In its June 7, 2013, issue, The Lawyers Weekly reported on the Barreau’s 2013 annual report on Federal and Quebec administrative and legislative developments over the past year. Amongst the Barreau’s reported concerns was what it saw to be the continuing lack of independence of the Tribunal administrative du Québec (TAQ). (See column by Luis Millan, at page 5.)
The particular issue was TAQ having to every year negotiate its budget directly with the government. As Claude Provencher, the Barreau’s Executive Director, is reported to have said:”At stake here is the true independence of a tribunal that must get on its knees to obtain its budget”,
And, of course, there is no judicial tribunal in this country that does not every year get on its knees to its government to obtain the budget it needs to meet its responsibilities for the following year. Moreover, the persons on their knees to the government on behalf of those other judicial tribunals are tribunal chairs who, unlike the TAQ chair, will shortly be asking the same government to grant them personally another three or five-year term of appointment.
As visitors to this site may know, one of Unjust by Design‘s reform proposals is to take the principle of independence that led the Supreme Court to require an independent compensation commission to be interposed between governments and judges in the negotiation of changes to the judges’ compensation and apply it to judicial tribunals and their budget adjustments. The institution the book proposed be interposed is an independent “Tribunal Audit Board”. See below.
Ujust by Design (pages 159-160):
The Tribunal Audit Board
My proposal calls for a guarantee of competitive compensation levels and reasonable separation packages for adjudicators and chairs, and I will talk about all of that shortly. However, while competitive and guaranteed compensation levels and separation packages for individual adjudicators are a good and necessary thing, financially speaking they are not enough. What is also needed is a means of assuring the financial well-being of the tribunals themselves.
Throughout Canadian history, funding has always been an issue for judicial tribunals. What happens when a portfolio ministry starves a tribunal of the funding it requires to fulfi ll its mandate in a reasonable manner was made painfully clear in the Ontario Ombudsman’s report of his investigation of that province’s Criminal Injuries Compensation Board. The dismal story of Canadian human rights commissions perennially deprived of the funding they needed to deal reasonably with their mandates is written for all to see in the persistent backlogs and shameful processing times that have been a consistent feature of their record.
In fact, unacceptable processing times and debilitating, reputation-destroying backlogs have been frequent experiences for all but the most favoured of tribunals.
An explanation for executive branch underfunding of judicial tribunals is found in Chapter 1. For judicial tribunals, dealing with their governments on funding issues presents serious independence issues – the same issues, in fact, as those identifi ed by the courts in the PEI Reference jurisprudence regarding how disputes about salary levels between judges and the government might be resolved without impairing or being seen to impair judicial independence.
It is a problem that clearly needs a structural solution, and I propose we take a leaf from the Supreme Court’s idea of placing “remuneration commissions” between judges and the government and place similar commissions between tribunals and the government.
My reform proposal, therefore, includes the creation by the Bill of Rights of a “Tribunal Audit Board” whose goals would be: to minimize a judicial tribunal’s financial dependency on the government’s goodwill; to minimize the impact on the perception of tribunal independence of a public tribunal/government battle over budget issues; and to enhance the public credibility of tribunals regarding the competence of their management of their budget.
Consisting of independent members with tribunal, user, and public and private financial and auditing backgrounds, the Audit Board would be mandated to monitor the financial performance and cost structures of administrative judicial tribunals and to issue public reports.
The Bill of Rights would also provide that, upon request of either the government or a tribunal, the Audit Board would publish a reasoned and expert opinion concerning the soundness of any budget proposals that may have become an issue between a tribunal and the government.
Both the periodic reporting and the public budget proposal opinions would contribute to an environment conducive to the resolution of funding issues without undermining either the perception or the substance of the tribunals’ judicial independence. …