What Can be Done About It
In this post, Ellis begins to examine the legal bases for court-challenges of the Ford executive branch’s regressive policies concerning the administration of the Province’s adjudicative tribunals and their members.
The Common Law Issues
The author’s System in Crisis post – the first post in this series on administrative justice in the Ford era – describes a set of Ford government policies that leaves incumbent tribunal adjudicator members without security of tenure, and without financial security. The same policies leave their tribunals with their competence reduced, without institutional financial security, possibly without control over the administration of their judicial functions, and lumbered with unacceptable and ever-increasing backlogs.
These policies will leave Ontarians with a large segment of their administrative-justice system increasingly unavailable to them in a meaningful way and, when available, a system in whose independence, impartiality and competence they will have no reason for confidence.
In a democratic, rule-of-law based society, this is simply not a tolerable situation.
What can be done? What are the legal remedies?
Common-law-based Judicial Review
With these new policies in place, neither the tribunals nor their members can be seen to satisfy the common-law procedural fairness principles of independence and impartiality – the principles rooted in the Valente/Matsqui jurisprudence.
That being the case, each decision of these tribunals would now appear to be open to judicial review based on the lack of independence and impartiality of the tribunals and their members.
Ocean Port Caveat
But – one can hear the question – what about Ocean Port? Has the SCC not been seen to say that the Constitution does not protect the judicial independence of administrative tribunals, even including adjudicative tribunals? And, yes, that is true. There is well-known, Ocean-Port based jurisprudence that has been seen to hold that the judicial independence of adjudicative tribunals and their members is not constitutionally protected, apparently only because they are not formally designated “courts” or “judges”. But that jurisprudence is once more being challenged in current BC court proceedings in which the Chair of the BC Review Board is asserting constitutional protection for the independence of his Board, so, for the moment, we can wait and see. Meanwhile, this post is not proposing remedies that are dependent on a constitutional protection for the judicial independence of the tribunals or their members. The possibility of constitutional challenges will be addressed in a later post in this Ford Era series.
The common-law legal point is this: unless there is legislation that unequivocally overrides the common-law principles, the constitutional issue does not arise. Absent such legislation, the common-law principles still govern, and decisions of adjudicative tribunals and tribunal members whose status does not conform to those principles are not valid and can be challenged on that basis through judicial review applications.
Of course, the executive branch is authorized by statute to appoint and re-appoint adjudicative tribunal members to term-lengths of its choosing, and to set their compensation levels.
However, it is a classic principle of statutory interpretation that, in the absence of language that makes the intention unequivocally clear, legislatures are not to be taken as having intended to override significant existing rights, or established common-law principles. [See authorities cited in Unjust by Design, at pp. 213/214.] And there is nothing in the executive branch’s legislated appointments powers that could be said to unequivocally authorize the executive branch’s use of those powers to destroy the security of tenure of tribunal adjudicators; nothing to authorize an administrative practice, or policy, of exercising those powers arbitrarily, without regard for the term-expired adjudicator’s performance or for the recommendation of his or her tribunal’s chair, and, certainly nothing to support the threatening of incumbent adjudicators with being black-listed for appointments to other tribunal positions, should the government arbitrarily choose not to accept their next, merit-based re-appointment petition.
(Note in Passing: Neither is there legislation that authorizes the executive branch to abuse its powers of determining compensation levels for adjudicators or the funding of their tribunals to such an extent as to impair the adjudicators’ or the tribunal’s financial security, nor to impose standards of adjudication administration that are incompatible with the principles of fair hearings; nor to resort to selection or appointment processes that are not merit-based and competitive as ATAGAA requires; nor, arguably, to ignore considerations of adjudicative competence.
However, consideration of the latter points may be left for another day while we focus for now on the more-straightforward, security-of-tenure issue.)
To summarize: by the adoption of this policy of reserving to itself the discretion to exercise its re-appointment powers arbitrarily (and by refusing meritorious re-appointments in accordance with that policy) the Ford government’s executive branch has, in law, demonstrably destroyed the independence and impartiality of tribunal adjudicators, and there is no Ontario legislation that unequivocally authorizes that destruction. In short, the government’s re-appointments policy has rendered tribunals’ adjudicative decisions – all of them – invalid.
Common-law Challenges to the Re-appointment Policy Itself
The foregoing independence/impartiality argument would support a challenge to the validity of a particular tribunal decision through a judicial review of that decision brought by an unsuccessful party. But it will be more useful as a practical matter to to have a public-interest litigant challenge the re-appointments policy itself as it applies to Ontario adjudicative tribunals. And to do that one might turn to the “proper purpose” principle, famously applied by the SCC originally in Roncarelli, and more recently, and especially more relevantly, in the so-called “retired Judges” case – Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour),  1 S.C.R. 539.
