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Canadian Bar Association Conference
The National Administrative Law Section
and the National Labour & Employment Law Section
"Reaction and Reality, the Future of Tribunals in Canada"
A Judicial Perspective on the Recent Developments and Future Challenges Facing Canada's Administrative Decision-makers
The Honourable John D. Richard
Chief Justice of the Federal Court of Canada
November 22, 2002
The dual role of administrative tribunals as instruments of government policy and as instruments of justice is the essence of their uniqueness.1 They have aptly been described by Chief Justice McLachlin as "spanning the constitutional divide between the executive and judicial branches of government."2 Today I will speak on the recent developments in three areas that fuel the complex interplay between the government, administrative tribunals, and the courts namely independence, accountability and the standard of review. I will also discuss the growing importance of international instruments in administrative law.
The interpretation and implementation of government policy would be difficult, if not impossible, without the operation of administrative agencies. As Justice Abella has eloquently put it, tribunals arose "full-panoplied from the forehead of the legislatures, who recognized that neither the courts nor bureaucracies were able to handle the volume of decision-making law and policy required."3 As a society, we accept that we are governed, in part, through policy and that this process involves the establishment of tribunals which have responsibility for making decisions that affect our legal rights, entitlements and obligations. In this way, the administrative justice system is an indispensable component of our democratic process.
It is not disputed that governments have the right to establish policy. Administrative agencies have been assigned the jurisdiction to interpret and apply that policy on a case-by-case basis, in accordance with the legislation, the evidence, and the submissions of the parties. While ministers and bureaucrats are responsible for providing the necessary resources to enable tribunals to execute their mandate effectively, they have no control, and cannot be seen to have control, over the outcome in any given case.4
Since the principles of judicial independence were established by the Supreme Court of Canada in Valente v. the Queen, subsequent cases have endeavoured to give the application of the doctrine in administrative law meaning and substance.5 The Supreme Court of Canada most recently expounded upon the application of this principle in Ocean Port Hotel.6
The application of the doctrine of independence in the administrative sphere results from the unique space these decision-makers occupy among the three branches of government. It is well established that judicial independence is constitutionally guaranteed as it demarcates the division between the judiciary and the executive. This demarcation does not apply however to administrative decision makers. They, unlike the judiciary, are not constitutionally distinct from the executive. Administrative tribunals are established by Parliament and the legislatures who set out their mandate and the responsibilities they are to discharge. It is the legislature that determines the relationship between the administrative tribunal and the executive. As a result, the Supreme Court of Canada affirmed that "the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament, and, absent constitutional constraints, this choice must be respected."7 Therefore, where there is no constitutional or quasi-constitutional challenge, the degree of independence required of tribunal members may ultimately be determined by the language of the statute.
The Ocean Port Hotel case has stimulated much discussion among advocates and academics on the future application of the doctrine of independence in the administrative sphere.8 Professor Mullan has opined that the application of this decision to tribunals which perform tasks that are "court-like" such as human rights or labour relations tribunals remains uncertain. The Supreme Court may clarify the parameters of tribunal independence in two upcoming decisions. In CUPE v. Ontario (Minister of Labour) which was heard October 8, 2002, the Court was asked to resolve whether the use of retired judges as Chairs of arbitration boards violates the principle of independence.9 And in Canadian Telephone Employees Association v. Bell Canada, which is scheduled to be heard in the Winter 2003 session, the issue before the Court will be whether the federal Human Rights Tribunal lacks the requisite degree of independence.10
Professor Mullan has suggested:
given the highly significant role that administrative justice plays in the lives of ordinary Canadians, and the reality that many administrative tribunals perform adjudicative functions very typical of those exercised by the courts, there is a strong countervailing sense that greater degrees of independence may be part of the key to a more professional and competent corps of adjudicators.11
The provision of written reasons has many benefits. The Supreme Court of Canada in Baker, while recognizing the possible expense and delay involved, confirmed that reasons foster better and more transparent decision making, they are a tremendous asset on appeal and, importantly, they allow those affected by the decision to understand how the adjudicator reached the result.14 Despite the extensive discussion on this issue in the administrative law context, there has been little direction as to when the duty of procedural fairness requires a tribunal to provide written reasons. 15 However, the Supreme Court of Canada has recently provided some guidance on this issue in the criminal context.
In R. v. Sheppard, the Supreme Court of Canada set out a number of propositions relating to appellate intervention in a criminal case based on insufficient reasons.16 Such principles while not directly applicable to the administrative law context, still provide compelling rationales which could obligate an administrative tribunal which is adjudicative in nature to provide reasons for their decision. Ten propositions were outlined in the Sheppard case, I would like to focus on five of them.
The first proposition in favour of the reasoned decisions is that the delivery of reasons is inherent in a judge's role as a decision-maker. As such, reasons constitute part of his or her accountability for the discharge of the responsibilities of the office and of the duty which she or he owes to the public at large.
The second proposition rests on whether the functional need to know has been met. Reasons for a decision may be important to clarify how the result was reached.
The third, fifth and ninth propositions relate to an individual's ability to appeal. A reasoned decision of a tribunal can be useful to a party who has a statutory right of appeal from that decision. Reasons assist the parties in considering a potential appeal or judicial review. Further, reasons provide for more meaningful appellate review as they help in ascertaining the correctness of the tribunals decision. As in the criminal context, non-existent reasons with respect to findings of credibility may provide adequate grounds for appeal in the administrative law context.
In the Sheppard decision, Justice Binnie emphasized that the requirement of a reasoned decision should be "given a functional and purposeful interpretation."17 Therefore not every deficiency in the reasons will provide a ground for appeal. The obligation to provide reasons will vary depending on the nature of the administrative tribunal, the nature of the decision before it and its enabling statute. Ultimately, as Justice Binnie concluded, "what is sought is an intelligible pathway through his reasons to his conclusion."18
The Courts play an essential role in the accountability of administrative tribunals.19 The open processes and the transparency of decision-making which have been structured through judicial review is the primary source of day-to-day accountability of administrative tribunals. Through judicial review, the courts have been able to assist administrative agencies in fulfilling their function as instruments of justice by protecting the rights of individuals who come before them. Judicial review has imposed a transparency of procedure, fairness and impartiality on the functioning of administrative agencies, permitting them to establish credibility in the eyes of the public. Public acceptance of and support for their decisions are secured by the principles of natural justice which assures public knowledge of how the decision was made and why the conclusion was reached. Enhancing such openness encourages and fosters the legitimacy of our administrative justice system by allowing tribunals to engage in independent decision-making based upon established and discernable principles of law.
its approach "should not be seen as reducing the level of deference given to decisions of a highly discretionary nature" (para. 56) and, moreover, that any ministerial obligation to consider certain factors "gives the applicant no right to a particular outcome or to the application of a particular legal test" (para. 74).23
Second, the level of deference owed to a tribunal's decision where the nature of the problem is a question of mixed fact and law has recently been refined. The Supreme Court of Canada recently revised the approach to the standard of review on questions of mixed fact and law in Housen v. Nikolaisen.24 The Court generally promoted a more deferential approach to questions of mixed fact and law. However, they did conclude that where an error of law can be extricated from a mixed question of fact and law, the appropriate standard of review is correctness.
While Housen v. Nikolaisen was a negligence case, our Court recently adopted this approach to questions of mixed fact and law when determining the appropriate standard of review in the judicial review context. In Telus Communications, the nature of the problem under review was a question of mixed fact and law.25 In ascertaining the deference owed to the tribunal under the functional and pragmatic approach Justice Desjardins incorporated the approach propounded in Housen.