Reports of backlogs and delays in administrative justice processes are increasingly common. While the pandemic lockdown was a contributing factor to those backlogs, our administrative justice system processes may be contributing to and exacerbating delays in the delivery of administrative justice. What can tribunals do to improve the situation? In this column I will address some of the underlying principles or a framework for reducing both backlogs and delays. Principles provide guardrails around processes that will ensure effective and fair adjudication of disputes.
We first have to start with definitions – what is a “backlog” versus a “delay”? The Action Committee on Court Operations in Response to COVID-19 prepared a set of operating principles for reducing court backlog and delays and made an important distinction between “backlog” and “delays” – both equally important. A “backlog” generally refers to a higher number of cases coming in than the number resolved during the same period. “Delays”, refer either to 1) the amount of time it takes to advance a case through the tribunal process, from beginning to final decision or 2) factors or events that cause a case to take longer than reasonably expected under the circumstances.
Before we begin unpacking the principles that must apply to efforts to reduce backlogs and delays, it is important to note that long-term solutions to delays in justice are largely out of the control of tribunals (although they are an important player in those longer-term solutions). As the Action Committee stated, “longer term reduction of delays might involve broader considerations relating to legal reform, institutional and technological resources, and alternatives to formal litigation…” The same observation applies to the administrative justice system. Most of these long-term initiatives are structural in nature and may require statutory changes, changes in legal culture, or the infusion of significant resources (either more tribunal staff or technology) that will require government action.
We used to have a common understanding of the differences between courts and tribunals. I fear that that understanding is sometimes only subject to lip service. Almost 30 years ago, Ontario Court of Appeal Justice Rosalie Abella, as she then was, wrote about the promise and purpose of tribunals, in Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608:
…They were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly…
In 2013, then Chief Justice Beverly McLachlin stated that tribunals offer “flexible, swift and relevant justice”. Now Justice Lorne Sossin, writing when he was a professor, wrote that “…if a tribunal is designed to mirror a court in every respect, then arguably it has failed to reflect the legislature’s choice to assign disputes to the tribunal and not a court in the first place”.
Over the years, tribunal processes have become less expeditious and more court-like. Of course, there are examples of tribunals designing and implementing non-court-like processes and practices through, for example, expedited processes or active adjudication. However, in general, tribunals tend to default to court-like processes.
When looking at the design of tribunal processes, the first principle that must be at the foundation of any reimagining of a dispute resolution process is procedural fairness. Almost 25 years ago, the Supreme Court of Canada told us in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699, what procedural fairness looks like, in principle. The duty of fairness is “flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected” (at paragraph 22). The purpose of participatory rights in the duty of procedural fairness:
…is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
In Baker, the court did use the judicial process as a guidepost for assessing procedural fairness when it repeated its conclusion in Knight v. Indian Head School Division No. 19, 1990 CanLII 138, that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The court in Baker continued:
The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.
The finality of the decision will also dictate the level of fairness required. Greater procedural protections are required if a decision is final and binding, as most tribunal decisions are.
The importance of the decision to those affected is also a factor in determining the nature and extent of the duty of fairness. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections required.
The court in Baker also stated that the “legitimate expectations” of the person challenging the decision may also determine what procedures the duty of fairness requires. If a complainant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. In practice, this simply means that parties have a legitimate expectation that their case will follow the same process as similar cases before the tribunal. It does not mean that processes cannot be changed for all parties – presumably with some warning.
The court in Baker also left room for the choices in procedures made by the tribunal itself – recognizing the specialized expertise of many tribunals in designing processes:
…the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances… While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints …
In 2014, the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 recognized that a “culture shift” was needed in the civil justice system to “create an environment promoting timely and affordable access” to justice. Although the court was referring to the civil trial process, its observations are easily translatable to the tribunal setting. The court focused on “proportional procedures tailored to the needs of the particular case”. This idea of proportionality is a key component of designing processes to address backlogs and delays. In Hyrniak, Justice Karakatsanis concluded that a summary process rather than a full trial was appropriate, if the summary process met the following requirements:
- There is a “fair and just adjudication”
- The process allows the judge to make the necessary findings of fact and apply the law to those facts
- The process is a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”
Justice Karakatsanis stated that “…the best forum for resolving a dispute is not always that with the most painstaking procedure”.
In a recent decision from the Ontario Superior Court (Orr v. TD General Insurance Company, 2023 ONSC 5668), Justice Grace was ruling on whether a motion for the approval of a tort and statutory accident benefit claim should be done orally or in writing. After stating that a requirement to hear such motions orally “defies common sense”, he posed the following four questions:
- Does the suggested process promote judicial economy?
- Does it yield a more just result?
- Is the administration of justice better served?
- Do the parties benefit in some way?
These are all good questions to ask when re-evaluating or designing administrative tribunal processes.
Being clear on the underlying principles of administrative justice is critical when examining opportunities for addressing backlogs and delays. A return to these principles – and the promise of administrative tribunals – will go some way toward improving access to justice. In the words of Justice Abella and Chief Justice McLachlin, tribunals have the promise of resolving disputes “more expeditiously and more accessibly” and to offer “flexible, swift and relevant justice”.