Another in the “Replayed” series.

For the introduction to the series, see Unjust by Design Replayed, Post #1 below.

INTRODUCTION

One of Unjust by Design‘s seminal themes is the supreme importance to our justice system of distinguishing tribunal judicial functions from tribunal administrative functions.

Unjust by Design, Page 151 – 152

(In all quoted passages, footnotes are omitted and emphasis may have been added.)

…

Since what defines the constitutional status [and the rule of law status] of any individual or institution exercising statutory, rights-determining functions is the nature of those functions, it is of primary importance that we fully understand the distinction between rights-determining functions that are legislative and therefore part of the legislative branch of government; rights-determining functions that are administrative and therefore part of the executive branch of government; and rights-determining functions that are judicial and therefore not part of the executive branch but part of the judicial branch of government.

…

In any analysis of the administrative justice system, one must focus on both administrative and judicial rights-determining functions. The former, being exclusively executive branch functions, are not part of the justice system, but they cannot be ignored in the analysis of administrative justice, for the failure [of both the bureaucracy and, since October 3, 1978, the courts] to recognize or respect the distinction between administrative and judicial rights-determining functions is one of the fundamental sources of Canada’s administrative justice problems.  …

(NOTE  for those readers unfamiliar with Unjust by Design: The book does not argue that tribunal judicial functions should be transferred to the courts. It argues that where a tribunal’s decision-making function is a judicial function, the minimum, core constitutional and rule of law requirements of independence and impartiality for those exercising judicial functions in our society – the Valente requirements – must apply, and recognition of the justice-branch status – the non-executive-branch status – of such tribunals must, therefore, surely follow.)

THE MUTABLENESS BEGINS

October 3, 1978 – the date referenced in the square brackets in the above quotation – is the date of the Supreme Court’s decision in Nicholson.  

Prior to Nicholson, the law clearly recognized that tribunal functions typically included judicial functions.

UNJUST BY DESIGN, PAGE 172

…  (The McRuer Report has been criticized for what is seen by many to have been excessive respect for Professor Dicey’s views on tribunals, but the reliability of its understanding of administrative law as it existed in 1968 has never been questioned.) The report identified three categories of tribunal functions existing in Ontario jurisprudence at the time: judicial, purely administrative, and quasi-judicial administrative:

We adopt the expression “tribunal” as embracing corporations, groups of persons or single persons exercising either administrative or judicial powers … It is, however, necessary … to distinguish between tribunals exercising “administrative” and “judicial” powers. If the power conferred on a tribunal is administrative we will refer to it as an “administrative tribunal.” If the power so conferred is judicial the tribunal will be referred to as a “judicial tribunal” …

The seminal point in Nicholson was the elimination of the distinction between administrative functions that were purely administrative (and therefore, up to then, not subject to judicial review) and administrative functions that were “quasi-judicial” and therefore subject to review. Eliminating that distinction opened all executive branch administrative, rights-determining functions to judicial review – a review that would assess the executive-branch decision-making against the contextually variable principles of procedural fairness.

The destructive thing about Nicholson – the collateral damage, as it were – is that in that decision the Court also held that it was no longer important to distinguish between tribunal administrative functions and tribunal judicial functions.

Unjust by Design Page 178

The following is one of the oft-quoted passages from Chief Justice Laskin’s majority judgment in Nicholson:

What rightly lies behind this emergence [of a general notion of fairness] is the realization that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected, regardless of the classification of the function in question: see, generally, Mullan, Fairness: The New Natural Justice (1975), 25 Univ. of Tor. L.J. 281.

Justice Laskin’s point – and Mullan’s – was that it was neither helpful nor necessary  to distinguish between tribunal judicial functions and administrative functions, and given the law in play at the time, that was true.  However, in Coopers and Lybrand – the decision that shortly followed Nicholson – the Court went one step further and held that when judicial functions are exercised by tribunals they cease to be judicial functions.  And here is where the problem lies.  By that decision, the Court rendered judicial functions in our society mutable – mutable into administrative functions at the option of our governments.

