Prologue
When governments are preoccupied with deficit reduction, the budget problem for judicial tribunals, never good in the best of times, gets much worse.
On February 1, 2013, Ian Strachan, Chair of the Ontario Workplace Safety and Insurance Appeals Tribunal, posted on the Tribunal’s website a warning about the Tribunal’s looming budget crisis. After describing the “tsunami” of appeals the Tribunal faced in 2012, and noting that “[a]lthough the Tribunal adjudicator roster shrank in 2012, the appeals caseload increased by over 40%”, he said this:
While the Appeals Tribunal would be reluctant to eliminate [the] oral hearing option [the hearing that has been provided as a matter of course since the Tribunal’s inception in 1985], any ongoing budget/financial pressures may result in elimination of oral hearings and a significant reduction in full panel hearings. Although those changes would reduce the quality of the adjudicative process, limited operating resources may leave the Appeals Tribunal with no other option.
The Issue
Mr. Strachan’s statement provides an occasion for considering the issue of whether a government has any obligation at all for funding the adjudication of rights mandated by statute, and if it has, what that obligation might be, and how it might be enforced.
It is the issue that was also framed by the statement of an anonymous government official to a judicial tribunal chair referred to in Unjust by Design. The official, acknowledging the statutory responsibility of the chair’s tribunal to hold a hearing, told the chair that the chair must nevertheless understand that the government had no “statutory obligation to fund that hearing”. (See page 114.)
Can that be a true statement? Where a legislature has enacted a right, and by statute required any disputes about that right to be adjudicated by a statutory tribunal, is the executive branch then free to choose not to fund that tribunal? Can any government do to a judicial tribunal what the Harper government did to the Law Commission of Canada in 2006?
(You may recall that on September 25, 2006, the Federal government announced that it would no longer fund the Law Commission and, notwithstanding that the Commission’s constitutive statute remained in place – and remains in place – the Commission closed its doors in December 2006 when its funding was withdrawn. The Law Commission was not, of course, a judicial tribunal.)
Couching the question in its most extreme terms – that is, could a government arbitrarily withdraw all funding from a judicial tribunal that has an ongoing statutory, adjudicative jurisdiction? – will provoke in most people, one would think, the intuitive answer: “surely not”.
But if it is beyond an executive branch’s power to withdraw all funding from a judicial tribunal (without the legislature repealing the legislation that established the tribunal and assigned the adjudicative responsibilities) how would one deal with a government who withdrew the funding anyway? Would the courts issue a mandatory injunction requiring the resumption of funding? And, if they would, then in what amount?
A Case in Point
Perhaps those questions are not worth worrying about. It is never going to happen – the political cost would be too high. And, perhaps that’s right. However, while I know of no example of a Canadian government withdrawing all funding from an operational judicial tribunal, still, most people working in the administrative justice field are likely to know of some tribunals that are seriously underfunded.
Indeed, we have one recorded example of a judicial tribunal that over many years was prevented by executive branch budget restrictions from meeting its statutory responsibilities. I refer to the budget debacle at the Ontario Criminal Injuries Compensation Board on which the Ontario Ombudsman reported in 2007. The executive summary of the Ombudsman’s report is quoted at length in Unjust by Design at pages 111 to 113. The following passages from that quotation tell the tale.
Ontario’s criminal injuries compensation scheme is impressive – on paper. The Compensation for Victims of Crime Act provides for compensation to a broader range of victims, in larger amounts, and for a greater range of injuries than most other provincial plans.
This Cadillac program establishes the only purely adjudicative model in the country in which claims are determined on their legal merits by an independent, quasi-judicial tribunal – the Criminal Injuries Compensation Board.
By law, the Board is obliged to receive claims and determine appropriate awards, unfettered by extraneous influences. Unfortunately, it has never been permitted to do so. One government after another has hindered its statutory mission by giving the Criminal Injuries Compensation Board an unrealistically low budget and then forcing it to pay out of that budget not only its own operating costs, but any compensation it awards.
This has had predictable consequences. First, it has undermined the Board’s independence, leaving it vulnerable to Ministry direction and governmental interference. On a number of occasions, the Board has been told by the Ministry of the Attorney General to place a moratorium on its awards, or delay payment, so it will not exceed its budget …
Third, and of most concern, underfunding has created within the Criminal Injuries Compensation Board a bureaucratic culture that is harming those who are in need of help. …
What makes all of this most troubling is that successive governments … have stood frozen with fear and indecision at the same fork in the road. The first of the two paths before them – to ensure the Criminal Injuries Compensation Board has the funds it needs to do its legislated task – has not been taken because it is uninviting for governments averse to increasing spending. But the alternative path – reducing costs by scaling down victim compensation – is politically frightening. No government wants to be seen as the one that reduced the rights of crime victims.