The proper-purpose principle holds that an administrator’s exercise of an otherwise clear statutory power – such as an appointments power – must be for a purpose that is congruent with the goals of the statute and based on relevant and not irrelevant considerations.
Speaking for the majority of the SCC and referring to Justice Rand’s dictum in Roncarelli that the exercise of a statutory discretion “is to be based upon a weighing of considerations pertinent to the object of the [statute’s] administration”, Mr. Justice Binnie observed in C.U.P.E. that “[t]he principle that a statutory decision maker is required to take into consideration relevant criteria, as well as to exclude from consideration irrelevant criteria, has been reaffirmed on numerous occasions”. He cites in support of that proposition: Oakwood Development Ltd. v. Rural Municipality of St. François Xavier,  2 S.C.R. 164, and Madam Justice Wilson’s reliance in that case on Lord Denning’s statement in Baldwin & Francis Ltd. v. Patents Appeal Tribunal,  A.C. 663, at p. 693, that “the failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration”.
In C.U.P.E., Justice Binnie also cites Madam Justice Wilson’s observation in Reference re Bill 30, an Act to Amend the Education Act (Ont.),  1 S.C.R. 1148, at p. 1191, that “[I]t is well established today that a statutory power to make regulations is not unfettered. It is constrained by the policies and objectives inherent in the enabling statute…. It cannot be used to frustrate the very legislative scheme under which the power is conferred”. He also refers to Suresh’s reference to the “established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors”.
The majority of the Court in C.U.P.E concluded that, in appointing retired judges who lacked labour-relations experience, and who had no acceptability in the eyes of union members, to the positions of interest-arbitrators, the government excluded those highly relevant criteria from the selection process thus rendering the exercise of the appointments power invalid.
Here the comparable argument would be that, in adopting the policy of reserving the right to arbitrarily decline to re-appoint incumbent but term-expiring, meritorious, chair-recommended adjudicators, the Ford government has adopted an appointments policy that, like the policy of appointing retired judges as interest-arbitrators, is invalid.
It is invalid because it ignores relevant and highly significant considerations – viz:
- the adjudicators’ demonstrated competence;
- the chair’s experience-based recommendation;
- the adjudicative tribunals’ operational need to have meritorious members re-appointed as a routine matter;
- the incumbent, re-appointment-seeking member’s inherent advantage in the ATAGAA-mandated competitive appointments process, over inexperienced candidates; and
- the system’s need for adjudicators to feel secure in their tenure – i.e., to have reason to be confident that good performance will ensure a re-appointment when their current, fixed-term appointment comes to an end.
The policy is also invalid because it is predicated on other considerations that may be shown to be irrelevant, or in a justice context unacceptable, or unknown.
And it is invalid, finally, because, in Madam Justice Wilson’s words, it “[frustrates] the very legislative scheme under which the power is conferred”.
(En Passant – Orangutan Legislation
It would be well, however, to acknowledge one obvious weakness in any challenge that relies on the enforcement of common-law principles. Experience tells us that in the absence of a constitutional requirement of judicial independence, any government with a majority in the legislature is capable of enacting, sharply focused, categorically-clear legislation devoted to eradicating the systemic impact of any rule-of-law-based court decision it finds inconvenient.
“Orangutan” as a label for legislation that makes mockery of the rule of law originated with the Toronto union-labour bar, circa 2002, when it was used by members of that bar to describe the Ontario government’s legislation authorizing the Labour Minister to appoint anyone as an interest arbitrator tasked with determining the collective bargaining agreements for workers in the hospital services fields, explicitly whether or not they had any labour-relations experience or training, and whether or not they were at all acceptable to either or neither of the parties. This legislation was known to have been enacted as a direct response to the Ontario Court of Appeal’s decision in C.U.P.E. that the government had no authority to appoint retired judges as interest arbitrators in the health services field. As was said at the time in the labour-union bar, under that legislation the government could appoint an orangutan as an arbitrator and no one could object.
It is a self-explanatory and aptly risible label for any legislation that explicitly overrides jurisprudence in a manner that is egregiously disrespectful of the rule of law.
Thus, as a practical matter, the systemic impact of a court decision based on the common law of judicial independence may prove to be short-lived. However, it will at least have had the merit of achieving a useful result in the particular case. And, if subsequently, the government were to resort to orangutan legislation to override the court ruling from a systemic perspective, there would still be the advantage of the government having to make its rule-of-law-defeating, and patronage enhancing intentions perfectly clear.)
Next post: What if the unwritten, constitutional principle of judicial independence did apply?