Administrative justice – op ed article English version, and reaction to WSIAT Chair Mystery

The reaction of one experienced workers’ comp advocate to the WSIAT Chair Mystery exposé :

 That can’t be right, $ 140,000 per year? Some senior Appeals Officers at  the WSIB earn close to that amount.  Perhaps it comes with a huge severance package, pension benefits etc. That must be it, has to be.

As if ….

LE DEVOIR OP-ED ARTICLE ON ADJUDICATIVE TRIBUNAL APPOINTMENTS PROCESSES – ENGLISH TRANSLATION.

Here, for those bereft of French,  is the original English version of the Le Devoir article referred to in my previous post (plus, tucked in at the end, two paragraphs edited out of the original paper to meet Le Devoir’s word limit):

FEDERAL  REFORMS TO GOVERNOR-IN-COUNCIL APPOINTMENT PROCESSES

KEY TO ADMINISTRATIVE JUSTICE IN CANADA

Every year, the Federal cabinet selects hundreds of people for appointment or reappointment as full or part-time chairs or members of a myriad of federal regulatory agencies, Crown corporations and adjudicative tribunals, and entrusts these appointees with decision-making powers that affect dramatically the everyday lives of all Canadians.

These appointments are typically for three- or five-year renewable terms, and because they are formally made by the Governor General on the advice of cabinet, they are commonly referred to as GIC (Governor-in-Council) appointments.

In adjudicative tribunals, GIC appointees hear and decide all manner of legal rights disputes from entitlement to disability benefits to refugee claims.  Those entrusted with these critical decision-making powers are currently selected through internal government processes typically hidden from public view.   In these processes, the search for what from a public interest perspective would be most desirable – superior, relevant qualifications, optimum competence, diversity – has been widely perceived to take second place to the pursuit of the government of the day’s partisan and patronage agendas. This perception has long undermined public confidence in the abilities and in the independence and impartiality of the persons selected.

Equally disturbing is the arbitrary nature of the reappointment decisions the government makes upon the expiration of each GIC appointee’s short term of appointment.  Reappointments are commonplace and, from the system’s perspective, necessary. Appointees performing at a reasonable standard have every reason to expect reappointment to further terms.  Yet, without merit-based, fair and transparent reappointment processes, public confidence in the independence of decisions made by members awaiting news on their reappointment is further undermined.

The unacceptable implications of such appointment and reappointment processes for the independence of adjudicative tribunals and their members were authoritatively documented by Noreau, Houle, Issalys and Valois in La justice administrative: entre indépendance et responsabilité, the 2014 report of an in-depth empirical study of Québec’s adjudicative tribunals where similar in-house selection processes are to be found. They were also described in some detail by Ron Ellis in Unjust by Design – Canada’s Administrative Justice System, published in 2013.

In February, Prime Minister Trudeau announced that the Government of Canada was moving quickly to apply an “open, transparent and merit-based selection process for Governor in Council appointments” which would result in appointment to such positions of “high-quality candidates who truly reflect Canada’s diversity”. This is a welcome and long-overdue initiative.

In pursuing that initiative, the government needs to consider the design of the selection processes for appointments and reappointments to adjudicative tribunals. While the rule of law, together with concerns for independence and impartiality, apply to all GIC appointments in ways that reflect the diverse contexts in which they function, such concerns take on added importance in the case of adjudicative tribunals. Any reform of the appointment and reappointment processes for adjudicative tribunals must proceed on the premise that the functions of such tribunals are exercised by chairs and members appointed and reappointed on the basis of processes that meet the highest requirements of adjudicative impartiality and independence.

For Canadians to have confidence in their system of administrative justice, these tribunal adjudicators’ decision-making must not only be but, even more importantly, also perceived to be, free of inappropriate influences.  The nature of their appointment and reappointment processes are of critical importance to that perception and these processes fail to meet these basic principles to the extent that they: (a) are perceived to be partisan processes, (b) provide for the appointment of chairs and/or members at pleasure, (c) expose them to the possibility of arbitrary, mid-term dismissals without cause, or (d) allow reappointment decisions that are not transparent, objective and merit-based.

Tribunal appointment processes should be designed to ensure expertise as well as independence and impartiality but this does not preclude the equally important element of developing a diverse roster of GIC appointees who understand the needs of the public they serve. We applaud the federal government for its intention to marry subject-matter expertise with diversity in updating its process for selecting GIC appointees.

The federal government’s commitment to the development of a new approach for the selection of GIC appointees for adjudicative tribunals offers the prospect of fundamental reforms in what has been a long-neglected component of our justice system. In designing and carrying out these reforms, the government will benefit from guidance offered by the numerous reports and studies which have over several decades documented deficiencies in the current system and proposed solutions including, most particularly, the recent Quebec report.

Canadians should embrace this prospect of reform and its promise of independent, impartial, expert, competent, and diverse adjudicative tribunals delivering the high standard of administrative justice to which they are entitled.

Ronald Ellis, PhD; Professor Gerald Heckman, University of Manitoba, Faculty of Law; Professor France Houle, Associate Dean (études de 1er cycle), Faculté de droit, Université de Montréal; Professor Pierre Issalys, Faculty of Law, Laval University; Professor Laverne Jacobs, University of Windsor, Faculty of Law; Professor Emeritus David Mullan (Queen’s University); Professor Pierre Noreau, Faculty of Law, University of Montreal; Professor Lorne Sossin, Osgoode Hall Law School, York University; Professor Martine Valois, Faculty of Law, University of Montreal; Daniel Mockle, vice-doyen, Faculté de science politique et de droit, UQAM

The following two paragraphs were in the original paper but were edited out of the published article to meet Le Devoir’s word limit: 

In recent times, in an effort to improve public confidence in appointments to adjudicative tribunals, Canadian governments have sometimes resorted to a merit-based screening process in which the qualifications of candidates are certified before their names are allowed to be considered. However, while such merit-based screening processes may ensure that appointees are generally better qualified, they do not meet concerns about the priority given thereafter in the appointment process to partisan and patronage considerations. Providing the responsible Ministers with an unranked list of a greater number of qualified candidates than there are positions to be filled still allows the government to pick from that list those with the closest connections to the governing party.

For example, the merit-based process set up by the Federal government to appoint members of the new Social Security Tribunal in 2013 allowed the responsible minister freedom to fill a maximum of 70 positions from an unranked list of 162 candidates all certified by the screening committee to be qualified. Neither the criteria for the Minister preferring one qualified candidate over another on that list, nor the process for doing so, are known 

RE

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