WALTER SAYS IT IS.
PROLOGUE
Constitutional Law Support for the Unjust Budgets Article when it was first published
The Unjust Budgets article, the article in which this author argues that budget cuts that would prevent an adjudicative tribunal from complying with the principles of procedural fairness raises constitutional issues, was first posted on March 15, 2013 (and, of course, recently “re-posted” on September 27, 2019). The article’s argument was based on the view, then quite tenable, that the unwritten constitutional principle of judicial independence (the PEI principle[1]) applied not only to provincial courts and judges but also to adjudicative tribunals and their members.
It is true that that, when the article was first posted, doubt had been thrown on the latter view by the Supreme Court’s broad language in its 2001 decision in Ocean Port. In that decision, the Court appeared to say that the PEI principle could not apply to any administrative tribunal. But, three Supreme Court decisions that had issued within a month of each other in 2003 – CUPE, Bell and Ell – could reasonably be read as the Court interpreting its Ocean Port decision as applying only to regulatory agencies.[2] Moreover, this restrictive reading of Ocean Port had been explicitly adopted by the B.C. Supreme Court in its 2006 decision in McKenzie[3] in which it held that the PEI principle applied to protect the judicial independence of BC Residential Tenancy Arbitrators.
At the time of the original posting of the Unjust Budgets article we were also waiting for a decision from the Saskatchewan Court of Appeal in Saskatchewan Federation of Labour v. Saskatchewan. The issue there was whether the PEI principle applied to provide constitutional protection for the independence and impartiality of Saskatchewan’s Labour Relations Board.
The lower court had held that it did not – not because the principle did not apply to adjudicative tribunals but because the Labour Relations Board was not an adjudicative tribunal. Given that the status of the Labour Board as an adjudicative tribunal seemed perfectly clear, and in light of CUPE, Bell, Ell and McKenzie on the constitutional issue, it was not unreasonable to think that that appeal would be successful.
But Then ….
The Saskatchewan Appeal Court released its decision three months later, in June 2013, and, to the surprise of many[4], denied the appeal.[5] The Court overruled the lower court as to the status of the Labour Board, but held that the principle of stare decisis required it to accept as binding the statement in Ocean Port that there was no constitutional protection for the independence and impartiality of any administrative tribunals or their members, including adjudicative tribunals.
Thus, the new Saskatchewan government’s overt, mid-term dismissal without cause of the Chair and Vice-Chairs – the so-called “neutral members” of the Saskatchewan Labour Relations Board – and their replacement with the government’s own partisan appointments were found to be lawful. Government actions that had, the government effectively conceded, and the Court explicitly acknowledged, destroyed the Labour Board’s impartiality, were held to be constitutionally valid.
And when the Supreme Court of Canada dismissed the unions’ application for leave to appeal that decision[6], any idea that the constitution would protect the independence and impartiality of adjudicative tribunals and their members seemed to have been put to rest.
Given the dismissal of the application for leave to appeal in the Saskatchewan case, and the Supreme Court’s seeming indifference to the egregious portent of that decision for administrative justice in Canada, it seemed no longer possible to contemplate any constitutional protection for the financial viability of an adjudicative tribunal or for any other aspect of the structures affecting the exercise of such a tribunal’s judicial functions. Realistically, at that point, the Unjust Budgets article had been relegated to the status of a historical curiosity.
WALTER
But, not so fast. Enter, stage right, Mr. Bernd Walter’s principled defence of the independence of his tribunal – the B.C. Board of Review.
Mr. Walter, chair of the BC Review Board, had no option but to defend the independence of the Review Board because the Attorney General, who had the statutory power to set the compensation levels for the Board’s Chair and members was egregiously abusing that power[7] – abusing it, circumstances suggest, in reaction to Board decisions that were politically unwelcome to the BC Government.
Of course, given the then current jurisprudence, and particularly the Supreme Court of Canada’s dismissal of the application for leave in the Saskatchewan Federation of Labour case, it was no surprise that Mr. Walter’s application for judicial review in which he relied in part on the application to his Board of the PEI principle was dismissed at the first level.
BC Supreme Court, Chambers judge, Madam Justice Maisonville, taking the Supreme Court of Canada at its word, accepted what she saw the current PEI principle/Ocean Port jurisprudence to stand for – that is, that “administrative tribunals, no matter how similar in adjudicative functions they are to courts, and even where the administrative tribunal’s functions used to belong exclusively to the courts, are part of the executive branch and, therefore, the constitutional principle of judicial independence cannot apply to their positions”. [8]
Mr. Walter appealed, and was supported in that appeal by Interveners, Democracy Watch, and the Community Legal Assistance Society. And, when the decision in that appeal[9] was released, the availability of a constitutional defence of an adjudicative tribunal’s independence resurfaced and the Unjust Budgets – Constitutionally Valid? article became relevant again.
In Walter, the B.C. Court of Appeal confirmed that the law did not extend constitutional protection for the judicial independence of adjudicative tribunals but found that it did extend constitutional protection for what the Court referred to as “administrative independence” of adjudicative tribunals.[10]
The Appeal was dismissed because Mr. Walter had sought a declaration that he and his Board were entitled to constitutional protection of their judicial independence whereas, in the Court’s view they were only entitled to constitutional protection of their administrative independence. If Mr. Walter’s ask had been only for constitutional protection of his and the members’ administrative independence, it appears from the judgment that the application would have been successful.[11]
(It may be noted that, while the hearing of Mr. Walter’s petition before the Chambers Court judge was in progress, the Attorney General had, on his own initiative, increased the Board’s salaries – the bone of contention which had triggered the case in the first place – retroactively to the maximum available under the Treasury Board’s Directive respecting tribunal salaries, thus rendering the need for deciding the remedy issue moot.)
