Administrative Justice In The Ford Era – No. 3 In The Series

The Ford Administrative Justice Series to Date

The first of this series of posts on administrative justice in the Ford era (Déjà vu All Over Again) began with a description of the starting point – the largely respected administrative justice system that had developed in Ontario, post Harris and before Ford – and then described the retrograde changes the Ford administration has embraced, especially in regard to the adjudicative tribunals that have been transferred to the new super tribunal – Tribunals Ontario.

The second post in the series (What are the Common-Law Remedies?) addressed the common-law bases for challenging the tribunal decisions themselves on the grounds that the Ford policies are incompatible with the tribunal adjudicators’ security of tenure and thus put adjudicators in breach of the common-law requirement of independence and impartiality. 

That post also described the basis for a generic challenge of the arbitrary re-appointments policy in reliance on the “proper purpose” principle.

The Constitutional Principal of Judicial Independence

What Remedies Would It Support?

In this, the third in the series of posts on Ford’s administrative justice policies, the topic is the remedies that would present themselves if it were found, after all, that adjudicative tribunals are protected by the unwritten constitutional principle of judicial independence, as is currently being argued in the current appeal proceedings in Walter v. BC.  

And, for the constitutional skeptics out there: no, Ocean Port is not the final answer – not yet.

Introduction

This post is premised on the view that the Ford administrative justice policies are constitutionally invalid – not because they put the tribunals and their members in breach of a Charter-right (although in some instances, they may), but because they put them in breach of the so-called, unwritten constitutional principle of judicial independence as first identified by Chief Justice Lamer in his majority judgment in the SCC’s decision in PEI Reference, [1997] S.C.R. 3. 

[Note: the PEI Reference case had numerous parties and interveners and, in citing it, the literature uses many different short-forms.  In this post, the reference will be to “PEI Provincial Judges Reference” or “PEI Reference” for short (the latter being the cite the author used in Unjust by Design).

A constitutional challenge based on the latter principle is of particular interest in the current political climate because, unlike breaches of Charter rights, breaches of that principle cannot be “fixed” by a legislature’s resort to the “notwithstanding clause”.  The latter clause only authorizes a legislative override of Charter rights. 

It is, of course, true that the question of whether the unwritten constitutional principle applies to any adjudicative tribunals is a question that is very much in issue.  The view that, in its decision in Ocean Port, the SCC has ruled-out that principle’s application to any administrative tribunal, adjudicative or otherwise, is currently ascendant.[1]  However, the justice-policy argument in support of the application of the principle to adjudicative tribunals cannot really be gainsaid [2], and the doctrinal argument distinguishing Ocean Port is equally persuasive. [3]  Moreover, these arguments are once again before the courts in the current BC legal proceedings in Walter v. BC where the judicial independence of the BC Review Board is at stake.[4]

NOTES

[1]  See, most significantly, the decision of the Saskatchewan Court of Appeal in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61 (CanLII).

[2] For support for that assertion, more credible than this independence-obsessed post author will be seen to provide, see the following passage from Gerald Heckman and Lorne Sossin’s “How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards? The Case of Independence”, 50 McGill L. J. 193 (2005), at page 244:

In our view, none of Ocean Port, Bell or Ell provides a satisfactory account of why the Court opts for a formalist over a functionalist approach to the requirements of independence in the administrative sphere. In Ocean Port, Chief Justice McLachlin does not adequately distinguish the principle at issue in the Provincial Court Judges Reference from the principle at issue regarding the independence of adjudicative tribunal members. Both are creatures of statute charged not with “implementing policy” but with resolving disputes by making findings of fact and law on an impartial basis. Moreover, both bodies may interpret the Charter and provide remedies to aggrieved parties. It is difficult to sustain a constitutional divide between these two types of adjudicative bodies; and is it not clear how administrative justice is served by attempting to do so. Put differently, the question the Court should have asked is whether there could ever be any legitimate policy rationale behind a government seeking to influence an adjudicative tribunal.

See also the opinion of The Honourable Mr. Justice Louis LeBel offered in his keynote speech to the CLEBC Administrative Law Conference in Vancouver in 2012.  (His speaking notes were published in the February 13, 2013, issue of the Canadian Journal of Administrative Law & Practice, at pages 51-66.)

