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Protecting Private Interests in Public Inquiries


November 13, 2009


Erica J. Baron
Jane A. Langford
W. Niels Ortved

In the past fifteen years, there have been numerous public inquiries in Ontario. In every instance, corporations, organizations, institutions and individuals have found themselves uncomfortably defending private interests in very public fora. In these circumstances, participants are often shocked to discover that some of the tried-and-true litigation defence strategies are ineffective — or even unavailable.

McCarthy Tétrault LLP has acted as counsel for parties with standing in many inquiries, including the recent Inquiry into Paediatric Forensic Pathology in Ontario, which specifically reviewed the interaction of this practice with the criminal justice system. Led by The Honourable Stephen T. Goudge, the Commission was established after the results of the Chief Coroner’s review concluded that Dr. Charles Smith, a Hospital for Sick Children’s pathologist, had made errors that were alleged to have influenced criminal prosecutions. McCarthy Tétrault LLP represented Dr. Smith at the Inquiry, which ran from April 2007 to April 2008.

The public nature of an inquiry has profound implications for individuals, institutions and corporations who are involved in the delivery of public services or other matters of "public concern." Unlike civil proceedings — where parties are protected by the implied undertaking rule, confidentiality orders are the norm, and private, off-the-record resolutions are possible — inquiries focus on accessibility of information and transparency to the public at every stage. During the Goudge Inquiry, the Commission established a website on which hearing schedules, press releases, transcripts, motion materials, rulings and submissions were posted. The proceedings themselves were webcast to the public and the public gallery, and adjacent media rooms were regularly at capacity. This broad exposure had to be considered in every strategic decision taken. There was no avoiding the spotlight.

Moreover, the notion of the public good that underlies a public inquiry can easily come into conflict with the interests of private parties. Under the Public Inquiries Act, a Commissioner typically has the authority to make findings of fact that have the potential for serious legal and reputational consequences. Yet public inquiries are not subject to the rules of civil procedure or evidence that govern civil and criminal proceedings, thus presenting a challenge to counsel who are accustomed to using these rules to protect private interests. Detailed review of the inquiry’s terms of reference (Order-in-Council), strategic use of the inquiry’s rules of procedure, cooperation with Commission counsel, and knowing when it is necessary to stand firm are all critical to ensuring a positive outcome for private clients.

One of the challenges of a public inquiry is its multi-lateral nature. At the Goudge Inquiry, four institutions, two groups of individuals with common interests, five public organizations and two individuals, represented by 27 counsel, were granted standing. Understanding the mandate of these different parties was critical in anticipating the approach counsel would take with witnesses and submissions. Moreover, with so many parties and counsel and a time-limited mandate, it was not surprising that the Commissioner imposed time limits on counsel in both examination and cross-examinations. As stated by Justice Goudge, this restriction "required extensive preparation and a distillation of what often appeared to be volumes of material." Indeed, with 4500 documents on the public record and 93 witnesses, making choices to advance priorities was necessary.

The governing principle for organizations that find themselves involved (likely involuntarily) in a public inquiry is to embrace the mandate of the Commission. If the Commission perceives your organization’s interest to conflict with the public interest, your organization will likely suffer the devastating consequences of the tremendous powers granted the Commission. Aligning your private interest with the public interest usually offers the best and likely only way to survive this very public and invasive proceeding.