Parties appearing before adjudicative tribunals are entitled to representation by an agent of their choosing, but tribunals retain a residual discretion to override this general right, provided that the discretion is properly exercised. The Discipline Committee of the Association of New Brunswick Registered Nursing Assistants refused to allow the Appellant, a Registered Nursing Assistant (“RNA”) to be represented by a non-lawyer, a national representative of the Appellant’s union. The fact that the Registered Nursing Assistants Act allowed for legal representation does not support the inference that the right to lay representation has been abrogated. The section is permissive and does not restrict nor prohibit any party from attending with a representative of his or her choice. The Association’s decision to prohibit a non-lawyer to act as the Appellant’s agent was based on a false or unsubstantiated premise that he was practising law in contravention of the Law Society Act and breached its fairness duty. Accordingly, the appeal was allowed and the decisions of the Association, with respect to the finding of professional misconduct and the order to pay costs, were set aside.

Administrative law – Practice and procedure – Boards and tribunals – Right of parties to choose an agent

Thomas v. Assn. of New Brunswick Registered Nursing Assistants, [2003] N.B.J. No. 327, New Brunswick Court of Appeal, September 4, 2003, Rice, Turnbull and Robertson JJ.A.

The Appellant, a Registered Nursing Assistant, appeared before a Disciplinary Committee of the Respondent, the Association of New Brunswick Registered Nursing Assistants, together with a national representative of the Appellant’s union. Counsel for the Respondent objected to the representative’s participation on the ground that his involvement would constitute “practising law” contrary to the Law Society Act, 1996, S.N.B. 1996, c.89. The Committee ruled that the representative “could not have input into the hearing but may remain as an advocate to [the appellant] and can continue to act on his behalf…”. The Appellant was given the opportunity to retain a lawyer but he did not do so. The Committee went on to find the Appellant guilty of professional misconduct, given a one-year suspension and ordered to pay costs of $3,600.

On appeal, the Court found it was wrong in law to conclude that a union representative acting on behalf of a union member in a disciplinary hearing was practising law.

Persons appearing before adjudicative tribunals possess the right to be represented by an agent of their choosing. But the right is not absolute. Tribunals retain a residual discretion to limit participation to those persons that the tribunal believes will facilitate, rather than hinder, the adjudicative process. In exercising that discretion, tribunals are required to justify their decisions to exclude a particular category of agent. The exclusion of lawyers is not permissible where the remedial powers of the tribunals are severe, and when a person’s reputation or livelihood is at stake. Similarly, the exclusion of non-lawyers is not permissible unless the tribunal forms the opinion that their participation is likely to hamper, rather than facilitate the hearing process.

The appeal was allowed on the ground that the discretionary decision to deny the Appellant the opportunity to be represented by a non-lawyer was based on a false or unsubstantiated premise. In the result, the decisions with respect to the finding of professional misconduct and order to pay costs were set aside.

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