Active Adjudication or Entering the Arena: How Much is Too Much?

Originally published in the Canadian Journal of Administrative Law & Practice - Volume 24.

Administrative proceedings are generally more flexible, accessible, expeditious and informal than court proceedings. As part of the delivery of administrative justice, decision-makers may adopt streamlined proceedings, and engage the parties more directly than judges. As a result, an important issue in the area of administrative law is the limit on “active adjudication”—at what point will the interventions by or participation of an adjudicator be seen as descending into the arena and com-promising the fairness of a proceeding? The major concerns are adjudicator con-duct raising a reasonable apprehension of bias, based on the appearance of taking the “side” of one of the parties, or prejudging facts, evidence or credibility.