So, here is evidence of executive-branch budget restrictions preventing a judicial tribunal from meeting its statutory, adjudicative responsibilities. It was not a case of all funding being withdrawn, but a case of egregious budget restrictions that lead to arguably a worse result – the harmful maintenance of a false public representation of justice. If all the funding had been withdrawn, victims of crime would at least have known where they stood.
The Criminal Injuries Compensation Board, as it was in 2007 and many years before that, is an example of judicial tribunal budget abuse that in some degree will be a reality for a number of judicial tribunals across the country, and it appears that the Ontario Workplace Safety and Insurance Appeals Tribunal may be about to join their company.
Is There a Remedy? I Think So.
Do parties whose rights can only be enforced by such a tribunal have any remedy – any means of compelling governments to fund their tribunals at a responsible level?
In my submission, the constitutional requirement of judicial independence will eventually require a minimum level of funding for judicial tribunals. Granted there is no direct authority at the moment, but the logic is persuasive and the jurisprudence that will lead to that conclusion has even now begun to emerge.
See, for example, Deputy Judges Assn. v. Ontario (Attorney General) (2006), 80 O.R. (3d) 481 in which the Ontario Court of Appeal affirmed the judgment of Justice Michael R. Dambrot of the Superior Court of Justice dated November 16, 2005, reported at (2005), 18 C.P.C. (6th) 324, in which he concluded that an independent remuneration commission must be established for Deputy Judges (part-time Small Claims Court judges appointed to three-year renewable terms).
Justice Dambrot had two reasons for coming to that conclusion. Based on his view that the Deputy Judges are protected by the “unwritten” requirement of judicial independence enunciated in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (“PEI Reference”), he held, first, that the current rate of remuneration for Ontario’s Deputy Judges falls below “a minimum acceptable standard” (emphasis added) and, second, that an “independent commission” is the mechanism required to protect the financial security even of Deputy Judges.
The Valente jurisprudence has established that judicial independence has two necessary components – the independence of individual judges, and the independence of the institutions within which those judges perform their adjudicative functions. It, therefore, must follow that where the independence of the institution is threatened by insufficient funding, the principle that lead the SCC to create protective measures for the financial security of individual “judges” will in due course have to be extended to the institutions themselves.
The Ontario Court of Appeal’s recognition of the constitutional requirement of a mimimum level of compensation for judges may be seen in the following passage from its Deputy-Judges decision affirming Justice Dambrot’s judgment:
[22] The Supreme Court in the PEI Reference identified three components of the institutional dimension of financial security: (1) any changes to or freezes in judicial remuneration require prior recourse to a process that is independent, effective, and objective to “avoid the possibility of, or the appearance of, political interference through economic manipulation” (para. 133); (2) the judiciary is not to negotiate remuneration with the executive or legislature (para. 134); and (3) reductions to salary, including erosion by inflation, cannot take judicial compensation below a basic minimum level (para. 135) (emphasis added).
As explained in Chapter 3 of Unjust by Design, where the judicial function has been assigned to a judicial tribunal, the judicial function is a corporate function exercised by the tribunal, with its members acting as the tribunal’s agents.
That being the case, the argument for constitutional protection of a judicial tribunal’s budget at some reasonable minimum level is effectively the same as the Ontario Court of Appeal’s reasons for recognizing that “reductions to salary, including erosion by inflation, cannot take judicial compensation below a basic minimum level.
The argument can be usefully expressed by adapting the Court of Appeal’s reasons in paragraph 22 to what a court would say if the issue were a judicial tribunal’s need for funding at a basic minimum level rather than a judge’s need for sufficient compensation. The adapted reasons would read as follows (the words I have substituted are in bold):
The Supreme Court in the PEI Reference identified three components of the institutional dimension of financial security: (1) any changes to or freezes in judicial tribunal budgets require prior recourse to a process that is independent, effective, and objective to “avoid the possibility of, or the appearance of, political interference through economic manipulation” (para. 133); (2) judicial tribunals are not to negotiate remuneration with the executive or legislature (para. 134); and (3) reductions to budgets, including erosion by inflation or caseload increases, cannot take judicial tribunal funding below a basic minimum level (para. 135).[1]
The Court’s phrase “political interference through economic manipulation” describes exactly what happened at the Criminal Injuries Compensation Board, as described in the Ombudsman’s report.
(Unjust by Design’s reform proposals include providing judicial tribunals with the equivalent of the remuneration commissions that PEI Reference specified for judges. The proposed equivalents take the form of independent “Tribunal Audit Boards”. See pages 259-260.)
RE