FOLLOW-UP TO THE EPIPHANY ARTICLE
In the Epiphany article, posted on this website on August 14, 2020, and available here, the author concluded that until legislators establish an independent process for renewing the appointments of adjudicator members of adjudicative tribunals serving renewable terms, Ontario’s adjudicative tribunals would continue to exercise adjudicative mandates that are constitutionally invalid. He came to that conclusion on the footing that in Ontario the law will be found to hold that adjudicators appointed to renewable terms cannot satisfy the law’s requirement of independence unless the renewal decisions are made by a body that is independent of the government.
In that article he directed readers to find the argument in support of that view in his book, Unjust by Design, under the heading “The Rule of Law Implications of the Arbitrary Removal Power” at pages 89 to 93.
Now, for the convenience of those few readers who happen not to have that book ready to hand, those pages are set out below. The “footnote” numbers, beginning at ‘147’ are the endnote numbers from the book. Please note that the book uses the label “judicial tribunal” to refer to tribunals that in Ontario carry the label, “adjudicative tribunals”
Unjust by Design … (2013) UBC Press, pages 89 to 93:
The Rule-of-Law Implications of the Arbitrary Removal Power
That the consciousness of his or her vulnerability to idiosyncratic removal does have an impact on a tribunal adjudicator’s decision-making was demonstrated in a vivid way when, in the summer of 2009, federal Immigration Minister Jason Kenney made a series of public comments implying that refugee claims by members of the Roma community were in his opinion bogus. Before he made these comments, the success rate for Roma refugee appeals to the Immigration and Refugee Board (whose members’ reappointments are known to depend on the whim of the Minister) was 97 percent. By April 2010, the success rate had dropped to 0.09 percent.147
- See the report by Toronto Star immigration reporter Nicholas Keung concerning an application to the Federal Court by two Roma families for judicial review of the IRB’s rejection of their refugee appeal. The application alleges bias and relies on the Minister’s comments and the statistical evidence concerning the impact of those comments on the rejection rate of Roma appeals: Toronto Star (30 November 2010) A12.
For members who serve in full-time positions, or who serve on part-time but regular schedules and for whom such service provides their primary source of income, an unexpected denial of their reappointment not only disrupts their careers but also involves a significant financial penalty. Since governments believe that members have no right to notice of removals, they also believe that they have no right to payment in lieu of such notice, and the removals occur without compensation.
In the real-world context, where every two, three or five years tribunal members must petition a government for the gift of a reappointment in circumstances where reappointment decisions are known to be entirely discretionary, to be typically made in camera in an arbitrary manner and often refused for unknown reasons, and where the denial of such petitions means personal career disruption and financial hardship, the independence of such members is obviously in fact and in appearance entirely illusory. It is disingenuous to claim otherwise.
Moreover, the length of the term in question does not alter the argument. Time passes, and eventually a five-year term becomes a five-month, a five week, and then a five-day term with the member still hearing cases and making decisions that have the potential to alienate the government on which he or she is relying for the gift of another appointment.
Chief Justice McMurtry’s phrase “idiosyncratic removal” is in fact a precise description of commonplace events in Canada’s administrative justice system that have had the cumulative effect of fixing in the minds of all judicial tribunal members a pervasive awareness of the real possibility of reprisals and personal career damage if they make decisions that inconvenience the government or its friends. It is an embarrassing thing to have to say, but that awareness makes a reasonable apprehension of bias a fixed, generic reality for all parties appearing before judicial tribunals in Canada’s administrative justice system.
Harking back to the Supreme Court’s three fundamental principles of the rule of law as described in its 2005 decision in Imperial Tobacco 148, it is apparent that a system for reappointing judicial tribunal adjudicators and chairs merely by executive branch fiat cannot be reconciled with the principle of supremacy of law over “officials of the government.” Neither is such a system “preclusive of the influence of arbitrary power”; rather, it is inclusive of that power. And when the state brandishes the threat of removal over the “judges” adjudicating disputes about the lawfulness of the government’s determination of citizens’ rights, the relationship between the state and the individual cannot be said to be “regulated by law.” Thus, this administrative justice regime of arbitrary reappointments and idiosyncratic removals is plainly incompatible with the fundamental postulates of our constitutional structure.
- British Columbia v. Imperial Tobacco Canada Ltd.,  2 S.C.R. 473.
And yet, my professional colleagues will ask, has not the Supreme Court itself found to the contrary? In Valente and later, particularly in Régie 149, the Court has held that the security-of-tenure component of judicial independence is satisfied, as far as tribunal members are concerned, apparently by any fixed-term appointment.150 All that is necessary, the Court has said, is that a member’s appointment not be open to termination during the fixed term, except for cause. Fortunately, this opinion has not been given in cases where the impact on the independence of tribunal adjudicators of an arbitrary reappointment regime was directly at issue; moreover, this precise issue has been dealt with authoritatively elsewhere.