Unjust by Design, Page 176

In Minister of National Revenue v. Coopers and Lybrand … we find Justice Dickson … speaking for the whole Court, saying flatly that “judicial decisions [are] those made by the courts, and administrative decisions [are] those made by other than courts,” and that “government ministries and agencies carry out a different form of work than that done by the courts … Their primary concern is with policy objectives, rather than adjudication inter partes.”  This is a description of “government agencies” that ignores the existence of tribunals such as the workers’ compensation appeals tribunals, the landlord and tenant boards, the social benefit tribunals, the human rights tribunals, and so on, whose primary concern is with adjudication inter partes.

In 1978 and 1979, when Nicholson and Coopers Lybrand were decided, it was an easy decision for the Supreme Court to deny judicial-function status, and the protections associated with those functions, for adjudicative functions assigned to tribunals. Tribunals were wrapped in the warm and admiring embrace of academe and were generally respected; Dicey was out of favour; the Charter and Valente were yet to come, and the unwritten constitutional principle of judicial independence was still only a gleam in the future Chief Justice Lamer’s eye.

Most importantly, under rule of law and constitutional principles current in the mid-70’s, the exercise of judicial functions by executive branch tribunals, or, indeed, by state employees, presented no independence issues.  This was true because the law prevailing in Canada at that time deemed that anyone appointed to exercise a judicial function was, by reason only of their appointment, independent from government even if they were appointed at pleasure and dependent in fact.

Thus in the ’70’s there were no significant consequences for the legal system in the Court denying judicial-function status for rights determining functions assigned to adjudicative tribunals.

But the law changed in 1995 – and consequences surfaced – when the common law principles of judicial independence – originally identified in Valente relative to provincial court judges – were found in Matsqui to apply as well to adjudicative tribunals and their members.  Matsqui established a rule of law requirement that tribunals exercising judicial functions and their adjudicators have a structured arms-length relationship to governments not required for those exercising administrative functions.

And it changed again, in 1997, when, in the PEI Reference, the so-called “unwritten” principle of judicial independence – what I have called the “PEI principle” – was recognized and, further, in 2003 when, in Ell, the Supreme Court ruled that the PEI principle’s judicial independence requirements applied to any “office holder” exercising a “judicial function” in which issues of “impartial adjudication”, “public confidence in the administration of justice” and “preservation of our constitutional order” were at stake.

 AND THIS IS WHERE IT SEEMS TO HAVE ENDED

That modern understanding – the post 1995, 1997, 2003 understanding – of the constitutional and rule of law principles of judicial independence should have rendered the Nicholson–Coopers and Lybrand jurisprudence – the jurisprudence in which the judicial function status of adjudicative functions mutates to administrative function status when governments choose to assign those functions to non-courts – obsolete.

This modern understanding of the law of judicial independence ought to have required that statutory rights-deciding functions of tribunals or public servants that are judicial in nature be recognized as such and distinguished from those that are only administrative, thereby giving their independence and impartiality the constitutional protection that any rule-of-law compliant justice system requires. But the Supreme Court has failed to recognize the need for that adjustment – Ocean Port apparently rules.

And the Court’s failure to make that adjustment means that the constitutional protection of the independence and impartiality of statutory judicial functions is now, effectively, optional in the legislature’s discretion.  In the words of Supreme Court Justice McEwan in McKenzie*: “The same function, depending solely on whether it is located in a court or in a tribunal, may require the constitutional protection of a fair and independent arbiter, or may be left to whatever cowed or needy sycophant the government, in its absolute discretion, thrusts into the judgment seat.”

 *McKenzie v. Minister of Public Safety and Solicitor General et al. 2006 B.C.S.C. 1372 (CanLII) at para. 150.

So that is how we have arrived at the modern-day situation where statutory, rights-deciding functions such as the adjudication of human rights complaints, or landlord and tenant disputes, are judicial functions, with constitutional protection of their independence and impartiality when the government chooses to assign them to persons or institutions that are labelled “judges” or “courts”, but mutate into unprotected administrative functions when the government chooses to assign them to any person or institution not carrying the “judge” or “court” label.

