Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.
JM brings their dispute to that body. JM wants to be heard, by someone who is competent and neutral. JM expects a fair and legal resolution within a reasonable time frame, even if JM is unsuccessful or the outcome is some sort of compromise.
Now pan the camera back from JM, and ask some questions about the body to which JM’s dispute is brought.
- Are the decision-makers in this body competent to resolve the disputes fairly according to the law? Or have they only been appointed because they are ideologically aligned or personally friendly with the government?
- Do they have enough job security to make neutral decisions, without fear of losing their jobs if those decisions upset government Ministers?
- Can the government simply neglect to appoint members to the body, causing delays that last months if not years?
- Can the government abolish the body, if it so chooses, at any time for any reason?
The answer to all of these questions hinges on whether the dispute-resolution body happens to be a court or a tribunal. If it is labelled “court,” then each of these questions will have an answer that reassures JM. However, it is just as likely that the body will be labelled “tribunal.” If so, its ability to do justice in JM’s case is completely dependent on the attitude of the government toward the tribunal and the laws that the tribunal is meant to apply.
Three recent examples from Ontario illustrate the government’s total power over adjudicative tribunals, and the serious consequences of this power for access to justice and the rule of law.
- Ontario’s License Appeal Tribunal is charged with hearing disputes about motor vehicle accident benefits, typically involving an insurer and an accident victim. However the government has not appointed enough adjudicators to provide anything close to prompt resolutions. The Ontario Bar Association recently flagged delays of a year or more between filing and hearing. After hearings – even on very simple issues – another year or more can pass before a decision is rendered. Tribunal Watch Ontario recently surveyed LAT users and found that “overall processing times, for cases that go to a hearing and final decision, appear to have gone from 6 – 9 months to 1.5 – 2 years.” During these extended waiting periods, accident victims may go without any of the benefits that they are claiming.
- Appointments of Ontario tribunal members are often for very short periods. Renewals are at the exclusive discretion of the government. For judges, we have formalized appointment processes and security of tenure after appointment. This system was developed to ensure that judges would feel free to rule against the government or its friends, without fear of losing their jobs. The same risks arise from the insecurity of tenure which still characterizes most tribunals.
- In March 2022, The Government of Ontario introduced legislation that would have completely abolished the College of Traditional Chinese Medicine Practitioners of Ontario (CTCMPAO). The CTCMPAO is an administrative body that regulates practitioners of traditional Chinese medicine and acupuncture. No consultation, and no serious policy rationale accompanied this proposed move. One week later, the Government reversed course. The episode indicates the complete power of life or death that the government possesses over tribunals, and the capricious way in which that power can be exercised without recourse.
So long as administrative tribunals are the creatures and playthings of the government, access to justice for people like JM will depend on the whims of the government. If we cannot guarantee reasonably fair, prompt, and competent dispute-resolution for people like JM, our constitution’s claim that Canada is “founded upon principles that recognize … the rule of law” is highly questionable.
Although some have policy-making roles, many Canadian tribunals have effectively the same function that courts do: resolving legal disputes. Resolution comes through adjudication if necessary (although, in both courts and tribunals, mediation of some kind is typically tried first). Giving litigants whose matters are assigned to tribunals better guarantees of procedural justice is a way to help tribunals discharge their adjudicative functions.
Constitutional litigation is one possible path toward this destination. The Supreme Court of Canada extended constitutional protection of independence first to section 96 courts, then to provincial courts, and then to tribunals dealing with constitutional and then quasi-constitutional matters. However, in the 2001 Ocean Port decision, the SCC refused to do the same for adjudicative bodies (and the people who use them) that are not in these favoured categories. Twenty years later it may be time to sail away from Ocean Port, while keeping on board that decision’s message of respect for legitimate policy-making by democratic governments.
A second possible path is legislative. Ron Ellis — who has done as much as anyone to fight for tribunal justice in Canada— has recently proposed some interesting model legislation. It would establish an expert, non-partisan Administrative Justice Council to oversee appointments and promote continuous improvements in Ontario’s tribunals. Another possible model is found in England & Wales. The government there entrenched administrative tribunals within the judicial branch, with the same guarantees of independence that apply to judges.
The independence of tribunals is not an end in itself, but it is a way to secure access to justice and the rule of law for Canadians like JM. We should not think about the division of powers between our public sector institutions (executive, legislative, judicial, administrative) in terms of the prerogatives or legitimate spheres of power of those institutions. We should think in terms of the functions these institutions can perform for the many Canadians who rely upon them. We should reform them with the same spirit.