A Regulatory Prophecy for 2022 – by Jordan Glick (December 2021)
There is not much left to be said about the pandemic. It has shattered even the frailest illusion of control over our lives that we once shared. It has also forced us to embrace change on a scale rarely seen. There is a new social attitude and motivation to challenge, change, fix or reinvent virtually every institution and process.
Regulators, tribunals and the courts are not immune. Looking ahead, here are 5 predictions for the year that will be in 2022:
(1) Innovation Sandboxes Will be Embraced by More Regulators
In late 2020, The Law Society of British Columbia began accepting applications to its “Innovation Sandbox”, an initiative seeking to enhance legal assistance to the public by creating a “safe space” for individuals and companies, who are not otherwise permitted to provide legal services to the public, to test their ideas in a controlled environment.1 The Sandbox now has 18 participants ranging from individual service providers to online platforms;2 What they all have in common is that they would not otherwise be entitled to provide legal services to the public. In 2021, the Law Society of Ontario followed suit with a similar program, the “Access to Innovation Project”, to permit the development and implementation of innovative technological legal services that would otherwise not be accessible to the Ontario market.3
These initiatives reflect a reasonable counterbalance to a world in which technological innovation is far outpacing legislative drafting. Virtually every regulator is currently being challenged by some form of new or emerging technology. In 2022, regulators will be forced to confront such technological change. More regulators will embrace a shift in dialogue from “does this fit within our legislation” to “does this present a risk to the public”. As the conversation changes, more regulators will initiate their own sandbox initiatives and create controlled and supervised environments for innovative products and service models.
(2) The Number of Regulators Will Shrink in Ontario
The paradigmatic shift in the regulatory regime of healthcare regulators in British Columbia foreshadows what is to come in Ontario. BC has charted a course that will see the 26 current regulators amalgamate into 6.4 There is a cost to these amalgamations. However, they also come with significant benefits by providing scale for regulators that will ultimately reduce costs to registrants and licensees while also enabling regulators to engage in broader and more meaningful mandates focusing on risk and harm reduction.
(3) Professional Adjudicators Will Replace ILC at Disciplinary Hearings
As the newly appointed Tribunal Director and Discipline Committee Chair of the College of Physicians and Surgeons of Ontario, David Wright wasted no time in rebranding his operation to the Ontario Physicians and Surgeons Discipline Tribunal.5 More substantively, he hired several new professional adjudicators to chair hearings.
The move to professional adjudicators is a no-brainer for regulators. Any costs associated with professional adjudicators are offset by the savings in no longer hiring Independent Legal Counsel. Further, professional adjudicators should streamline proceedings by avoiding ILC intervention on every legal question, improve the experience of participants moving through the disciplinary process, and both improve disciplinary panels’ reasons and reduce the amount of time they spend drafting decisions.
(4) In-Person Hearings Will Become the Exception, Not the Rule
At some point in 2022, the idea of in-person hearings will again resurface for regulators. However, the rules of various tribunals will be amended to favour electronic or hybrid hearings. Parties will be required to demonstrate the prejudice that they may suffer if an in-person hearing is not granted.
While we believe that this is coming, until such time as technology catches up to the needs of tribunals, we urge restraint. While online hearings have become necessity, that does not mean that they are good or even adequate substitutes for their non-virtual alternatives. Not yet. Technological glitches have derailed many a hearing throughout the pandemic and the digital experience has not, in many ways, caught up to the in-person experience. This may change in the “metaverse” but we will likely not be in a place to realistically discuss the virtual reality courtroom until our predictions for at least 2023.
(5) Tribunals Will Be Introduced to a New Generation of Young and Talented Litigators
Several months ago, the Chief Justice of Ontario issued a statement encouraging the more significant involvement of junior and less experienced counsel at the court.6 The court called on senior litigators to foster an environment that will develop junior counsel by sharing responsibilities of oral advocacy. The same principle applies to tribunal advocacy.
We at GlickLaw have always shared in this tradition, fostering the development of two excellent young advocates in Jordan Stone and Aly Haji whom our clients have come to trust. With the pronouncement of the Chief Justice, we anticipate more law firms will act with greater inclusivity towards junior advocates, thus broadening and enriching the tribunals experience.
We wish you a Happy Holidays, a Happy New Year, and look forward to connecting in person in 2022.