One of Unjust by Design’s (the book’s) principal concerns is with the administrative justice system’s structures and the fact that those structures are egregiously incompatible with the rule of law and the Constitution.
Both the common law of judicial independence and the unwritten constitutional principle of judicial independence require tribunals exercising judicial functions and their members to be and to be seen to be independent and impartial.
(For the convincing case in support of the independence and impartiality of judicial tribunals being a constitutional requirement as well as a common law requirement, see the book, pages 215-228.)
Judicial tribunals and their members are self-evidently not independent. As far as their impartiality is concerned, there is no reason to allege that tribunals and their members are in fact partial, which is to say biased. They are in fact not independent, but, as for actual bias, most people who accept the responsibility of exercising a statutory judicial function may be expected to perform with integrity and strive to put personal biases to one side.
However, any knowledgeable, objective observer of our administrative justice system has absolutely, self-evident grounds for reasonably apprehending a conflict of interest or bias in all judicial tribunals and their members – which, of course, is the law’s test for bias in the exercise of a judicial function.
No Institutional Independence
Why does the book say judicial tribunals have no institutional independence?
The tightly-knit structural integration of judicial tribunals with government structures is the antithesis of independence. The level of de facto control that governments have over their judicial tribunals is no different in substance than the control governments have over their own ministries, and the judicial tribunals’ dependency on government is even greater than the dependency of line ministries. (See the book, pages 99-113.)
Moreover, even the Valente principle that a government must not have “control over aspects of administration bearing directly on the tribunals’ exercise of its judicial functions” is routinely flouted. See, for example, Ontario’s Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA), and particularly its provision for Ministerial control of tribunal “performance standards”.
(For the book’s account of the Ontario Bar Association’s report expressing concern about the degree of government control over Ontario adjudicative tribunals specified by ATAGAA, see pages 101-102.)
Tribunal Adjudicators are not Independent nor, in Law, Impartial
Why does the book say that individual judicial tribunal adjudicators and tribunal chairs are not independent nor, in law, impartial?
The common law and the constitution require tribunal adjudicators and chairs to have security of tenure, and they have none.
Some appointments are still at-pleasure appointments, which speaks for itself, but almost all chairs and members outside of Quebec are appointed to fixed, short, renewable terms – most typically 3 to 5 years – and are the subject of reappointment regimes that are purely arbitrary. Such regimes cannot possibly be squared with any credible concept of independence. (See the book, Chapter 1, and, in particular, pages 76-93, and 286-287.)
The common law and the constitution requires tribunal adjudicators and chairs to have financial security, and they have none.
The evidence for this is pervasive. The government’s arbitrary and self-interested control of adjudicator compensation may be seen fully displayed in the facts in the Ontario Deputy Judges litigation. Deputy Judges are Small Claims Court Judges appointed to fixed, renewable three-year terms and, in the 2005 and 2006 decisions of the Ontario Superior Court and Court of Appeal in their case, the Ontario government’s historical control over – and signal indifference to – their compensation levels is made plain for all to see.
Of course, some will say, Deputy Judges are judges not tribunal appointees, and that is a difference. I would be interested to see what could be persuasively said to mark the difference, but, in any event, if this could happen to the compensation of junior “judges” imagine in what straights tribunal adjudicators must be, respecting their compensation.
(See Deputy Judges Assn. v. Ontario (Attorney General) (2005), 78 O.R. (3d) 504 (Sup. Ct.) and Deputy Judges Assn. v. Ontario (Attorney General) (2006), 80 O.R. (3d) 481 (C.A.))
The 20-year freeze on judicial tribunal chair and member compensation levels in Ontario from 1987 to 2007 also speaks volumes to the lack of financial security for tribunal chairs and members. (See book, page 25.)
Its Even Worse for Part-Time Adjudicators who are the Large Majority of our Adjudicators
All of the foregoing is true for both full-time and part-time adjudicators, but, of course for part-time adjudicators the dependence and perceived bias is even worse. Part-time adjudicators are paid on a per-diem basis and their continued receipt of paid assignments are perceived to depend on their not putting themselves on the wrong side of the tribunal chair on a decision-by-decision basis.
And it is a noteworthy feature of our administrative justice system that the large majority of our tribunal adjudicators are part-time
(An aspect of the SCC decision in Ocean Port that is generally overlooked is that the BC Court of Appeal held that part-time appointments are incompatible with the common law’s security of tenure requirement (and thus the constitutional security of tenure requirement) and the SCC did not disagree. It merely noted that the B.C. legislation effectively authorized part-time appointments and was not, in the Liquor Appeal Board’s case, subject to any constitutional constraint.)