SST Backlog – Clearing the Backlog – Admin Law Pitfalls in Government Intervention

 

Jason Kenney Vows To Clear Social Security Tribunal Backlog By This Summer —  Lee-Anne Goodman, Canadian Press, February 6, 2015.

When an adjudicative tribunal backlog has become such a political embarrassment that a government feels it must itself assume the responsibility for accelerating its elimination, there are inherently a number of pitfalls for which parties and the advocacy community need to be on the look out.

In his promise to eliminate the 11,000-case backlog “by the summer” – let’s say within seven months – Minister Kenney referred to a “two-part action plan”.  Since the administrative law issues are clearest with respect to the second part of that plan, I will deal with it first.

THE MINISTER’S ACTION PLAN, SECOND PART

The second part of the plan is for the Minister “to work to put [tribunal] service standards in place to improve the tribunal … to ensure that Canadians have access to a fast and fair appeals process…”.

There is no mention of increasing the number of the tribunal’s adjudicators.

Given the stated goal, one has to expect that such “service standards” will include limits on the tribunal adjudicators’ allowed hearing times, limits on their decision-writing times, limits on the proportion of their cases for which they may grant an oral hearing, and quotas specifying the number of final decisions they must issue each month or year.

THE VALENTE ISSUE

The setting of such standards by the Minister puts the tribunal even further in breach of the Valente requirements for tribunal independence; in particular in breach of what, in an earlier post, I have referred to as the “third rail” of independence – the requirement Valente called variously “institutional” independence or “administrative” independence or “adjudicative” independence.

The requirement is defined in Valente, paragraphs 47 to 52.  Its traditional expression is to be found in paragraph 52, viz:

 The third essential condition of judicial independence … is in my opinion the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function.

THE SPEED VERSUS JUSTICE ISSUE

There is also the concern about what happens to justice when “fast” becomes a tribunal’s watchword.   The UK Court of Appeal has recently provided us with a timely word of caution.

In Re S-W [2015] EWCA Civ 27, Sir James Munby, President of the Family Division of the UK Court of Appeal, offered this warning about the dangers of speeded up litigation:  

[54] We are all familiar with the aphorism that ‘justice delayed is justice denied’. But justice can equally be denied if inappropriately accelerated. An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, para 40, “Justice must never be sacrificed upon the altar of speed.”

PUBLIC, SERVICE STANDARDS

One thing for which the advocate community should be on the look out is SST service standards that are set but not shared with the parties.  This is information to which parties appearing before the tribunal are entitled – and not just through an access to information application.

Government-driven, unreasonable or arbitrary institutional constraints on the time an adjudicator is allowed for hearing and deciding a justiciable issue, or on the manner in which the hearing of such an issue is to be conducted, have the potential for grounding judicial review arguments based on the law of bias, independence, fettering, and general fairness.

THE MINISTER’S ACTION PLAN – FIRST PART

The first part of the Minister’s two-part action plan is, according to the report, the deployment of government lawyers to offer settlements to appellants in the backlog.

The nature of the settlements that will be offered is unknown, but because of the immense power-imbalance inherent in these negotiations there is an obvious potential for abuse.

To appellants who have waited four or five years to have their appeal from the rejection of their disability pension claim heard, and who are enduring the severely diminished quality of life involved in doing without the pension in the meantime, an offer of something substantial now will be difficult to resist – indeed impossible – when the alternative offered is to wait another indefinite time and risk the inevitable uncertainties of an appeal decision.

There are, therefore, inherent reasons for the advocacy community and others to be especially alert to the fairness of the settlement offers.

And, assuming that the settlements will not be offered to all waiting appellants, there is also the question of the fairness of the process for choosing those who will be given a settlement offer and those who will not be given that opportunity.  Who will be making those choices and what are the criteria?

RE

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