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ARCHIVED Reaction and Reality, the Future of Tribunals in Canada

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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

Keynote Address
Château Laurier
Ottawa, Ontario
November 22, 2002

I. Introduction

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.

II. Independence

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

III. Accountability

To be effective and to be treated as credible adjudicative bodies, administrative tribunals must be accountable. They must be accountable to the legislature and the government for fulfilling their mandate in an objective and impartial manner. They must also be accountable to the Canadians who are affected by their decisions.

Judith McCormack has said that "accountability relates to being able to identify what a decision is, who made it, why it was made, who influenced it, and who will be affected by it"12 Courts play an essential role in ensuring the accountability of administrative tribunals by safeguarding the general right to procedural fairness. Through judicial review, the courts ensure that parties are provided with the opportunity to know the case to be met, have the right to respond and are guaranteed that the decision will be made by an unbiased adjudicator. Administrative tribunals operate in public view, individuals affected by the decision receive notice of the hearing and are afforded the opportunity to make representations, usually by way of an oral hearing. Decisions, including the evidence and the reasons on which they are based, are available to the public and are frequently in writing.13

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.

IV. Standard of Review

As you are all aware, the standard of review applicable to an administrative decision is to be determined based on the functional and pragmatic approach set out by the Supreme Court in Pushpanathan v. Canada (Minister of Citizenship and Immigration).20 In assessing how much deference a decision is entitled to, the reviewing court must determine the legislative intent behind the statute creating the tribunal whose decision is under review.21 To determine the level of deference the legislature intended, the reviewing court must balance four factors: first, the presence or absence of a privative clause; second, the expertise of the decision-maker; third, the purpose of the provision and the legislation as a whole; and fourth, the nature of the question. The balancing of these four factors dictates where on the spectrum of correctness, reasonableness simpliciter and patent unreasonableness, the standard of review lies.

In the administrative context, there have been two important developments since the Supreme Court of Canada's decision in Pushpanathan that I would like to briefly discuss: first, the extension of the functional and pragmatic approach to discretionary decisions and second the deference owed to questions of mixed fact and law.

First, the Supreme Court of Canada extended the application of the functional and pragmatic approach to all types of administrative decisions in Baker. Traditionally, courts had distinguished between the judicial review of discretionary and non-discretionary decisions. However, the difficult task of classifying a decision as discretionary or not, prompted the Supreme Court of Canada in Baker to promote a more nuanced way of reviewing discretionary decisions.22 The Court concluded that the application of the functional and pragmatic approach was appropriate. Importantly, such an approach permits courts to give greater weight to the intention of the legislature with respect to the level of deference owed to the decision-maker's exercise of discretion. It also promotes a uniform approach. However, the Supreme Court of Canada in Suresh cautioned that
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.

V. International Instruments

Globalization has had a tremendous impact in many areas of the law. This is certainly true in the administrative law context where international instruments increasingly influence Canada's administrative decision-makers.

The importance of international treaties was seen in Pushpanathan,26 where one of the issues before the Supreme Court of Canada was how the rules of treaty interpretation applied in determining the meaning of an Article contained in a U.N. convention regarding refugees which had been incorporated into Canada's Immigration Act.27 The majority held that since the purpose of incorporating the Article into the Act was to implement the underlying Convention, an interpretation consistent with Canada's obligation under the Convention had to be adopted. Both the wording of the Convention and the rules of treaty interpretation were therefore applicable in determining the meaning of the Article in domestic law. Importantly, the Court concluded that the purpose and context of the Convention as a whole, as well as the purpose of the individual provision in question were to be used as interpretative guidelines.

The Court's decision in Baker reflects the growing influence of international instruments in administrative law.28 Of particular note was the Supreme Court of Canada's finding that although Canada has never adopted the Convention on the Rights of the Child into domestic law, an immigration official exercising discretion was nevertheless bound to consider the "values" expressed in that Convention.29 The Court held that the prominence of "the best interests of the child" underlying the Convention, should have been weighed in considering Ms. Baker's visa application. The majority concluded that "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review."30

The Supreme Court of Canada's decision in Suresh is also instructional with respect to how international law guides the interpretation and application of Canadian law.31 The Court held that consideration must be given not only to Canadian experience and jurisprudence, but also to international law. This approach takes into account our international obligations and values as expressed in the various sources of international human rights law such as declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals and customary norms. The principles of fundamental justice in section 7 of the Charter and the limits on rights that may be justified under section 1 cannot be considered in isolation from the international norms which they reflect. A complete understanding of the legislation under review and the Charter requires reflection on the international perspective.

In Suresh, the Supreme Court of Canada recognized the dilemma facing the judiciary in bringing to bear international treaty norms which are not binding in Canada because they have not been incorporated into Canadian law by enactment. As the Court pointed out however, "in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada's international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself."32

The weight to be afforded to international norms that have not been incorporated by statute into Canadian law will of course depend on all of the circumstances of a particular case, including the authoritativeness of their legal source, their specificity and, in the case of customary international law, the uniformity of state practice.33

VI. Conclusion

The massive growth in the administrative decision-making system in Canada and its increasing complexity has stimulated the development of administrative law. This development has clarified many principles of administrative law, but has also resulted in some uncertainty. Importantly, the law recognizes the uniqueness of administrative law and the diversity among administrative decision-makers. As a result, different tribunals will attract varying degrees of independence and accountability. The recent developments in the standard of review that applies to various administrative decision-makers reflect the need for flexibility. The important influence of international instruments on the work of some administrative tribunals has recently been recognized as well. As for the uncertainties that remain, they, like past uncertainties, will be resolved by future jurisprudence.

As a society we have high expectations of our administrative adjudicators. Whether the issue before them is prodigious or mundane, the proceedings quasi-judicial or administrative in nature, tribunals are required to provide expeditious and often informal processes, while at the same time meeting judicially developed legal standards. This is no easy task. The caliber of administrative justice in this country is estimable. This is testimony to the conscientious determination and adjudicative mettle of our numerous tribunals and agencies. I have no doubt that Canada's administrative decision makers are prepared for the challenges they will face in the future.