- 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool),  3 S.C.R. 919 [Régie].
- See, e.g., R. v. Valente,  2 S.C.R. 673 [Valente] at para. 31, and especially 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool),  3 S.C.R. 919 [Régie] at para. 67.
In its 2001 decision in Barreau du Montréal 151 – a decision with regard to which leave to appeal to the Supreme Court of Canada was refused – the Quebec Court of Appeal held that, for the Tribunal administratif du Québec (TAQ) to satisfy Quebec’s Charter of Human Rights and Freedoms’ requirement of tribunal independence and impartiality, it was not sufficient that its members have security of tenure during their fixed terms of appointment. They must also be the beneficiaries of a fair, objective, and independent reappointment process. Addressing the Quebec government’s argument, based on Régie, that a fixed term, guaranteed to be free of intervention during the term except for cause, was all that was required, Barreau distinguished Régie 152 on the basis that in Régie the Supreme Court was dealing with a “multi-functional and essentially regulatory agency,” not one that (like TAQ) “exercises a purely adjudicative function.”153 Régie could have been distinguished just as well, however, on the grounds that in that case the effect of an arbitrary reappointment regime on the independence of the tribunal was not at issue, and not argued.
- The Attorney General of Québec v. Barreau du Montréal,  J.Q. No. 3882 (C.A.), leave to appeal refused (2002), 2002 CarswellQue 2078 (S.C.C.), reconsideration refused (2002), 2002 CarswellQue 2683, cited to J.Q. (C.A) [Barreau].
- Régie, supra note 149.
- Barreau, supra note 151 at para. 174.
Surprisingly, given the long Canadian tradition to the contrary, Quebec’s 1996 administrative justice legislation that created TAQ had not left the reappointment of TAQ members solely to the discretion of the Quebec government. Instead, it had provided for a precedent-setting, transparent reappointment process. It had placed reappointment decisions in the hands of a special renewal committee, a committee that included, however, the president of TAQ and a member of the Minister of Justice’s staff .154
- Section 49 of the Act Respecting Administrative Justice, Q. 1996, c. 54, provided for the renewal of a term of office to be “examined” according to a procedure to be established by regulation. Subsequently, the regulation required the forming of a committee that would “determine” whether the member still fulfilled the necessary criteria for appointment and recommend to the Minister of Justice whether or not the appointment should be renewed. See Regulation Respecting the Procedure for the Recruitment and Selection of Persons Apt for Appointments as Members of the Administrative Tribunal of Québec and for the Renewal of their Term of Office, Order-in-Council 317-98, 18 March 1998 (1998) 130 G.O.Q. II 1800, Division IX, Renewal of Terms of Office, s. 25-29. The third member of the committee was a “representative of the legal community.”
Justice Dussault, writing in Barreau for a unanimous Court of Appeal, held that the presence of the TAQ president and the Minister of Justice’s representative on the renewal committee meant that the legislated renewal process did not meet the Valente requirements of judicial independence. He also held that with members having no right to participate in the process – no right to notice of the grounds of complaint and no opportunity to respond – the process did not meet the procedural fairness requirement either. 155
- Barreau, supra note 151 at paras. 172-90.
Significantly, however, having made this decision, the Court of Appeal did not then accept the argument by TAQ members 156 that for the tribunal to meet the constitutional requirement of independence their appointments needed to be life-tenured, like the appointments of provincial court judges. Acceptance of that argument would have taken Quebec’s administrative judicial tribunals a long way down the road to judicialization. Instead, the Court held that fixed terms are valid provided that the reappointment process is merit-based, transparent, fair, and independent.157 The Quebec National Assembly eventually responded to Barreau by amending its legislation to remove the TAQ president and the representatives of the Minister of Justice from the renewal committee and to give TAQ members the right to be heard by the committee.158
- The TAQ members’ association and a number of individual members had intervened in the decision to challenge the fixed-term appointments as being incompatible with the requirement of independence.
- Barreau, supra note 151 at paras. 170-90. But compare the judgment of the Military Court in v. Corporal R.P. Joseph, 2005 CM 41, where it was held that the appointment of military judges to fixed renewable terms was not compatible with the requirement of independence and impartiality. In the latter case, no consideration was given to the possibility of a fair, merit-based, and objective renewal process. See, more recently, the decision of the Quebec Superior Court in Association des juges administratifs de la Commission des lesions professionnelles, et al. v. Procureur general du Québec, 2011 QCCS 1614 (CanLII) (1 April 2011), which holds that fixed terms of adjudicative tribunal members are incompatible with the principles of judicial independence, distinguishing Barreau on this point. Whether the Quebec Court of Appeal’s affirmation in Barreau that fixed terms are compatible with the requirements of independence provided there is a merit-based, open, fair, and independent reappointment process will be reasserted in this appeal remains to be seen. [Author’s Follow-up Note (October 2013): The Court of Appeal allowed the appeal, agreeing with its decision in Barreau that appointments to renewable fixed terms satisfied the Valente requirements of independence provided the renewal decisions were made by an independent committee. See: Associationdes juges administratifs de la Commission des lésions professionnelles c. Québec (Procureur général), 2013 QCCA 1690.]
