Unjust by Design Replayed – Post # 6: Professor Hart would not approve.

Another in the “Replayed” series.

For the introduction to the series, see “Unjust by Design Replayed”, Post #1 below.
In the passages quoted from Unjust by Design, footnotes are omitted and context-clarifying notes sometimes [added]


One of the keystone principles of a democratic system of government is that each individual is entitled to “equality before the law” – the right affirmed in section 1(b) of the Canadian Bill of Rights.

An instance of the Supreme Court affirming this principle “as one of the main corollaries of the rule of law” was referenced in the following passage in Unjust by Design (at page 201):

Especially pertinent to the concept [that an adjudicative tribunal has a duty to ensure that its adjudicators’ decisions are consistent] … is the Supreme Court’s observation in Consolidated-Bathurst that a situation in which the outcome of an appeal or application will depend only on which members of a tribunal happened to be assigned to the case “will be difficult to reconcile with the notion of equality before the law … one of the main corollaries of the rule of law, and perhaps also the most intelligible.”  (Consolidated-Bathurst, paragraph 74)


In the literature of legal philosophy, the notion of equality before the law is to be found principally in the foundational concept that like cases be treated alike and different cases be treated differently.  UBD addressed this concept in the following passages (at pp. 147/148):

Impartial Deciders – The Foundation of Justice

The Grundnorm of a rule-of-law-compliant justice system is the principle that like cases be treated alike and different cases be treated differently. As legal philosopher Joel Feinberg put it, “many writers hold that the principle of like treatment for like cases is more than simply one among many ethical principles vying for our allegiance, but is rather an instance of a more general principle that is constitutive of rationality itself.”

Where the matter at issue is the application of a statutory law (which is virtually always the matter principally at issue before judicial tribunals), the relevant criteria for determining whether cases are alike or different are found in the statute itself. However, both the facts against which conformity with those criteria is to be measured, and the meaning of those criteria as they were intended to apply to those facts, fall to a “judge” to determine, and, as legal philosopher Professor H.L.A. Hart points out, the key to the “legitimacy of the determination” of “alike or different” is “the perceived impartiality” of the judge.

A law is justly applied only, Hart says, if it is “impartially applied to all those and only those who are alike in having done what the law forbids [or permits],” which is to say that “no prejudice or interest has deflected the administrator from treating them ‘equally.’”

It is for this reason, he says, that “the procedural standards such as ‘audi alteram partem’ [and] let no one be a judge in his own cause, are thought of as requirements of justice.” “This is so,” in Hart’s view, “because they are guarantees of impartiality or objectivity designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself.” “[T]o apply a law justly to different cases is simply,” Hart says, “to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest, or caprice.”

To be seen to be applying laws justly to different cases, therefore, we must, according to Hart, have at the core of our justice system a manifest commitment to “take seriously” the requirement that bodies exercising judicial, rights-determining functions are, and are perceived to be, impartial. If one accepts Hart’s analysis in that respect – as I do – it follows that the core foundational requirement of constitutional legitimacy for a person or entity exercising judicial functions is an objectively guaranteed impartiality.

The constitutional principle of equality before the law – the imperative that like cases be treated alike – presents itself for validation whenever individuals or their privies have claimed entitlement to rights they allege the law defines and where that entitlement is contested by governments or others.  Innately, the determination of disputes about entitlement to law-defined rights in a constitutionally valid manner is exclusively the function of a person or body who the legislature or the constitution has authorized to determine such disputes. And that determination function is by virtue of its nature – by definition – a “judicial” function – the function which in a democratic society must be and be seen to be exercised impartially, in Hart’s words, “without prejudice, interest or caprice”.


While Canadian courts are obviously the preeminent locus of judicial function assignments, nevertheless, in Canada, in the vast majority of cases, the validation of rights-entitlement claims have been relegated to the administrative justice system and to the exercise of judicial functions by that system’s adjudicative tribunals.

The Canadian law as it currently stands appears to hold that bodies in the administrative justice system that have been assigned a function of determining disputes about entitlement to law-defined rights – that is, that have been assigned a judicial function – are not required by our constitution to either be or appear to be impartial (see Ocean Port and the Sask. CA decision in 2013 in Saskatchewan Federation of Labour v.Government of Saskatchewan. 

