Can a square deal negate a fair deal: debate over industry-regulator contact continues

The question of how cozy a regulator should be with a regulated industry became a topic for debate at last week's conference of the Law Society of Upper Canada. As a quasi-judicial tribunal, the CRTC is bound by certain codes of conduct, but those rules don't severely limit lobbyists' access to commissioners and senior staff. Commissioner Stuart Langford was among the panel members debating the issue during a session at the New Developments in Communications Law and Policy conference, held in Ottawa. Two lawyers from a firm specializing in telecommunications also presented a paper on the issue, as did Langford. Langford began by outlining two extreme interpretations: that all contact between parties should be permitted, or that all association is banned, to avoid any perception of conflict. "The Canadian way is to seek a middle ground," Langford writes, "something between sleeping with the enemy and absolute celibacy. But if we take that approach we face a tough judgment call: where is that middle ground?" Joel Fortune and Scott Prescott of the Ottawa firm of Johnston & Buchan presented a paper explaining the concept of ex parte contacts. In essence, the phrase describes a situation where evidence is accepted from only one side or that side has been granted an unfair advantage due to the bias of those making the rulings. They cited several cases to illustrate the point. The most blatant example given was the case of United Enterprises Ltd against the Liquor and Gaming Commission in Saskatchewan. The company had its licence suspended for breaches of the provincial drinking laws. The firm appealed to the commission. During the hearing, the commission members referred to the attorney for the liquor authority by his first name; United's lawyer was called by his surname. The liquor authority's lawyer spent breaks chatting with commission members. At the end of the session, the commission chair invited the authority counsel to a barbecue. It didn't take the Court of Queen's Bench in Saskatchewan long to find that a reasonable apprehension of bias arose from the conduct of commission members. "In the case of the CRTC and other expert regulatory tribunals, it is doubtful whether the Courts will require them to abandon all informal ex parte contacts given the breadth of the mandate of these expert tribunals—encompassing as it does both executive and adjudicative functions," Fortune and Prescott write. "... there appears to be considerable room for such tribunals to engage in ex parte contacts, both formally and informally." The CRTC has been one of the more notable examples of the revolving door policy, and remaining purer than Caesar's wife has always been a concern for current and past staff. Several commissioners and employees have since joined law firms or companies that fall under the regulator's jurisdiction. Langford laments that the conflict of interest guidelines issued by the federal government's ethics counsellor are not more specific on this issue. While the guidelines do provide rules for accepting gifts and hospitality and outline proper procedures for post-government employment, they do not detail what are acceptable dealings between regulators and the regulated. "Can I or can I not do lunch with the folk from Bell Canada?" Langford asks. "If the Cable Association invites me to its annual convention, waves the registration fee and lays on a hospitality agenda that looks as though it had been drawn up by the editors of Gourmet Magazine, may I attend? Should I?" Two pages later, Langford provides his own answer. "A judge does not know from one day to the next who might appear on his or her court docket. Not so a regulator. We know for a fact that sooner or later our tribunal will deal with each and every industry within its jurisdiction. Surely we owe it to Canadians to avoid any source of taint by socializing with those who will surely come before us."

Can a square deal negate a fair deal: debate over industry-regulator contact continues

News | April 25, 2000

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