Administrative Justice: More Trouble in the Federal System

Readers who subscribe to The Lawyers Weekly will know to what this post refers.

The above-the-fold headline in the April 24 issue tells the tale:

                                 Unless feds move to address issues                                   claims tribunal in peril, chair says 

The tribunal in question is the Specific Claims Tribunal on which First Nations depend for the adjudication of their damage claims against the government and to the fulfillment of their treaties.  The article, written by Cristin Schmitz, leads with this:

The judge who heads the new adjudicative Specific Claims Tribunal warns it will fail if appointments are not made soon to a body the government pledged would deliver expeditious “justice at last” for historic First Nations claims

It may be found at: http://www.lawyersweekly.ca/articles/2366

The themes are distressingly familiar:

  • With much fanfare and many promises, the government moves a judicial function from one body or bodies – on this occasion from the courts – to a new tribunal which it creates for the purpose.

  • The public reasons for the move are to improve effectiveness, reduce costs, and serve justice better.

  • The judicial function and the associated caseload of the old body or bodies is transferred to the new tribunal.

  • The constituent statute for the new tribunal authorizes the appointment of numerous members – in this case, up to six full-time adjudicators (justices on leave from provincial superior courts).

  • But, then, the government refuses to make timely appointments of the required adjudicators – in this case only one full-time member (the chair) and three part-time members have been appointed since the tribunal was created in 2011.

  • This leaves the tribunal unable to fulfill its statutory duty and the backlog grows to the point where the chair – in this case Justice Harry Slade, on leave from the BC Supreme Court – must go public with his concerns that unless appointments are made the tribunal will fail.

  • The government makes more promises.

  • Meanwhile, the government’s savings in costs continue to roll in – savings from the full-time appointee compensation packages not paid, and, most importantly, from not having to pay the awards the non-appointees would have made – awards that are authorized to be as high as $150,000,000 per case.

Here we have one more example of how our tolerance of constitutional arrangements that frees governments to assign to its own tribunals the exercise of judicial functions in the outcomes of which the government has important interests of its own, and of the disdain governments have for those tribunals, is making a mockery of Canadian justice.

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