In 2001, the Quebec Court of Appeal held in Barreau du Montréal* that the appointment of members of Quebec’s Administrative Tribunal (TAQ) to fixed renewable terms would be incompatible with the Valente principles of judicial independence – and thus in breach of s.23 of the Quebec Charter – unless the renewal decisions were made by an independent body in a fair process.
The Quebec legislature responded by adjusting the structure of its renewal committees including the exclusion from the renewal committees of Tribunal chairs and of any representative from the government.
Later, however, the legislature took the next step and provided for appointments to TAQ to be life-tenured – ie., conditional only on good behavior. (It did this, it should be noted, despite advice from me that it was a bad idea – see Ellis, “Misconceiving Tribunal Members: A Memorandum to Quebec (2005) 18 Can. J. Adm. L. & Prac. 189.)
However, the members of another of Quebec’s major tribunals – Quebec’s workers’ compensation appeals tribunal ( la Commission des lésions professionnelles – CLP) – continued to be appointed to five-year renewable terms but with the renewal decision now in the hands of an independent committee pursuant to a fair process in conformity with the renewal requirements specified by the Court of Appeal in Barreau du Montréal.
CLP members were of the view, however, that their renewable 5-year terms did not provide sufficient independence; that the legislated, life-tenured terms of their colleagues at TAQ now represented the standard of independence that should pertain for members of Quebec judicial tribunals generally and for them in particular.
In due course, their association – Association des juges administratifs de la Commission des lésions professionnelles (an association, by the way, for which there are, significantly, no counterparts in other Canadian administrative justice jurisdictions ….) applied to the Quebec Superior Court for a declaration that the renewable-terms provisions in their constitutive statute were unconstitutional.
The application also claimed that the use of CLP’s performance evaluations as a factor in determining whether or not a member should be renewed would be incompatible with the independence requirement.
(Their application to the Court also raised independence issues about the manner in which their compensation was determined and other compensation related independence issues which I will not report on here.)
In 2011, the Superior Court agreed with the Association’s submissions and declared the offending statutory provisions to be unconstitutional. The government appealed.
The Court of Appeals decision ** was released on October 2, 2013.
Renewable Terms are not an Independence Problem, Provided …
The Court holds that renewable terms do not offend the principle of independence and impartiality so long as the renewal process satisfies the requirements of independence and fairness specified in the Barreau du Montréal decision.
(Which, it may be noted, the CLP renewal process satisfies, but, significantly, none of the renewal regimes in other Canadian jurisdictions do.)
The Court Strikes a Blow for Competence
Reliance on a Tribunal Chair’s fair and appropriate performance evaluations (as structured and defined by Article 9 of the Quebec government’s Remuneration Regulations) in the renewal committee’s decision-making process is not, the Court said, incompatible with independence.
And, in support of its view that a fair and appropriate performance evaluation was an acceptable and important factor to be considered in a renewal committee’s decision-making process, the Court of Appeal offered this (para 64, informal translation):
It is worth emphasizing that competence, as well as independence is a condition sine qua non of a proper administration of justice, including administrative justice.