Social Security Tribunal – Chair and Vice-Chairs Status “Intrinsically Precarious”

 Social Security Tribunal Chairperson and Three Vice- Chairpersons Serve at Pleasure

In 2009, the Federal Court ruled that Linda Keen’s “designation” as President of the Canadian Nuclear Safety Commission constituted an appointment at pleasure – an appointment which made her status as President “intrinsically precarious”; the government was legally entitled to dismiss Ms. Keen from the office of President at any time without cause.*

The section of the Nuclear Safety and Control Act  pursuant to which Ms. Keen  was appointed President read as follows:

10 (3) The Governor in Council shall designate one of the permanent members to hold office as President.  (Emphasis added.)

The Federal Social Security Tribunal’s constitutive statute is the Department of Human Resources and Skills Development Act, SC 2005, c. 34.   Section 45(2) of that Act reads:

The Governor in Council designates one of the full-time members to hold office as the Chairperson and three full-time members to hold office as Vice-chairpersons, one of whom is responsible for the Appeal Division, one of whom is responsible for the Income Security Section and one of whom is responsible for the Employment Insurance Section.  (Emphasis added.)

The Canadian Nuclear Safety Commission is a regulatory agency.   The Social Security Tribunal is an adjudicative tribunal.  With the offices of the SST Chair and Vice-Chair not capable of being seen to be independent under the Valente principles, how can the Tribunal itself be seen to satisfy the Valente requirement of institutional independence for adjudicative tribunals?

Of course, there is nothing to be done unless it should turn out that there is a constitutional requirement of independence applicable to adjudicative tribunals.  But why did Parliament think it was necessary – or right – to have such an important adjudicative tribunal even arguably non-compliant with the rule of law’s requirement that adjudicative tribunals be institutionally independent?

*  Keen v. Canada (Attorney General), 2009 FC 353 (CanLII), at paras. 48 and 53.

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