As we ponder the question of whether the Ford government’s assault on the security of tenure of adjudicators in Ontario’s administrative justice system is constitutionally valid, and await the decision of the BC Court of Appeal in Walter v. BC[1], a reminder of the constitutional argument would seem to be timely.
To that end, I am taking the liberty of providing a convenient link to the 2009 article “Ocean Port or the Rule of Law” co-authored by myself and my colleague Mary McKenzie and published in the Canadian Journal of Administrative Law & Practice (22 C.J.A.L.P. 267).
In that article, readers will find a thorough and, in my respectful submission, highly persuasive doctrinal argument in support of the proposition that the relevant SCC jurisprudence in fact supports constitutional protection for the independence of adjudicative tribunals and their members.
Of particular interest is the article’s demonstration of the fact that the Supreme Court has itself distinguished the contra-indicator, Ocean Port, as a decision that pertains only to regulatory agencies.
It is a 34-page article, but if the issue interests you – as in Ontario it now certainly should – it is, if I may say so myself (and with thanks to co-author, Mary McKenzie), a great read ….
The first nine pages are largely preface; for the substantive constitutional argument, start at page 276.
See: Ocean Port or the Rule of Law, SREMEM article as published
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[1] The case in which Bernd Walter, Chair of the BC Review Board, is seeking to establish, inter alia, that the judicial independence of the Board and its chair and members has the constitutional protection afforded by the unwritten, constitutional principle of judicial independence first identified by the SCC in PEI Provincial Judges Reference.
You will remember that Mr. Walter lost in the BC Supreme Court (2018 BCSC 1304) when that Court held that Ocean Port had ruled out any possibility that that principle was applicable to any administrative tribunal that was not called a “court” or to any administrative-justice adjudicator who was not called a “judge”. The appeal was heard early in April and the decision is pending.