MODEL ADMINISTRATIVE JUSTICE ACT UPDATE

As of March 15, 2022, the version of Ellis’s Model Administrative Justice Act posted on September 23, 2021, has been replaced by a revised and expanded “Final Variant”version now published in volume 35 of the Canadian Journal of Administrative Law & Practice at pp. 53-67.

HERE ARE THE KEYNOTE FEATURES OF THE MODEL ACT AS REVISED AND EXPANDED IN THE “FINAL VARIANT” . [The keynote features that are new in the Final Variant are identified by bolded script.]

The Model Act is intended to be the mainstay of an administrative justice system comprised of adjudicative tribunals that are demonstrably expert, optimally competent and inclusive, implicitly independent, and admired on all sides for the impartiality and quality of their decisions, and for the accessibility, fairness, fitness, proportionality, and timeliness of their process.

The Act defines “adjudicative tribunal” and “tribunal” to mean:

an entity or individual office holder that is not designated a “court” or “judge” but authorized by statute to exercise an adjudicative, rights-based resolution  function respecting disputes arising under a statute that the Council determines to be a function that would otherwise have fallen within the jurisdiction  of the courts, but not including individuals or panels of individuals commonly known as “arbitrators” whose statutory authority to exercise their adjudicative function is contingent on their being selected for the adjudicative role by agreement of the parties to the adjudication.

Note the exclusion of “arbitrators”.

Note the reference to the authority of the Council [see below] to determine which entities and office holders fall within the definition. 

The Model Act requires the selection of candidates for appointment as tribunal members or chairs to be based on qualifications-driven, competitive, assessments by expert selection committees free of partisan or patronage influences, and projected term-renewals of incumbent members and chairs to be conditional solely on continued good performance, judged objectively.

At the system’s centre, the Act installs a non-partisan, independent “Administrative Justice Council” with guaranteed funding, whose Board of Governors is structured to ensure both the Council’s independence and its expertise.

The Council is positioned as the system’s supervisor with the ultimate authority regarding term-renewal decisions, and as a principal advisor to the government on administrative justice issues, and as the system’s inspector general, with extensive investigative powers and the responsibility for reporting to the public concerning persistent systemic problems.

The Act is structured as pre-eminent, quasi-constitutional legislation applicable to all adjudicative tribunals established by current or future statutes, subject only to explicit statutory overrides, with inspection and reporting powers that survive such overrides.

Other aspects of the Model Act that are novel and may be of particular interest include:

  • Providing for the government’s tribunal-hosting function to be assigned to a new “Ministry of Administrative Justice”, thus removing the conflicts of interests inherent in the Attorney General’s role as tribunal host.  
  • Reducing the government’s role in the appointment of tribunal members and chairs to the acceptance or rejection of the one candidate recommended by a non-partisan selection committee with a request for reconsideration or a rejection having to be accompanied by written reasons;
  • An objective process for the setting of compensation levels for tribunal chairs and members;
  • Measures obliging the government to maintain tribunal rosters at established complements subject only to the removal of redundant positions in accordance with specified lay-off procedures.
  • Guarding against the impact of delays in the renewal process by automatiic extension of existing terms until the renewal processes are complete. 
  • Provisions regarding the administration of tribunals [see new Part VII), notably including making the tribunal’s chair its Chief Executive Officer and sole report to the Ministry; establishing tribunal staff as tribunal employees not members of the public service but providing for equivalency of wages and benefits ; preventing tribunal dependency on government support services by requiring all administrative functions and support  services to be provided by tribunal employees; authorizing tribunals to invoke Council mediation of budget disputes; and ensuring the independence and public availability of tribunal annual reports.  

To download the original version of Ellis’s Model Act go back to his September 23, 2021 Post. For the revised and expanded version see the March 2022 issue of CJALP, vol 35 at pages 53 to 67.

 

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