Over the summer news broke about a meeting of National Energy Board (NEB) members and stakeholders in 2015, where the Energy East pipeline was discussed. Initially, the NEB stated that they had met with former Quebec premier, Jean Charest, to seek his political advice. Mr. Charest was a consultant to TransCanada (the pipeline company). An access to information request revealed that the pipeline proposal was included in the discussion and the NEB changed its story, blaming a memory lapse.
A Montreal Gazette editorial had strong words for the NEB: “this oversight will only stoke the suspicion of skeptics who fear the approval process is rigged in TransCanada’s favour”. The editorial went as far as saying that the board members had created a perception of bias.
The editorial also highlighted the fact that the NEB had met with business leaders and environmental groups in private, calling the closed-door sessions “questionable”. It noted that the NEB had said that the discussions were about the process of the hearings and not the substance: “although …. we have only their word to take for it”.
In addition to the public relations problem highlighted by the editorial, the NEB is also faced with a motion to remove the panel members from the Energy East hearing on the basis of a lack of impartiality.
This is a useful example of the risks of consultations with stakeholders by tribunals. There are also rewards to consultation, including improved efficiency of administrative justice. As always, tribunals must balance the need for efficiency against the requirements of impartiality and independence.
Organizations regularly consult with clients and others affected by their decisions. These consultations can take the form of surveys, focus groups and advisory committees. Consultation is a way of getting feedback on what’s not working in an organization’s process and on proposed changes to process. Courts have used bench and bar committees for many years and many tribunals have adapted that consultation model.
The rewards of consultation are perhaps obvious. Listening to stakeholders is a sign of respect and recognition that they have an active interest in how the tribunal manages its process. Outsiders often see an organization from a different perspective and can provide valuable insights into improvements. Tribunals can “road test” process improvement ideas with users of the tribunal process to gain valuable insights on what will and won’t work.
The risks are that those not present at the consultations may be left with the impression that some stakeholders have been granted special access or that specific cases before the tribunal may be discussed. Self-represented applicants at the Human Rights Tribunal of Ontario have raised the issue of bias directly or indirectly through expressed concerns about lawyers on the Tribunal’s practice advisory committee appearing for respondents: see Guilmoutdinov v. Ontario College of Teachers (2009 HRTO 2130), for example, where the adjudicator noted that advisory committees were frequently used by tribunals to promote responsiveness to the communities they serve and concluded that membership on the committee did not create a reasonable apprehension of bias.
Is there a way to reduce or eliminate the risks of consultation?
Advisory committees need to be balanced and as comprehensive as possible in their membership. All parties who regularly appear before the tribunal or represent parties that do so need to have their interests reflected in the committee membership. Depending on the tribunal, there may be some benefit in considering how to ensure that the interests of self-represented litigants are represented on the advisory committee.
The terms of reference for advisory committees need to be clear on the parameters of discussion at meetings. In addition, those terms of reference need to be public. The terms of reference for the HRTO advisory committee and the terms of reference for the Canada Industrial Relations Board (CIRB) are both good examples of comprehensive terms of reference.
To address the transparency of private consultations, there are a few things that tribunals can consider. The first, and perhaps the easiest, is to make the agenda for each meeting publicly available. Many terms of reference specify that the agenda must be set in advance, so posting that agenda on the tribunal website is not a difficult proposition.
There are advantages to confidential or private discussions on process issues. However, it is worth considering on a case-by-case basis whether full confidentiality is necessary for all subjects discussed. At the very least, minutes of the meeting should be prepared that set out the points of discussion. Consideration should also be given to posting those minutes on the tribunal website. As the NEB discovered, notes from such meetings are likely accessible through access to information requests in any event.
Improving the efficiency and effectiveness of tribunal processes is an important objective for all tribunals. However, the process of improvement must also be sensitive to the need for transparency, in order to protect the perception of tribunals’ independence and impartiality.