As we contemplate the implications, for the independence and impartiality of federal adjudicative tribunals, of their being taken over by the “Service” – the new branch of the Department of Justice being created by Division 29 of Bill C-31 – it will be important to focus on the tribunal functions that, while normally characterized as “administrative”, are so integrated with a tribunal’s adjudicative function as to be subject to the same imperatives of independence and impartiality as the adjudication function itself. For ease of reference I will refer to the latter functions as “adjudicative administrative functions”. It is a long list which will be found at the end of this post.
The question is: which of the tribunals’ adjudicative administrative functions does Bill C-31 remove from the chairs’ hands and entrust to the Service’s Chief Administrator – the Chief Administrator whose at-pleasure relationship with the government will be, as the Federal Court has said, implicitly precarious? Or perhaps more to the point, which of these, if any, does Bill C-31 leave in the hands of the chairs?
The answer to that question will depend largely on how section 14 of the new Act would be interpreted. The section specifies that the chairs will continue to have “supervision over and direction of the work of the tribunal“. (Emphasis added.) The phrase “the work of the tribunal” falls to be interpreted in the context of the Bill’s otherwise broad transfer of the tribunals’ administrative and management functions – including the chairs’ CEO functions – from the chairs to the Chief Administrator, as well as the transfer to the Service of all tribunal administrative staff as well as any persons who can be described as “occupying a position” in the tribunals.
INDEPENDENCE IN A PARENT’S BASEMENT
In Unjust by Design, in discussing his experience as chair of the Ontario Workers’ Compensation Appeals Tribunal (1985-1997), the author noted the important fact that all of WCAT’s administrative functions were in-house, under the tribunal’s own control. In that connection, he made this observation:
… a judicial institution cannot be independent without being in all respects its own person – a fully realized adult person. In my view, WCAT’s vibrant esprit de corps and culture of insouciant independence could not possibly have emerged had it not been such a person. (Page 14)
It is obvious that an adjudicative tribunal cannot be its own fully realized adult person – cannot be and act independently – if it is living in its parent’s basement, which is where, it would seem, the federal government’s adjudicative tribunals will be living if Bill C-31, Division 29, has its way.
ADJUDICATIVE ADMINISTRATIVE FUNCTIONS INCLUDE:
- writing and/or approving the tribunals’ mission statements and codes of conduct;
- recruiting, evaluating and selecting candidates for appointment as tribunal adjudicators;
- deciding which cases are to be assigned to which adjudicators;
- evaluating the performance of the tribunal’s adjudicators;
- recommending which tribunal adjudicator appointments should be renewed;
- determining the tribunal’s time standards for hearing cases and writing decisions;
- designing and supervising the Consolidated-Bathurst-type structures and procedures for institutionalizing the tribunal’s decisions;
- determining the tribunal’s hearing and pre-hearing rules and practices;
- recruiting, selecting, instructing, and supervising the tribunal’s lawyers, including those who may be assigned to reviewing and critiquing the tribunal adjudicators’ draft decisions, and perhaps those who will appear in the tribunal’s hearings to “assist” the tribunal’s adjudicators, and those who may be assigned to represent the tribunal on judicial review applications;
- establishing the criteria for determining whether cases are to be dealt with in an oral, face-to-face hearing or in document-only, or telephone-only, or video-conferencing “hearings”;
- deciding the policy respecting the tribunal’s commitment to written reasons and identifying the resources that need to be allocated to the writing of reasons;
- determining how the tribunal’s reasoned decisions are to be publicly reported:
- perhaps selecting those tribunal decisions to be identified as the tribunal’s “significant” decisions, thus impacting on the content of the tribunal’s jurisprudence;
- choosing and engaging the “experts” the tribunal needs to assist it with its activities;
- identifying the resources to be assigned to the training of tribunal adjudicators and to the continuing education of tribunal adjudicators;
- influencing the content and goals of tribunal adjudicator training and education programs;
- imparting to the tribunal’s adjudicators the tribunal’s judging culture (adjudicative cultures, whether they be cultures of steady impartiality or what have sometimes been referred to as cultures of denial, are effectively set by the tribunal leadership, wherever that leadership comes from);
- determining the nature, transparency and reliability of the tribunal’s caseload statistics;
- selecting the chair’s executive assistants and the chair’s and members’ administrative assistants, and supervising them and evaluating their performance;
- preparing, presenting and defending the tribunal’s budget;
- determining the form and content of the tribunal’s annual report;
- determining the extent and usefulness of the tribunal’s “library”;
- deciding upon the location, distribution, and design of the tribunal’s offices and hearing rooms.
* This post builds on the two previous posts on the same subject – Bill C-31’s radical restructuring of federal adjudicative tribunals. See the posts dated March 29 and March 31, 2014.