- An Act Respecting Administrative Justice, S.Q., c. J-3, as amended to 13 May 2003, contains the applicable post-Barreau provision. See s. 49 dealing with appointment renewals.
The latter is a precedent the Supreme Court might well embrace. If the security-of-tenure aspect of the reappointment issue is perceived by the courts as presenting them with the unhappy choice between, on the one hand, security of tenure during a fixed term followed by the traditional, arbitrary reappointment regime, or, on the other, life-tenured appointments 159, one can readily surmise that the courts, wary of being accused of judicializing tribunals, might opt for the former. Barreau now presents a third option, and when the opportunity does arise for the Supreme Court to address the rule-of-law implications of having judicial tribunal adjudicators with fixed terms routinely subjected to arbitrary reappointment processes and, often, idiosyncratic removals, it will find an acceptable model of a merit-based, transparent, fair, and independent process ready at hand in the post-Barreau version of Quebec’s Administrative Justice Act.160 Moreover, for the Court to ensure the security of tenure of judicial tribunal adjudicators by requiring reappointment decisions to be made by independent reappointment committees would not be very different from what the Court has already done to protect the financial security of judges by requiring the intervention of independent compensation committees. 161
- As recommended, for instance, in the Ratushny Report, supra note 18, recommendation 38 at 62.
- Dussault and L. Borgeat, Administrative Law, 2d ed., vol. 1 (Toronto: Carswell, 1985). It may be noted, however, that subsequent to the 2003 post-Barreau amendments to the renewal committee provisions, the National Assembly finally opted for life-tenured appointments for TAQ members. See An Act to Amend the Act Respecting Administrative Justice, S.Q. 2005, c. 17, s. 2. The amended Act now provides for TAQ members “to hold office during good behaviour.”
- In Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice),  3 S.C.R. 3 [PEI Reference] (previously cited).
It is true that Barreau was addressing a quasi-constitutional requirement of judicial independence. The Quebec Charter of Human Rights and Freedoms explicitly requires tribunals to be independent and impartial. However, by virtue of the now settled law that the Valente principles define both the constitutional and common law requirements of judicial independence 162, Barreau ranks as both a constitutional and common law authority. Outside of Quebec, Barreau is, of course, no more than persuasive authority. Nevertheless, given that it is a unanimous decision of the Quebec Court of Appeal written by Justice Dussault, the same René Dussault who prior to his appointment to the Quebec bench was one of Canada’s pre-eminent administrative law experts 163, it is an authority that might well be thought especially persuasive.
- This principle is conveniently summarized by the Alberta Court of Queen’s Bench in Canada Safeway Limited v. Alberta Human Rights and Citizenship Commission, 2000 ABQB 897 (CanLII) at para. 66: “In Régie, and the Supreme Court’s earlier decisions in Ruff o v. Conseil de la Magistrature 1995 CanLII 49 (S.C.C.), (1995), 130 D.L.R. (4th) 1 (S.C.C.) at para. 38 (“Ruff o”) and Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (S.C.C.),  1 S.C.R. 3 at para. 62 (“Matsqui”), the Supreme Court held that the administrative law principles of natural justice and the duty to be fair incorporate the same principles of adjudicative independence and impartiality as s.23 of the Quebec Charter and ss.7 and 11(d) of the Canadian Charter of Rights and Freedoms. Therefore, the Supreme Court of Canada decisions dealing with these principles, whether under the Quebec Charter, administrative law, or ss.7 and 11(d) of the Charter, are applicable.”
- René Dussault, a principal author of, for instance, of the administrative law treatise: Dussault and Borgeat, supra note 160.
Until the independence of administrative judicial tribunals is confirmed to be a constitutional requirement, the executive branch will no doubt continue to see the Valente principles as inconvenient obstacles to its control of judicial tribunals – obstacles that can be overridden when necessary by legislation. In the meantime, absent such legislation, the principles apply as if there were a constitutional requirement, and there is currently no Canadian legislation that unequivocally authorizes an arbitrary reappointment regime for members of administrative judicial tribunals. Moreover, where the applicability of the constitutional requirement of judicial independence is clear – and it is already clear with respect to tribunals that fall within ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms, s. 23 of the Quebec Charter of Human Rights and Freedoms, perhaps the due process requirements s. 1 of the Alberta Bill of Rights,164 and within ss. 2(e) and (f) of the Canadian Bill of Rights – arbitrary reappointment regimes are open to challenge by reliance on the Barreau analysis, whether or not they are seen to have been authorized by legislation.