Tribunal Independence: Standing up to Politicians – A Case in Point

Facts

On March 21, 2013, the BC Provincial Agriculture Land Commission refused an application for permission for a non-agricultural use of acreage located in the Agricultural Land Reserve in the area of Fort St. John.

After receiving a request from the Mayor of Fort St. John to reconsider its decision “post haste” and another similar request from the RCMP Ride Committee, the Commission Chair and two Members, finding themselves in the area on other business, arranged with the applicant for a site visit on May 27.  On that visit, the Mayor and the local MLA Elect (Pat Pimm) both turned up uninvited and unannounced to express their support for the application.

On June 6, 2013, the land owner formally applied to the Commission for a reconsideration of its refusal of his application.

Six days before that,  on May 31, the Commission received a letter from Mr. Pimm  expressing his “formal support” of the application for non-agricultural use of the subject property and his “concern of your decision to refuse the application”.

Then on June 6, the Commission received an email from Mr. Pimm’s Constituency Assistant advising that Mr. Pimm had asked her to contact the Commission “on behalf of and in support of” the application for non-farm use of the subject property.

On July 18, the Commission met to consider the application for reconsideration.

Meanwhile,  Pimm became BC’s Minister of Agriculture, and on July 25th the Commission received an inquiry from his Ministerial Assistant “looking for some info on this situation”.  The Commission’s Executive Director responded that the application had been reviewed by the Commission and the outcome would be known in “a couple of weeks”.  By email of the same date, the Assistant advised that the Minister would “like to know the outcome”.

The next day, the Executive Director sent the Ministerial Assistant a passage extracted from the Commission’s policy on the role of elected officials in its decision-making process in which the point is made that a reconsideration decision is an adjudicative decision which requires the Commission to act in a way that is “procedurally fair, impartial and independent” and that it could not, therefore, advise the Minister of the “outcome” until the parties had been notified.

The Commission declined the reconsideration request.  Its decision is dated August 19, 2013, and may be found at http://www.alc.gov.bc.ca/application_status/Docs/53049d2a.pdf.

The Commission’s recital of the above facts may be found in paragraphs 18 to 32 of the decision.

Standing up

With respect to its concern about the communications it had received from the politicians, the Commission did not mince words.   The unminced words appear in paragraph 56 of the decision and read as follows:

56.       This leads us to a final point we wish to express in these reasons, which concerns the representations we have received from the Mayor of Fort St. John and the local Member of the Legislative Assembly with regard to this matter. In our respectful view, those representations were not appropriate. They could create the impression for both the Commission and the public that these officials were attempting to politically influenced the Commission. Where, as here, those officials began their representations before the Commission had even received a reconsideration application and involved unannounced personal attendance at a Commission site visit, and when those representations made no reference to the requirements of the legislation, the perception is even more concerning. It is precisely for this reason that the Commission has issued a policy statement on the role of elected officials in applications to the Commission:

 However, the ability of elected officials to advocate for constituents has limits. Recent experience has shown for example that it is inappropriate for a Cabinet Minister, even with the most honourable of motives, to attempt to influence a court[5] or administrative tribunal[6] with regard to a particular civil, criminal or regulatory decision. Even a telephone call to a judge asking when a decision would be released has resulted in a ministerial resignation. These examples show that any perception of attempted direct political influence over adjudicative decision making undermines the confidence that parties and the public are entitled to have in the administration of justice to the courts and administrative tribunals.

The concern about improper influence is not limited to Cabinet Ministers. Whenever an elected person with political power – whether that person is a Cabinet Minister, an MLA, a Mayor or Councillor – attempts to influence the outcome of a court or tribunal decision, there is a reasonable perception (both for the public and the adjudicator) that the elected person has been brought in from the outside precisely to use their power to influence the outcome of the dispute that is supposed to be decided on the evidence in the judgment of the decision-maker. This creates a potential ethical difficulty for the parties and tribunal on the basis that the attempted influence has in fact or perception tainted the fairness and impartiality of the decision-making process.[7]

 Ellis Commentary

This decision was made by the Commission Chair, and eight Commissioners.  The Chair is appointed by the Lieutenant Governor in Council – ie., the Cabinet – and the Commissioners are appointed by the Minister of Agriculture.  All appear to serve at pleasure and their security of tenure is, therefore, as the Federal Court of Appeal has famously noted, “inherently precarious”.  (See sections 5(2)  and 5(3) of the Agricultural Land Commission Act, SBC 2002, c. 36 and section 20 of the Interpretation Act, RSBC 1996, c.238.)

The decision is therefore a exemplary example of the personal integrity of tribunal chair and members winning out over obvious considerations of self-interest, for which all of their colleagues in the administrative justice system are grateful.

The Globe and Mail discovered this decision just recently and in its report in this morning’s Vancouver edition (November 9, 2013) it notes  that:

Two months after the ALC rejected the land application, Mr. Pimm drafted a proposal calling for cabinet to restrict the powers of the ALC and to bring the autonomous Crown agency directly under the control of his ministry.

It is always a question as to whether the quality of the independence requirement is different as between regulatory agencies and adjudicative tribunals.  The latter are exercising judicial functions whereas the former are thought to be exercising administrative functions – doing, as it were, the government’s business.

In this case, the decision draws an interesting distinction between the requirements of independence and impartiality for a reconsideration decision as compared to other decisions the Commission makes.  (See para. 32 and the policy statement quoted there.)

The reconsideration power is spelled out in the Commission’s home statute in particular detail.  Section 33(6) of the Act empowers the Commission to “reconsider and confirm, reverse or vary” that decision only if “evidence not available at the time of the original decision has become available or if all or part of the original decision was based on evidence that was in error or was false”.  (See paragraph 40 of the decision.)

Furthermore, any tribunal reconsideration decision implicitly involves the possibility of eliminating rights that have been established by the original decision.  Thus, in terms of the Unjust by Design analysis of when a decision-making exercise is a judicial function (pages 155 to 168), any reconsideration must be regarded as a judicial function because the exercise of a power to eliminate established rights implicitly calls for an impartial decider.

RE

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One Response to Tribunal Independence: Standing up to Politicians – A Case in Point

  1. Meadow - experienced party in admin justice system proceedings says:

    Comparing the posts on BC, Manitoba and Quebec, it will appear a mixed field remains. The last sentence above was provoking, does it imply that the power to “eliminate established rights conferred” in the refuted decision can only be born by a new/different decision-maker?

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