it is easily argued that because of the nature of the executive branch’s administrative justice strategies and tactics, most judicial tribunals outside of Quebec fail to conform to one or more of the common law prerequisites for judicial independence.
Chapter 7 of Unjust Design is entitled “Meanwhile, a Toolkit for Litigators” and its premise is that while we wait for the Supreme Court to confirm that the constitution requires judicial tribunals and their members to be independent and impartial, there are common law grounds on which to challenge the validity of judicial tribunal decisions that do not appear to have been within the ken of our activist litigators.
Since many of these strategies and tactics are not in fact authorized by unequivocally clear statutory provisions, these failures to conform with the common law may well render the decisions of these tribunals all invalid, without the necessity of challenging them on constitutional grounds. Let`s begin with the absence of the Valente requirement of security of tenure.
No Security of Tenure
Judicial tribunal adjudicators are appointed to short, renewable terms and the reappointment regimes are universally in breach of the spirit of the Valente principles as well as in flagrant breach of the objective, merit-based, and fair renewal process requirement arguably established in the decision of the Quebec Court of Appeal in The Attorney General of Québec v. Barreau de Montréal [2001 CanLII 20651].
(I am indebted to a Francophone colleague for correcting “Barreau du Montréal, as it appears in the book – and in an earlier post – to “Barreau de Montréal”. )
The Ontario Court of Appeal’s 2012 decision in Ontario Deputy Judges’ Association v. Ontario (Attorney General) [2012 ONCA 437 (CanLii)] may also be of some help here. In that decision, the Court of Appeal held that if the renewal of the Ontario Small Claims Court Deputy Judges’ three-year terms had been in the discretion of the “Executive Branch” rather than of a Senior Judge, that would have been a renewal arrangement that would not have satisfied Valente’s security-of-tenure condition of judicial independence.
Of course, Small Claims Court Deputy Judges are not technically members of a judicial tribunal, but given the nature of their assignments and their three-year, renewable terms, it is difficult to see any relevant point of distinction.
The proper purpose argument
It may be possible to show that particular reappointment decisions do not adhere to the proper purpose requirement for the exercise of a statutory discretion as established in Roncarelli v. Duplessis and revisited in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour).
Apprehension of Bias
The ubiquitous practice of idiosyncratic removals has created an environment throughout the administrative justice system in which judicial tribunal members are known to fear reprisals for decisions that are unpopular with the government or its influential friends. It can therefore be argued that in such a system any objective and fully informed observer would have a reasonable apprehension of bias in the decision making of any judicial tribunal member.
Discharge for Cause – Absence of Procedural Protection
All judicial tribunal members are subject to discharge for cause without the protection of a statutory guarantee of an independent, objective, and full hearing – the protection that Valente explicitly requires for all tribunal adjudicators.
Part-time judicial tribunal members have no security of tenure and no financial security of any kind. They are paid on a per diem basis and their continued assignment to cases is effectively dependent on the tribunal chairs’ continuing to find their decisions satisfactory on a case-by-case basis. As noted in an earlier post, it can in fact be argued that in Ocean Port the Supreme Court acknowledged that part-time adjudicators do not conform to the common law requirement of judicial independence.
This is an area of common-law vulnerability, however, that only works where the tribunal`s constitutive statute does not explicitly authorize part-time or at-pleasure appointments. But, of course, any statute that does authorize such appointments for a judicial tribunal is vulnerable to the constitutional law challenge.