Two cases in point:

The adjudication of human rights complaints was, according to the current view of the courts, an administrative function without constitutional protection of its independence or impartiality when it was a function exercised by the Saskatchewan Human Rights Tribunal but in 2010 became a judicial function with constitutional protection when the Saskatchewan government found it politically expedient to transfer the function to the Saskatchewan Queen’s Bench.

Of course,  the adjudication of human rights in Saskatchewan will lose that protection once again when a future government, finding the Queen’s Bench arrangement too costly and not, after all, politically expedient, assigns the function once again to one of its government-controlled tribunals – or even to a government employee working in, say, the ministry of the Attorney General.

The second case in point is the BC legislature’s 2006 decision to assign the eminently judicial function of evicting families from their homes to staff members employed in the government department responsible for housing.  The BC government made this move when the McKenzie case presented the possibility that the exercise of the function by BC’s then “independent” residential tenancy arbitrators (to whom the function had been earlier moved from the courts) might attract constitutional protection.  (See UBD, page 290.)

In short:

In short, in Canada, the independence and impartiality of judicial functions are no longer constitutional or rule of law imperatives, they are optional in the discretion of governments – which, when one stops and thinks about it, is surely a shocking thing.

It is an especially shocking thing since the judicial functions that Canadian governments are most prone to entrust to their own biased tribunals are those devoted to deciding disputes about everyday rights of Canadians – decisions that are routinely of a life-altering nature.

AND JUDICIAL REVIEW IS NOT THE ANSWER

Chief Justice McLachlin has said that judicial review is the answer to biased tribunals.

In her speech to the Annual Conference of the Council of Canadian Administrative Tribunals (‘‘CCAT”) in Toronto, on May 27, 2013, the Chief Justice, addressing the state of Canada’s administrative justice system, approved — indeed praised — a system in which ‘‘the rights and wrongs of peoples’ disputes with each other and with the state” are decided by government-appointed board members who are, she acknowledged, ‘‘accountable to no one but the government they hoped (sic) would re-appoint them”.

The Chief Justice conceded there may have been some fears about the fairness of such a system, but concluded: “If these fears have not been realized, if tribunals work within the rule of law and not outside it, it is because the courts took on the task of ensuring that administrative tribunals remain true to their fundamental mandates, both procedurally and substantively.  In a word, it is because of judicial review.”

With great respect to the Chief Justice, the simple availability of judicial review is not a reasonable or effective antidote to the biased exercise of judicial functions.

In the first place, we are talking here principally about judicial decisions that determine everyday rights, and the capacity to access the judicial review process by those seeking vindication of such rights is, as we know, severely limited.

In the second place, the institution of deferential judicial review is not equipped to recognize or deal with the harm an adjudicator who is consciously or unconsciously biased may do – the harm they may do in their assessment of evidence and in their findings of fact, or, even within the limits of reasonableness, in their interpretation and application of the law.

The following passages from Unjust by Design are of particular pertinence to the foregoing matters.

UNJUST BY DESIGN, PAGES 66 to 71

The Sea Change in the law of Judicial Independence: Valente, 1985

…

The important point is that, prior to Valente, the judicial independence of provincial court judges or members of administrative judicial tribunals appointed at pleasure was not, as a practical matter, an issue in law. As can be seen in MacKay, in Currie, and in Valente (No.2) [all referenced earlier], without evidence of actual interference or inappropriate conduct, any person assigned a statutory judicial function was simply presumed to be independent.

The common law now holds, however, that independence must be ensured by objective, structural guarantees of at least the three “conditions” of independence identified in Valente: security of tenure, financial security, and administrative control … . These guarantees are designed to ensure both actual independence and what the courts believe to be equally important – the appearance of independence.

UNJUST BY DESIGN, PAGES 226/227

…

And then in Ell, issued on the same day as Bell Canada, the Court defined the generic scope of the PEI principle’s range in general terms. In this decision, the Court extended the application of the PEI principle beyond the category of “all courts” to Alberta’s “non-sitting justices of the peace,” and in the course of doing so, laid down a general formula for identifying the office-holders to which the principle was to apply.

