(Another in the “Replayed” series. For the introduction to the series, see post #1 (below).)
It is indisputable that the adjudicative decision making of tribunals in our administrative justice system is indistinguishable in rule of law terms from the judicial decision making of our provincial, civil law courts. Witness, for example, the eviction orders by landlord and tenant boards and the recent transfer of the functions of the Saskatchewan Human Rights Tribunal back to the courts.
It is also indisputable that our adjudicative tribunals are famously not independent and cannot possibly be seen to be impartial.
And yet, in their supervision of tribunal adjudicative decisions, Canadian courts continue to approve adjudicative decisions by these dependent and biased tribunals on the grounds that they are reasonable.
In ignoring the rule of law’s requirement that judicial functions be exercised by independent and impartial tribunals – by holding that decisions that demonstrably fail to meet that requirement can nonetheless be “reasonable” – Canadian courts have been complicit in effectively removing the rule of law’s core principles of fairness from the part of our justice system in which, in this modern era, an ever-increasing majority of Canadians are required – by the government – to seek their justice.
Is it not time, then, to rethink Dicey? Unjust by Design thought so.
(footnotes omitted and emphasis added)
The Historical Context
The practice of assigning to non-courts the judicial adjudication of disputes about statutory rights has a lengthy history. In the common law system, it began in the United Kingdom before Canada came on the scene, and naturally it is there that one finds the antecedents of Canada’s administrative justice system.
In his book Without the Law and in his earlier, famous article “Jonah and the Whale,” Professor Harry Arthurs has provided a delightful, scholarly account of those antecedents as they unfolded in Great Britain in the nineteenth century.
By the end of that century, the practice of assigning judicial functions to statutory tribunals had caught the public’s attention and was cause for growing concern among lawyers and judges who saw it as a practice pernicious to the rule of law.
The New Despotism, a book published in 1929 by the Chief Justice of England, Lord Hewart, is notorious for its vituperative attack on the practice.
The Chief Justice charged that there existed “a persistent and well-contrived system, intended to produce, and in practice producing, a despotic power which at one and the same time places Government Departments above the sovereignty of Parliament and beyond the jurisdiction of the Courts.” [ringa bell anyone?]
Canadian lawyers and academics have traditionally disparaged Lord Hewart’s book as self-interested, over-the-top rhetoric from an establishment court figure defending the status quo against competition from these newfangled rivals. Essentially the same criticism as Hewart’s is found, however, in Professor A.V. Dicey’s Lectures Introductory to the Study of Law of the Constitution, first published in 1885.
Dicey regarded tribunals – non-courts exercising judicial functions that he disparagingly equated with France’s government-biased “official courts” – as incompatible with the rule of law.
Although Dicey is a persistent, iconic presence in Canada’s administrative law conversation, he has not usually been seen as a positive influence. He figures most prominently as the Great Satan – the whipping boy for administrative law academics prone to see the replacement of courts by tribunals as modern and progressive and to dismiss judges resistant to the new structures as recalcitrant adherents of a reactionary and antediluvian – “Diceyan” – view of tribunals and courts.
Considered objectively in light of the state of Canadian judicial tribunals in the twenty-first century, however, Dicey’s antipathy to judicial tribunals, an antipathy against which the Canadian administrative law academe has long railed, must now be considered rather more prescient than reactionary.
Were Lord Hewart and Professor Dicey here today, I would respectfully suggest that both would have to be allowed a quiet “told you so.”
This is not to suggest that judicial tribunals were not then or are not now an intrinsically good and necessary thing. In “Jonah and the Whale,” Professor Arthurs asks how, in the teeth of such formidable opposition (as exemplified by Dicey and Lord Hewart), and with relatively little support, at least in legal circles, administrative law has not only survived but has become “the typical, the quintessential, the characteristic modern juridical mode.”
He answers: “[T]he tasks … that all governments have set themselves, for the past 150 years, could not have been performed in any other way … the civil and criminal law [being] totally inadequate for the administration and enforcement of ongoing social and economic policies.”
