Thursday, 9 January 2014

Tribunal Independence: Ron Ellis -- Unjust by Design: Canada's Administrative Justice System

Having worked at the tribunal coalface for many years, Ron Ellis is very well placed to comment on the independence of Canada's administrative tribunals. In Unjust by Design, he eviscerates the current system and draws out a road map for reform. The book is fascinating and well worth reading in full. I will limit myself to a brief summary and two remarks.

Ellis takes aim at what he ultimately calls "judicial tribunals". Despite the label, which is carefully chosen and explained, these are not courts. Rather, they are administrative decision-makers. The term "judicial tribunal" is designed to capture a subset of administrative decision-makers for which independence is vitally important.

He distinguishes these from various other bodies, including regulatory agencies. For Ellis, there is a fundamental difference between a workers' compensation board making payouts to injured workers and an energy board granting licences to economic actors. The workers' compensation board should dispassionately apply the statute setting out the rights of injured workers. But an energy board might legitimately have regard to a much wider variety of policy factors. The upshot is that the workers' compensation board must be rigorously protected from outside interference in terms of security of tenure, security of remuneration and decisional autonomy, whereas some political influence over the energy board might be tolerable.

First, Ellis recounts in a chapter entitled "Defeating the Rule of Law in the Administrative Justice System: Executive Branch Strategies and Tactics" the various ways in which political actors undermine, sometimes subtly, the independence of administrative decision-makers. Control over renewal of appointments is a particularly striking example. Discharge your functions in such a way as to please your masters and you will stay in your position. Otherwise, you will need to find a new line of work.

This perspective on independence is very interesting. Administrative lawyers are often concerned with individuals being free from arbitrary power exercised by administrative decision-makers. But those decision-makers may themselves be subject to arbitrary power and, on the fashionable 'republican' view of things, not be truly free, with further ramifications for the individuals subject to their decisions.

The difficulty, as Ellis notes, is that politicians have strong incentives to maintain this power over administrative decision-makers: they benefit from the ability to make patronage appointments and to influence indirectly the exercise of administrative powers. So far, the Supreme Court of Canada has baulked at requiring the same level of independence for administrative decision-makers as it does for judges and it recently declined the invitation to grant leave in a case which raised the point directly. It may ultimately be up to legislatures to follow the Australian and English examples of establishing super-tribunals.

Second, Ellis offers an arresting doctrinal solution. He recognizes that judicial independence would not be suitable for all administrative decision-makers. Instead, he advocates a revival of the distinction between judicial and quasi-judicial tribunals -- with perhaps a separate category of administrative functions, but Ellis is concerned primarily with the treatment of functions that are properly considered judicial as quasi-judicial and subject to lower requirements in respect of independence. If the distinction is revived as Ellis argues, only judicial tribunals would be protected by a constitutional principle of judicial independence.

Again, this perspective is very interesting. The conventional wisdom is that the formal judicial/quasi-judicial distinction was jettisoned because it led to arbitrary results in procedural fairness cases. Yet, as Ellis points out in a compelling historical discussion, having jettisoned the distinction, Canadian administrative law was left with no label which would justify requiring the highest possible level of independence for tribunals, like workers' compensation boards, which really should be expected to discharge their functions with rigorous impartiality, just as courts do.

Whether a revival of the distinction is desirable is debatable. The argument advanced by Ellis resembles one made in 1978 by Martin Loughlin (sub required). Yet Canadian courts have resolutely followed a contextual approach to procedural fairness issues and those of impartiality and independence. Nothing would prevent them from requiring a higher level of impartiality and independence for tribunals that meet a set of appropriate criteria. Indeed, in his discussion of the distinction between judicial and administrative functions, Ellis offers a set of substantive criteria to identify the type of decision-making body that requires the highest possible level of independence. Quite what we call such a body (if we call it anything at all) is less important. But one may take the view that there is already too much context in Canadian administrative law.

You should really read the whole thing and come to your own conclusion.

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