THE ADVOCATE 827
VOL. 78 PART 6 NOVEMBER 2020
them when linking in to the teleconference, the applicant’s privacy will be
breached if the applicant has not consented to that observer’s participation.
Even if the panel chair, at the outset of the hearing, cautions that all participants,
including observers, be identified, the chair has no real way of knowing
who is listening in, as a type of observer, at the teleconference
proceedings. An applicant may, of course, wish to have a person present
with them during a hearing as a support person, which is desirable for a
decision maker to allow, as a trauma-informed approach to adjudication.
The crucial factors to avoid a privacy breach are the applicant’s knowledge
of an observer’s presence at the hearing and the applicant’s consent to that
Although there is the potential for a privacy breach if an applicant is
unaware of the presence of an unidentified observer, my practical response
is that it would be the very rare case where such a breach would occur. I do
not believe that the slight risk of such a breach outweighs the great benefits
of using teleconference technology for legal proceedings.
One of my most unique experiences as a Board decision maker involved
a teleconference hearing in which, early in the proceeding, very loud
noises of distress and anguish began to radiate from someone participating
in the proceeding. To me, it sounded like a dog in pain, with alternating
moans, groans, unmuffled shrieks and screams. It was incredibly loud, and
unnerving. It reached the point where it was becoming impossible to hear
witness testimony during the teleconference. As panel chair, I intervened,
noting that there appeared to be a most unhappy pooch in someone’s room
causing a commotion. Then, I politely requested that the dog’s owner
remove him from the room so that the proceedings could proceed without
the hullabaloo. The applicant’s lawyer laughed and said, “It isn’t a dog. I
think it is Mr. Applicant’s rooster. Is that right—is that your rooster, Mr.
Applicant?” The applicant’s response was a gruff “Yep.” I was startled. It was
necessary for me to make a very quick ruling: the rooster was either in or
out as a hearing participant. My ruling was: “Oh, a rooster! Well, then, that’s
fine.” The rooster was in.
Why did I make that ruling? Experience helps with instinct. My prompt
ruling was based purely on instinct drawn from many years of decisionmaking
Words are important, and the applicant’s legal counsel referred to the
rooster not as “a” rooster, but rather “his rooster” and “your rooster, Mr.
Applicant.” Those linguistic clues were evidence that the rooster was someone
close to the applicant: his pet, or better described in this case of a lonely
man living in isolation on a rural property, his only friend in the world.