In Unjust by Design, I asked this question: Are courts justified in applying a “deference as respect” standard of review to dependent and biased tribunals?
I thought this was an important question (I still do), but I also believed that it had never been asked before. I now discover that I was wrong. David Mullan, Gerald Heckman, and Lorne Sossin saw the issue eight years before I got to it.
The Unjust by Design passages read as follows (page 289):
As confirmed in Dunsmuir v. New Brunswick, the Supreme Court’s deference to the decision of tribunals is now thought by the Court to be based on Dyzenhaus’s “deference as respect”:
‘We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons off ered or which could be offered in support of a decision.’ *
My question is this: how can the courts “respect” tribunals that are exercising judicial functions when the tribunals’ structured bias is, in law, clear for all to see? How can a court apply a reasonableness standard of review to the exercise of a judicial function, or deem a tribunal decision emerging fromthat exercise to be “reasonable,” when the decision in question has been made in the exercise of a judicial function by a body that is in law transparently neither independent nor impartial?
Even if Canadian legislatures were seen to be constitutionally empowered to create such bodies and authorize them to exercise judicial functions, can it be right – is it constitutionally sound – for our courts to allow themselves to be complicit in the bypassing of rule-of-law requirements in the exercise of judicial functions? Are they constitutionally entitled to defer tothe decisions of adjudicative bodies where core rule-of-law structural requirements are known to be absent?
Heckman, Sossin and Mullan
In 2005, Gerald Heckman and Lorne Sossin published an extensive and wonderfully scholarly article in the McGill Law Journal in which they contrasted the European approach to ensuring the independence of adjudicative tribunals to the Canadian approach. They found the Canadian approach wanting for, among other things, failing take into account the appointments process for adjudicators.
The article was written pre-Dunsmuir, when the “pragmatic and functional” approach to determining the standard of review still ruled, and in considering the question of “whether [Canadian] judicial deference to the near exclusive determination of the decision maker falls short of international human rights standards where those decision makers are not independent” [emphasis added], the authors offered this possible solution:
One way to remedy this deficiency could be to add to the pragmatic and functional approach a criterion under which the court actually considered the relative independence of the administrative body as part of its decision to defer.
David Mullan comes into it because in their article, Heckman and Sossin thank him for raising this possibility in his comments on a draft of their paper.
Reference: Gerald Heckman and Lorne Sossin, “How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards? The Case of Independence”, 50 McGill L. J. 193 (2005), footnote 26o (page 250) and accompanying text.
Gerald Heckman: Faculty member, University of Manitoba, Robson Hall, Faculty of Law
David Mullan: Professor Emeritus, Queen’s University, Kingston Ontario
Lorne Sossin: Dean, Osgoode Hall Law School, York University, Toronto Ontario
(Unjust by Design does cite this article but only on the point that international law requires adjudicative tribunals to be independent and impartial. See page 132.)