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Facts[]

The Men's Clothing Manufacturers Association sought judicial review of the decision of the arbitrator in Re Men's Clothing.

Issue[]

  1. When can you deny the right to counsel in an administrative tribunal?

Decision[]

Appeal allowed.

Reasons[]

Southey, writing for the court, noted that neither of the parties in the dispute was a natural person (i.e. they were a union and an company), which means that they must both be represented by agents in the tribunal. It makes no sense to deny lawyers from being able to act as these agents, as lawyers are often used for this purpose in other industries. As a general rule, any party entitled to be represented by an agent in a proceeding cannot have its choice of agent limited unless it is explicitly done through statute.

When assessing whether there is a right to counsel, two factors should be considered:

  1. the complexity of the issues and the competence of the party seeking counsel; and
  2. the significance of the interests at stake.

Here the issues were quite complex, the general manager did not feel competent to represent the issues before the arbitrator, and the viability of the business was at stake. On balance, there was no basis to deny the right to counsel.

Ratio[]

  • As a general rule, any party entitled to be represented by an agent in a proceeding cannot have its choice of agent limited unless it is explicitly done through statute.
  • When considering the right to counsel, consider:
    1. the complexity of the issues and the competence of the parties; and
    2. the significance of the interests.
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