Thursday Thinkpiece: Ellis on Administrative Justice

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Ron Ellis
Vancouver: UBC Press, 2013
(*see below for discount)

Excerpts: pages 134, 137-38 (selected by the author, who has a companion website: Administrative Justice System Reform)

[footnotes omitted]

Getting the Context and Terminology Clear, the Concepts Straight, and the Prescription Right

And so it is that we have an executive branch system of administrative justice in which the rule of law is a stranger; a justice system that is, as I reference in the book’s title, unjust by design. Since it is a system that has effectively displaced our system of courts for most of our rights disputes, it is not a system that in its present form we can continue to tolerate. Transformative reform of this system is a transcendent necessity. And such reform must begin with the recognition and acceptance of a principled prescription for administrative justice that is rule-of-law compliant and constitutionally protected – enforceable by the courts and safe from legislative override. This chapter is devoted to the development of such a prescription.

As I continue to emphasize, the administrative justice with which I am concerned includes only the exercise of judicial rights-determining functions by executive branch tribunals and their members. It does not include the exercise of administrative rights-determining functions by regulatory agencies and regulators, not even if the latter functions are of a “quasijudicial” nature.

. . .

[regarding the choice of the “judicial tribunal” label]

With Ontario’s recent lead in the matter, I was tempted to adopt “adjudicative tribunal” as the generic label. Nevertheless, although that label does reflect what judicial tribunals do, it does not sufficiently reflect the fact that the important thing about the adjudicative functions of such tribunals is their status as an integral part of our justice system.

“Judicial tribunal” is the label the McRuer Report applied to these tribunals in 1968.⁵ It is a label that evokes the essential role of these tribunals in the justice system while conveying a robust sense of that role. Moreover, the courts themselves have from time to time applied it to tribunals exercising judicial functions, so that it has a respectable common law provenance as well. It is for these reasons that I have decided to continue as I began, referring to these statutory, non-court organizations whose functions are purely or mainly judicial as “administrative judicial tribunals,” or, for convenience, “judicial tribunals.”

One drawback of this label is that it risks suggesting that one wants or expects these tribunals to be “judicialized” – that is, fashioned to look and act as much like a court as possible. Of course, this is exactly what is not wanted; what is wanted is only for these tribunals to be justicized. In my opinion, however, the advantages of the “judicial tribunal” label outweigh the risk of its contributing to some misunderstanding of the goal of the proposed reforms, so “judicial tribunals” it will continue to be.

The judicial tribunals on which this book focuses are the same executive branch organizations that, as noted above, were called “judicial tribunals” in the McRuer Report; the same organizations that, in 1990, Ed Ratushny’s Report on the Independence of Federal Administrative Tribunals and Agencies described as “tribunals which are adjudicative” and for which it recommended the label “tribunal” be exclusively reserved; and the same organizations that in 1991 the late Chief Justice of Canada Antonio Lamer, in a keynote speech to the conference of the Council of Canadian Administrative Tribunals, referred to as bodies that are “created to operate essentially as adjudicators … in a manner that is similar to the function of the judiciary … [and] expected to dispense justice in the same sense as the courts of law.” They are also the same organizations that, in 1998, in a speech to a conference of the BC Council of Administrative Tribunals (BCCAT), Supreme Court of Canada Justice Beverley McLachlin (as she then was) described as “dispute resolving bodies” [that are not] “regulatory or licensing bodies” [and that] “seem to be doing what the courts have traditionally done.” More recently, the Supreme Court of Canada has, carelessly and wrongly, I believe, labelled these same organizations “quasi-judicial tribunals” but described them accurately as bodies whose “primary purpose” is to “adjudicate disputes” and who are “not involved in crafting policy.”

For the individuals exercising judicial rights-determining functions as members of judicial tribunals, I use the traditional label: “adjudicator.”

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*Note: Thanks to the generosity of UBC Press, Slaw readers are offered a 20% discount if they purchase using the link on the title above. When ordering, enter the discount code SLAW-20 to receive the discount.

Note also that the text of the lengthy Introduction is available online on the UBC Press website.