In this speech, Justice LeBel provides an “overview” of the “fundamental role of natural justice and procedural fairness in Canadian administrative law” with a particular focus on the “key values of impartiality, independence, and access to a fair hearing in the law of judicial review”. In dealing with the issue of “Independence” (page 55 to 57), he addresses the significance of the SCC’s decision in Ocean Port relative to the question of “institutional independence in adjudicative tribunal settings” (page 56) and ends that reference with this suggestion (at page 57):

 But, given the importance of administrative justice, we should perhaps question whether administrative adjudicative administration [sic] should not be given a stronger constitutional protection after all.  Canadians will deal with administrative action and justice more often than with the civil or criminal courts in their daily life.  [Emphasis added.]

Justice Lebel concludes his comments on independence with this (also at page 57):

… The goal of strengthening the independence of administrative tribunals is not only to eliminate a reasonable apprehension of bias, but also to create a reasonable apprehension that the system works efficiently and transparently, while being accessible to every citizen.   This requires a model for administrative justice that is independent, yet responsive to the particular demands of its unique environment.

[3]  Ellis, S. Ronald, and Mary E. McKenzie. “Ocean Port or the Rule of Law? The Saskatchewan Labour Relations Board” (2009) 22 Can. J. Admin. L. & Prac. 267; and Unjust by Design, at pp. 215-222.

[4] Walter v. British Columbia (Attorney General), 2018 BCSC 1304

To resume:

The BC Supreme Court has held in Walter v. BC  that Ocean Port effectively ruled out the application of the principle to any adjudicative body not called a “court” or a “judge”.  However, that decision is now on appeal to the BC Court of Appeal (of which more in a future post).  And the credibility of this challenge to Ocean Port has been enhanced by the support of the well-known, Ottawa organization, Democracy Watch.  DWatch has sought and been granted intervener status in support of the appellant and in support of the view that constitutional protection of the judicial independence of adjudicative tribunals constitutes a core democratic principle. 

This post does not address the constitutional argument (see later post).  Instead, its starting point is the assumption that the constitutional principle identified in the PEI Reference would, at last, in fact be found to apply to protect the judicial independence of the adjudicative tribunals now incorporated in Tribunals Ontario.  And it examines how, if that were so, that principle’s application to those tribunals might impact the Ford government’s administrative justice policies.

If Applicable, What Would the PEI Principle Require?

In the first place, if applicable to these adjudicative tribunals, the unwritten principle of judicial independence would not require a level of independence equal to the independence of a section 96 judge or court – thus not life-tenured appointments.  This was made clear by the SCC in its decision in Bell Canada.  [Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 – see para. 29.]

But what it would require is that both the adjudicative tribunals and their members conform to the procedural fairness principles of judicial independence as set out originally in Valente and thus to have: (1) financial security, (2) security of tenure, and (3) administrative control.

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Financial Security – for Tribunal Adjudicators

If the principle applied, the law is clear that the government would be required to establish an independent “remuneration commission” mandated to investigate comparable compensation levels and to recommend to the government compensation adjustments for the adjudicative tribunals’ members.  Those recommendations would not be binding on the government, but they would be public, and if a government were to refuse to implement the recommendations the courts would require the government to present a reasonable justification.

Financial Security – for the Tribunals

When we turn to the question of how the principle might impact the financial security of the tribunals themselves, we are on much less certain ground. There is no precedent for having an independent body reviewing the sufficiency of an adjudicative tribunal’s funding.   Nevertheless, the logic is persuasive. The law is clear that the principles of independence apply both to the individual adjudicator and to the institutions themselves, and it is not a far step to recognize that if the need for independence requires an individual adjudicator’s level of compensation to be subject to independent review, the same must surely hold for the tribunals themselves.

In addressing concerns about the independence of Quebec’s Administrative Tribunal (TAQ), an Executive Director of the Barreau du Quebec once put the question directly, if a bit colloquially, when he asked how TAQ could be said to be truly independent when every year it must “get on its knees [to the government] to obtain its budget?”  [See June 7, 2013, issue, The Lawyers Weekly.]  It is a good question.  And former visitors to this site will not be surprised to be reminded that in Unjust by Design’s reform proposals one finds an answer – an independent, administrative justice “Audit Board”.  [Unjust by Design, page 259.]

Of course, the courts themselves have not solved this problem, so one should not hold one’s breath.