“The scope of the unwritten principle of independence must be interpreted,” it said, “in accordance with its underlying purposes,” and its application to any particular office-holders “depends on whether they exercise judicial functions that relate to the bases upon which the principle is founded.”

Those bases were threefold: “impartiality in adjudication, preservation of our constitutional order, and public confidence in the administration of justice.”

If one takes the second of these three summary labels, “preservation of our constitutional order,” out of context, it may appear that the office-holders the Ell Court saw as attracting the protection of the PEI principle must be only those that are engaged “in the preservation of our constitutional order,” a somewhat lofty assignment for most office-holders or judicial tribunals – certainly too lofty for non-sitting justices of the peace.

However, when one examines the context, and particularly paragraph 22 of the Ell judgment, it is apparent that the Court is applying this label to the need our “constitutional order” has for bodies exercising judicial functions to be separate from the legislative and executive branches of government. It is not that the judicial offices in question must be engaged in the preservation of our constitutional order, but that, if our constitutional order is to be preserved, the independence of those offices from the legislative and executive branches of government must be protected by the application of the PEI principle.

In my opinion, it is simply self-evident that judicial tribunals do exercise judicial functions that “relate to the bases” upon which Ell holds the principle to be founded. (Furthermore, the Court’s explicit use in Ell of the phrase “courts or tribunals” in this context is only consistent with the Court’s expectation that tribunals will be included among the office-holder candidates to which the principle may apply.)

More generally, as McKenzie [Mary McKenzie] and I argued [in “Ocean Port or the Rule of Law”, [2009, 22 Can. J. Admin. Law & Prac. 267] there are no discernible constitutionally relevant distinctions between administrative judicial tribunals such as the Canadian Human Rights Tribunal or the workers’ compensation appeals tribunals, and provincial family law courts, non-sitting justices of the peace, small claims court judges appointed to short, renewable terms, and municipal judges, to all of whom the PEI principle has been held to apply.

The Ex Cathedra Statements

See also the following references in Unjust by Design to a number of ex cathedra statements by our Chief Justices, past and present, and others, about the importance of distinguishing, for rule of law purposes, between agencies exercising administrative functions and adjudicative tribunals exercising judicial functions.

UNJUST BY DESIGN, PAGES 137-38

 …

The judicial tribunals on which this book focuses are the same executive branch organizations that, as noted above, were called “judicial tribunals” in the McRuer Report; the same organizations that, in 1990, Ed Ratushny’s Report on the Independence of Federal Administrative Tribunals and Agencies described as “tribunals which are adjudicative” and for which it recommended the label “tribunal” be exclusively reserved;

and the same organizations that in 1991 the late Chief Justice of Canada, Antonio Lamer, in a keynote speech to the conference of the Council of Canadian Administrative Tribunals, referred to as bodies that are “created to operate essentially as adjudicators … in a manner that is similar to the function of the judiciary … [and] expected to dispense justice in the same sense as the courts of law.”

They are also the same organizations that, in 1998, in a speech to a conference of the BC Council of Administrative Tribunals (BCCAT), Supreme Court of Canada Justice Beverley McLachlin (as she then was) described as “dispute resolving bodies” [that are not] “regulatory or licensing bodies” [and that] “seem to be doing what the courts have traditionally done.”  [She also added these words: “a theory of the Rule of Law that cannot account for these [dispute resolving] bodies will have a very short life. The Rule itself will  become illegitimate”.] *

*  McLachlin, Beverley. “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 Can. J. Admin. L. & Prac. 171.

More recently, the Supreme Court of Canada has, carelessly and wrongly, I believe, labelled these same organizations “quasi-judicial tribunals” but described them accurately as bodies whose “primary purpose” is to “adjudicate disputes” and who are “not involved in crafting policy.”

DO WE KNOW A “JUDICIAL FUNCTION” WHEN WE SEE ONE?

The answer is ‘yes’.   Look for my next post in this Unjust by Design Replayed series.

RE