear summary of your position and the remedy sought, then build your argument from there.
A well-structured roadmap helps the adjudicator understand what your client wants and follow your reasoning. Ultimately, your argument is more reader-friendly and more persuasive.
Keep it tight
Shorter is generally better. A focused, well-written submission beats a long, rambling one every time. The presumption is that the adjudicator will review the entire file.
Say only what’s necessary to make your point and resist the temptation to take the “spaghetti on the wall” approach. Yes, you should marshal the evidence and explain why the law supports your position, but do not drown your argument in word soup.
Know your forum
Not every tribunal hears matters de novo. Make sure you are familiar with the tribunal's jurisdiction. If you’re before an appellate body that doesn’t hear matters de novo, focus on the proper grounds of appeal. Re-arguing the facts is just wasted effort.
Do your homework
Read tribunal decisions on similar issues. They’re often the best insight into what evidence or arguments the tribunal finds persuasive.
Good tribunal advocacy means understanding the enabling legislation, the rules of procedure and practice, and your evidence, while presenting a succinct argument.
The best advocates enable the decision-maker to do their job efficiently and fairly.
* This opinion piece first appeared in BarTalk, the publication of the Canadian Bar Association’s BC Branch.