Distinguishing judicial, decision-making functions from administrative, decision-making functions is often said to be difficult. And, as referenced in Post #5, it seemed to be only the perceived difficulty of distinguishing tribunal judicial functions from tribunal administrative rights-determining functions – a difficulty that does not arise with respect to the courts’ functions – that prompted the Supreme Court in its 1978 decision in Nicholson to give up the effort to make that distinction.

At the time, it could safely do so because there was no constitutional issue about executive-branch dependent tribunals exercising judicial functions.  The law simply deemed that anyone assigned a judicial function was independent in law, even though they were not independent in fact. (Of course, since Valente, this is no longer true.)

However, as also mentioned in Post #5, in its 1979 decision in Coopers and Lybrand the Court went a step further and introduced what was effectively a new definition of judicial functions.  It held that judicial functions were those exercised by a “court” and identical functions were not judicial functions if they were exercised by a tribunal.

This has been referred to as a “formalist” definition – the nature of a rights-determining function is determined by the nature of the body to which the legislature chooses to assign it.

Unjust by Design cited the Saskatchewan government’s 2011 transfer of the function of adjudicating human rights from the Human Rights Tribunal to the Saskatchewan Queen’s Bench as a current example of a Coopers-and-Lybrand function-transmogrification by a stroke of the legislative pen – on that occasion from an administrative function to that of a judicial function.  See page 94.

The impossibility of distinguishing constitutionally between the nature of the rights decisions made by adjudicative tribunals such as human rights tribunals and those made by provincial, civil law courts was a persistent theme in UBD.  See, for example, pages 180 to 181.

The latter is not a radical view nor is it one confined to UBD.

In 2005, in an extensive article written by Gerald Heckman and Lorne Sossin entitled “How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards? The Case of Independence”, 50 McGill L. J. 193, in which the European approach to ensuring the independence of adjudicative tribunals is contrasted to the Canadian approach, the authors offered this comment (at page 244):

In our view, none of [the Supreme Court of Canada’s judgments … provides a satisfactory account of why the Court opts for a formalist over a functionalist approach to the requirements of independence in the administrative sphere. In Ocean Port, Chief Justice McLachlin does not adequately distinguish the principle at issue in the Provincial Court Judges Reference [the PEI principle] from the principle at issue regarding the independence of adjudicative tribunal members. Both [provincial courts and adjudicative tribunals] are creatures of statute charged not with “implementing policy” but with resolving disputes by making findings of fact and law on an impartial basis. Moreover, both bodies may interpret the Charter and provide remedies to aggrieved parties. It is difficult to sustain a constitutional divide between these two types of adjudicative bodies; and it is not clear how administrative justice is served by attempting to do so.

Moreover, on the formalist definition of a judicial function the Supreme Court is by no means of one voice.   In 1999, in Baker, the Court quoted with approval the following passage from the UK Court of Queen’s Bench decision in R. v. Higher Education Funding Council:

While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.

And in 2003, in Ell, the Supreme Court held that the unwritten constitutional requirement of judicial independence (the PEI Principle) applied to any “office holder” exercising “judicial functions” that relate to the bases of the judicial independence requirement, a conclusion which seems out of step with the Coopers and Lybrand view that only court functions qualify as judicial functions.  A tribunal adjudicator is no less an office holder” than a judge.

With Baker and Ell in mind, it is arguably no longer the case that the Supreme Court sees a judicial function as mutating to an administrative function when it is assigned to a body that is not labeled “court” (even though it persists in labeling such functions as “quasi-judicial”).  Thus my characterization in Post #5 of the function as “mutable” – changing its nature as it moves from a court to a non-court body (a characterization which I based on Coopers and Lybrand) – is not in modern law perhaps correct. Under the more modern jurisprudence it would appear that a judicial function is a judicial function whatever the nature of the body authorized to exercise it.

In fact, under current law, it appears that the only thing that changes as the function is moved from a court to a non-court body is not its nature but the constitutional protection of its independence.  On the basis of Ocean Port and the Saskatchewan Court of Appeal decision in SFL v. Saskatchewan, the constitutional protection of the impartiality of a judicial function must now be seen to come and go depending solely on the label that governments choose to affix to the body they authorize to exercise the function.

Canadian governments have chosen to assign the deciding function in the vast majority of cases in which the requirement of equal access to the law, and the treat-like-cases-alike principle applies, to executive-branch, non-court bodies that are acknowledged to be neither independent nor impartial.

It follows that in that vast majority of entitlement cases our courts are allowing the law to be applied illegitimately and unjustly.

That would certainly be the view of Professor H.L.A. Hart.

Go figure.





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