Administrative Justice – Radical Restructuring of Federal Adjudicative Tribunals

THE NEWS

An omnibus government bill was tabled yesterday (March 28) in the House of Commons (Bill C-31[1]) entitled “An Act to Implement Provisions of the Budget Tabled in Parliament on February 11, 2014 and Other Measures”.

Among the “other measures” in that Bill you will find a radical redesign of the administrative structures of ten federal administrative tribunals, including adjudicative tribunals such as the Canada Industrial Relations Board, the Canadian Human Rights Tribunal, and the Social Security Tribunal.

Section 376 of the Bill enacts a new Act, the Administrative Tribunals Support Service of Canada Act.

That Act creates a new administrative entity, “The Administrative Tribunals Support Services” (to be called the “Service”), headed by a “Chief Administrator” with deputy minister status, reporting to the Minister of Justice.

INITIAL IMPRESSIONS

The effect of the new legislation in broad terms is to transfer the “CEO”  designation and responsibilities from each of the tribunals’ Chairs to the Service’s Chief Administrator and to assign to the Chief Administrator the responsibility for “the provision of the support services and the facilities that are needed by each of the administrative tribunals to exercise its powers and perform its duties and functions in accordance with the rules that apply to its work”. (See section 10).

All administrative staff working in the tribunals will now become part of the Service’s staff.

The Act clarifies what responsibilities are to be left for the tribunals’ chairs in section 14 which reads as follows:

 For greater certainty, the chairperson of an administrative tribunal continues to have supervision over and direction of the work of the tribunal

The extent of the changes and their impact on the various tribunals will take days to unpack from the transitional provisions and the Consequential Amendments which are spelled out in 104 separate sections of the Bill (377 – 481).

The items of interest that I have spotted so far are the transfer of the CEO functions and the responsibility for tribunal administration referred to above; the transfer of the responsibilities as “accounting officers” under the Financial Administration Act from the chairs to the Chief Administrative Officer, and the cancellation of the tribunals’ status as part of the “core public administration” under the Financial Administration Act and their replacement in that role by the Service.  As to what the Financial Administration Act changes actually signify, I have no clue – need some help.

To ease your way, may I point out what it took me a while to discover which is that the list of tribunals which qualify as “administrative tribunals” for purposes of the Act (as defined in s. 2) is to be found in the Schedule to the Act on the last page of the Bill – page 359.

However, the list of tribunals that are “administrative tribunals” for purposes of the transitional provisions (sections 377-381) is the Schedule’s list plus the Public Service Labour Relations and Employment Board.  Why? I could not suss it out in the time I had.

There will be many issues, including I expect some labour relations issues, and some access to information issues, but of most interest to me is the independence issue.

The Chief Administrator who is to become the CEO of all these adjudicative tribunals is to hold office “at pleasure” during renewable fixed terms of up to five years.  See s. 5 of the Act.

An enlightening comparison would be with what the UK did when in 2006 it transferred all administrative services provided to tribunals by portfolio ministries to a separate entity called the “Tribunals Service” (which has now morphed into the “Courts and Tribunals Service”).  The UK government’s structural arrangements devoted to ensuring the independence of the “Service” from the government were – and are – elaborate.

The above comes from my first quick read of what is very complicated.  So, more to come, no doubt.  I would be glad to hear from anyone with operational experience with the Federal administrative structures and/or with the particular tribunals affected as to how this will impact.

This reform package appears on the face of it to qualify as “historic” – but  not, I think, in a good way.

The Act cuts the “hosting” ties between the tribunals and their portfolio departments, which from an independence and impartiality perspective is a good thing; but then puts the provision, control and supervision of the tribunals’ administrative resources entirely in the hands of one individual who is to serve “at pleasure” during his or her fixed, but renewable, five-year term …….

Can we talk?

(And, now,  see subsequent posts on this site on the same subject dated March 31, 2014 and April 7, 2014.)

RE

[1] Bill C-31 (41st Parliament, 2nd Session).  See Division 29, at pages 262 to 296, sections 376-482.  The Bill was tabled in the House on March 28, 2014 first reading.

 

 

 

 

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