Administrative justice: partisan appointments vs. democratic principles

Last Saturday, I had serendipitously read two articles in succession.

The first was Luis Millan’s piece in the March 14th issue of The Lawyers Weekly on the recently released Study of Quebec’s 15 adjudicative tribunals which had reported that those tribunals and their members could not be seen to be independent.  The Study had concluded that partisan and patronage considerations were often influential factors in the government’s selection of members for those tribunals and in the government deciding whether to renew incumbent members.

The second piece was Professor Paul Daly’s abstract of his article entitled “Unreasonable Interpretation of the Law”.  He had posted the abstract on March 14 on his well-known (and excellent) blog, Administrative Law Matters.

What caught my attention in the abstract of Professor Daly’s article was that the article was presenting an argument for more robust court deference – radically more robust deference – to statutory interpretations by tribunals.

Reading the two articles together prompted me to think about the connection between patronage or partisan tribunal appointments and our democratic principles and to submit a comment about that connection to Professor Daly’s blog.  The comment was posted.

I confess to being inordinately pleased with myself in the formulation of that comment, and, so, just in case there may be some visitors to this site who might not find the comment in Administrative Law Matters, I am taking the liberty of repeating it here.  It reads as follows:

The juxtaposition of [the] article, “Unreasonable Interpretation of Law”, with the Houle-Noreau-Valois-Issalys five-year study of 15 Quebec adjudicative tribunals published a month ago, frames for me an important question: How can advocates of more deference to tribunals by courts – or more assured deference – square their position with the undoubted fact that, in Canada, including apparently Quebec, adjudicative tribunals and their members are not independent of the executive branch of government, cannot be seen to be impartial, and cannot be counted on to be competent?

With respect, leaving rights legislated by the legislative branch routinely open to partisan distortion through motivated, and unchecked, interpretation by the executive branch’s friends and allies is surely not compatible with democratic principles.

Professor Daly pointed out that my comment was actually pertinent to the question of whether there should be any deference at all, not to the quality of the deference.  And that is, of course, true.

Those of you who have read Unjust by Design will know that I view court deference to tribunal decision-making to be an essential feature of an authentic administrative justice system, but hold that it is a constitutionally viable feature only if the tribunals in question comply with the common law principles of adjudicator independence and impartiality.

It should be evident, it seems to me, that courts may not validly, or appropriately, extend deference based on “respect” to tribunals that are in law biased.

See Unjust by Design, pages 289-90.


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