The Court’s intent in Walter to distinguish between the unwritten constitutional principle of judicial independence applicable to the “judiciary” and not applicable to adjudicative tribunals, and an unwritten constitutional principle of administrative independence applicable to adjudicative tribunals, is conveniently captured in paragraphs [58], [70], [107] and [112] of its reasons. They read as follows (emphases added):
[58] However, even tribunals inside the executive, which cannot assert judicial independence, may require a measure of constitutionally-protected independence. The Attorney General concedes the Supreme Court of Canada in a number of cases has expressed the view that adjudicators charged with weighing Charter claims may require a guarantee of their independence. Whereas the legislature can ordinarily limit or deny the independence of administrative tribunals that are its creation, the extent to which it may do so is restricted by the constitution where the tribunals are competent to address claims involving Charter rights.
[70] In my view, there is a distinction between the highest level of administrative independence, which may be constitutionally required for certain tribunals, and judicial independence. It lies in the fact the judiciary, unlike administrative tribunals, has a constitutional obligation to maintain at all times a distance from the executive or “a deeper commitment to the separation of powers”: PEI Reference at para. 125. That [distinction] permits the clearer articulation of the essential conditions of judicial independence than is possible or desirable for administrative tribunals, even those at the adjudicative end of the spectrum.
[107] In my opinion the jurisprudence clearly establishes that administrative tribunals adjudicating Charter claims must be independent and that their independence cannot be compromised and must be constitutionally protected. The cases do not, however, extend the high degree of judicial independence to all adjudicators to whom s. 11 of the Charter applies or to all adjudicators who are charged with addressing s. 7 Charter issues.
[112] The fact the appellant’s role requires some guarantee of independence from the executive […] does not per se require that he be afforded all the protection of judicial independence. In my view, he is not entitled to the declaration he seeks and the appeal must be dismissed because he cannot claim the same independence as is afforded to the courts.
It seems safe, therefore, to conclude that the BC Court of Appeal has recognized that the constitution protects the independence of at least those adjudicative tribunals whose jurisdiction includes the adjudication of Charter issues.
The scope of that protection remains to be seen and there may be occasion to explore that in future posts.
Moreover, if the protection is in fact to be confined to tribunals with jurisdiction over Charter issues, it will be a precarious protection since legislatures are apparently free to legislate the removal of tribunal jurisdiction over Charter issues. In BC, for instance, the jurisdiction to deal with Charter or other constitutional issues has in fact been removed by provision in BC’s Administrative Tribunals Act.[12]
In Ontario, however, adjudicative tribunal jurisdiction typically includes the jurisdiction to adjudicate Charter issues.[13]
There is, in this author’s opinion, no principled basis for limiting constitutional protection of the independence of adjudicative tribunals to tribunals that have the jurisdiction to deal with Charter issues. But that issue can also be left for another day.
(The author would be pleased to debate any of these issues should anyone reading this post be interested – either through the comment-and-reply function in the website, or privately through my email address – sronaldellis@gmail.com.)
It is enough for now that, least in Ontario, thanks to Walter, the Unjust Budgets article is relevant again.
RE
[1] Established in 1997 in the Supreme Court’s decision in PEI Provincial Judges Reference.
[2] See the article on this website “ … Ocean Port or the Rule of Law” posted on May 14, 2019 at: https://administrativejusticereform.ca/judicial-independence-and-adjudicative-tribunals/
[3] On appeal of that decision by the BC government, the BC Court of Appeal had not thought it necessary to deal with the constitutional issue – dismissing the appeal on different grounds.
[4] Well, okay, at least to this author.
[5] Saskatchewan Federation of Labour v. Saskatchewan, 2013 SKCA 61.
[6] In the interest of full disclosure, it should be noted that this author was co-counsel, arguing in support of the applicability of the unwritten principle of judicial independence to adjudicative tribunals, in both the McKenzie appeal and in the appeal and the application for leave to appeal in the Saskatchewan case.
[7] The BC Treasury Board had issued a Directive setting compensation schedules for various categories of the province’s tribunal’s and the AG had arbitrarily kept the salary of the Board’s Chair at a level that was $55,000/year lower than a reasonable interpretation of the schedule would have indicated and this abuse had gone on for about three years.
[8] Walter v. British Columbia (Attorney General), 2018 BCSC 1204 at para. 124.
[9] Walter v. British Columbia (Attorney General), 2019 BCCA 221.
[10] Ibid., paras. 58, 101, and 107.
[11] Ibid. at paras. 62 and 112.
[12] Administrative Tribunals Act, SBC 2004, c 45; see sections 44(1) and 45(1).
[13] See for instance, R. v. Conway, [2010] 1 S.C.R. 765. But there are exceptions. See, for instance, the exclusion of the Social Benefits Tribunal’s jurisdiction “to inquire into or make decisions concerning the constitutional validity of an Act or Regulation” in SBT’s constituent statute, Ontario Works Act, 1997, SO 1997, c 25, Sch A. See section 67(2a).