As of March 15, 2022, this version of Ellis’s Model Act has been replaced by a revised and expanded “Final Variant”version now published in volume 35 of the Canadian Journal of Administrative Law & Practice at pp. 53-67.
A MODEL ACT
Experience in Ontario’s administrative justice system in recent years has reminded us of the fragility of justice in such systems when they find themselves in the hands of governments that see adjudicative tribunals as vessels of partisan power and patronage opportunities.
That experience has once more demonstrated the need for foundational, quasi-constitutional legislation that excludes partisan tampering and patronage abuse, and this Model Act is offered as legislation fit to that purpose.
The author claims no expertise in the drafting of legislation and in the hands of such experts this Act might look somewhat different. And, of course, the “Explanatory Notes” which have been inserted to help put the legislation in context for first-time readers would not be part of an actual Act.
The author is indebted to the work of his colleagues in Tribunal Watch Ontario for much of the information about the state of Ontario’s administrative justice system and the systemic weaknesses that a foundational Act would need to address, and especially to Voy Stelmaszynski for his insightful comments on an early draft.
THE MODEL ACT’S KEYNOTE FEATURES
The Model Act is intended to be the mainstay of an administrative justice system comprised of adjudicative tribunals that are demonstrably expert, optimally competent and inclusive, implicitly independent, and admired on all sides for the impartiality and quality of their decisions, and for the accessibility, fairness, fitness, proportionality, and timeliness of their process.
The Act defines “adjudicative tribunal” and “tribunal” to mean:
an entity or individual person that is not designated as a “court” or “judge” but is authorized by an Ontario statute to exercise an adjudicative function that would otherwise be exercised by a court.
The Act requires the selection of candidates for appointment as tribunal members or chairs to be based on qualifications-driven, competitive assessments by expert panels free of partisan or patronage influences, and projected term-renewals of incumbent members and chairs to be conditional solely on continued good performance, judged objectively.
At the system’s centre, the Act installs a non-partisan, independent “Administrative Justice Council” with guaranteed funding, whose Board of Governors is structured to ensure both the Council’s independence and its expertise.
The Council is positioned as the system’s supervisor with the ultimate say in term-renewal decisions, as a principal advisor to the government on administrative justice issues, and as the system’s inspector general, with extensive investigative powers and the responsibility for reporting to the public concerning persistent systemic problems.
The Act is structured as pre-eminent, quasi-constitutional legislation applicable to all adjudicative tribunals established by current or future statutes, subject only to explicit statutory overrides, with inspection and reporting powers that survive such overrides.
Other aspects of the Model Act that are perhaps novel and may be of particular interest include:
- Reducing the government’s role in the appointment of tribunal members and chairs to the acceptance or rejection of the one candidate recommended by a selection committee with a rejection having to be accompanied by written reasons;
- An objective process for the setting of compensation levels for tribunal chairs and members; and
- Measures obliging the government to maintain tribunal rosters at established complements subject only to the removal of redundant positions in accordance with specified lay-off procedures.