In that question and answer, Arthurs effectively defines the challenge for any viable, justice-focused criticism of our administrative justice system. Such criticism, including the criticism in this book, must accept the necessity of non-court tribunals in a “juridical mode” performing the tasks of “administration and enforcement of ongoing social and economic policies.”
We cannot do without them; that much is clear. The great question is how to answer Lord Hewart and Professor Dicey – how to have these tribunals and the rule of law.
The surge in the number of tribunals in Canada occurred between the end of the Second World War in 1945 and the 1980s, but the practice of assigning adjudication of rights disputes to tribunals had in fact first come to the fore during the First World War.
Where we Went Wrong – Professor J.A. Corry’s Famous Article – Administrative Justice in the ’30s
Few wartime tribunals survived the end of that war, but the practice of giving tribunals judicial powers persisted and was sufficiently advanced by the mid-1930s for a leading Canadian administrative law scholar of the time, J.A. Corry, to write a significant article about the attitude of the legal profession and the courts towards these new tribunals, an article that would not have been out of place forty [or seventy] years later.
The Corry article provides an interesting insight into the state of play of administrative law when these new tribunals were first being confronted by the courts. Corry, one of the early Canadian critics of Dicey, viewed the courts as obstacles to the effective deployment of the new and necessary tribunals. It is a perspective that has dominated Canadian academic analysis for decades [and one that our courts have embraced, as well].
The following passage from Professor Corry’s article is of particular interest:
[I]n many cases, Parliament has practically surrendered its legislative power to bodies better qualified to lay down rules of administration. In the same way, the jurisdiction of the common law courts over the relations between individuals and administrative authority is repeatedly ousted [by the legislatures’ enactment of “privative clauses”]. Wherever this happens, it is because efficient administration is being embarrassed by judicial interpretation of the statute in question.
Some serious students of the problem are advising that all judicial control be shorn away and that the courts be replaced by administrative courts after the continental model …
Force is being added to such suggestions by the accumulating evidence that such administrative courts are not solely guided, as Dicey thought, by their views of political expediency and the demands of efficient administration, but are also providing adequate protection to the rights of individuals.
With such proposals in the air, it should be time to examine the part which the common-law courts play in this field of Public Law.
I find two things in Professor Corry’s article particularly notable.
The first is the comfort that he takes from his impression that these “administrative courts” are “not solely [note the “solely”] guided, as Dicey thought, by their views of political expediency and the demands of efficient administration.”
The second is the absence in his commentary of any reference to rule-of-law or constitutional-law concerns about the transfer of judicial powers to the executive branch.
The article implicitly assumes, without evidence and in the face of compelling indications to the contrary [even more prominent now], that we can safely accept that executive branch “courts” are not the rule-of-law pariahs that Dicey saw them to be; that, when we entrust the executive branch with the administration and control of judicial functions devoted to deciding rights disputes in which the executive branch is an interested party, we are not endangering the constitution or risking our national sense of what justice expects.
These implicit assumptions have been the underpinning of Canada’s administrative law discourse throughout the history of the Canadian administrative law state to date, and it is their unthinking acceptance by those who might have known better that principally explains why, in this second decade of the twenty-first century, the Canadian administrative justice system remains an in-house, executive branch justice system that is indeed “without the law”.
By now you may be wondering how I myself propose to reconcile Dicey’s theory about the inherent illegitimacy of tribunals with the recognition of a justice-system/judicial branch status for Canada’s judicial tribunals.
In my view, the answer comes easily. Such recognition can be reconciled with Dicey – and with Hewart – if it is accompanied by an appropriate redesign of the tribunals’ structures.
It is the assignment of judicial functions to entities that are not structurally compatible with rule-of-law norms of independence and impartiality that is at the bottom of Dicey’s rule-of-law objection to tribunals.
Judicial Functions not Regulatory Functions
Readers who have got this far are reminded that, underpinning the analysis in UBD is the seminal distinction the book draws between regulatory functions and judicial functions.
The Dicey question pertains only to tribunals exercising judicial functions.