Security of Tenure – for Tribunal Adjudicators

As we have seen, the application of the PEI Reference principle would not require tribunal adjudicators to have life-tenured appointments.  However, where the appointments are for renewable fixed terms – which is true in all cases – the principle requires that the re-appointment decisions be objective and merit-based and be made not by the government but by an independent “Renewal Committee”.  The Quebec Court of Appeal has affirmed the latter requirement to be an integral part of the Valente, procedural fairness principles on two occasions. **

[** See: The Attorney General of Québec v. Barreau du Montréal, [2001] J.Q. No. 3882 (C.A.), leave to appeal refused (2002), 2002 CarswellQue 2078 (S.C.C.), reconsideration refused (2002), 2002 CarswellQue 2683), and Association des juges administratifs de la Commission des lésions professionnelles c. Québec (Procureur général), 2013 QCCA 1690.

Security of Tenure as it relates to the Tribunals’ Institutional Independence

A tribunal’s institutional independence is rooted in its chair’s independence. If a tribunal’s chair has no sense of his or her own independence from government, or no commitment to the tribunal’s arms-length relationship to government or to the bureaucracy, the tribunal’s members will not feel the independence they need to feel.  In any tribunal, the institutional culture of independence emanates from the chair.

So far as one knows, the courts have not yet had occasion to consider the issue of what structural arrangements would be regarded by the courts as essential for objectively ensuring an adjudicative tribunal chair’s security of tenure in conformance with the PEI Reference principle. However, one can be sure that chairs of adjudicative tribunals appointed to short, fixed terms, and whose re-appointment is in the government’s discretion – a discretion that everyone knows the government believes can be exercised arbitrarily without regard to merit, and secretly without notice, cause, or explanation, and without any right to compensation – would not be considered to have the quality of security of tenure that would be congruent with the principle.

It may be noted in the latter regard that the Chair of the new Tribunals Ontario was appointed by the Ford government to a one-year term, which expires on December 31, 2019.

Presumably, the protection of an independent Renewal Committee would be seen to be as necessary for chairs as it is for members.  

In Ontario, the ATAGA Act requires that the person appointed as chair of an adjudicative tribunal must also be a member of that tribunal [Section 14(5)], presumably appointed through the merit-based and competitive selection process mandated by the Act for members and requiring the qualifications the Act specifies for members of that tribunal.   The Act does not however speak to the process for appointing members to be chairs, except that, like a member, a chair must be appointed by an Order-in-Council.  In that OIC the chair’s term of appointment would no doubt need to be specified.  It is, however, not unheard of for chairs to be a fixed-term, tribunal member with their designation as chair being an at-pleasure designation only; indeed, in the Federal jurisdiction that is the usual practice.

However, it is trite law that at-pleasure appointments are incompatible with security of tenure, and, from the perspective of a tribunal’s institutional independence, this would seem to be as true for chair appointments or designations as it is for member appointments.

Administrative Control

In Valente, Justice Le Dain defined the “administrative control” component of the requirements of judicial independence as “institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function”.   

Thus, when the Ford government’s budget-cutting leads to across-the-board backlogs and politically – and, perhaps, legally – unacceptable delays, one can expect government pressure on tribunals to manage their adjudicative processes more efficiently.  Should that pressure take the form of directives requiring, for example, arbitrary limits on hearing times or decision-writing times, and the like, the constitutional validity of those directions would be open to challenge as being in breach of the administrative control aspect of the principle of judicial independence.

Assuming such directions were not clearly authorized by legislation, they would also be the basis for a judicial review of decisions that had been subjected to such directions on the grounds of the directions being incompatible with the common-law procedural fairness principles of judicial independence, as well as perhaps being incompatible with the fair-hearing principles as well.  

Outro

For those who believe that our administrative justice systems are, indeed, to coin a term, unjust by design, and  in dire need of fundamental reform, and who have had to accept that there is no possibility of such reform until the SCC finally recognizes that the constitution does require that those who exercise judicial functions must be and be seen to be independent and impartial whether or not they are called “judges’ or “courts”, these are interesting and hopeful times.  The juxtaposition of the Ford government’s plundering of Ontario’s post-Harris administrative-justice-system, with the constitutional-law challenge of Ocean Port afoot in the legal proceedings underway in Walter, is fortuitous.  Both events are occurring at a moment in our constitutional history when the extent of the courts abandonment of the rule of law in our administrative justice system has reached a embarrassing nadir.  That combination of circumstances has brought us to a constitutional tipping point, where the applicability of the principle of judicial independence to the exercise of judicial functions by persons and bodies that legislatures choose not to call “judges” or “courts”, will have to be finally decided (in Walter) in the face of the administrative-justice disaster in Ontario – a disaster enabled by the view that Ocean Port has ruled out any constitutional protection for adjudicative tribunals or their members. 

RE