Tribunals: The Access to Justice Advantage
Imagine suing the federal government without a lawyer, making your case before a neutral adjudicator, and then getting an enforceable decision, on the merits, less than four months later. This may sound like a far-fetched fantasy if you’re familiar with civil litigation in Canada. In our courts, civil lawsuits routinely take 4-5 years to get to adjudication. Legal fees average about $40k per party to get through a 5-day trial. Self-representation is a frustrating and overwhelming ordeal for most people who try it.
And yet the four month path to adjudication is not just an idle fantasy to ponder while you wait 18 months to get your civil motion heard. It describes the Social Security Tribunal of Canada (SST), a federal tribunal established to hear appeals of government decisions regarding benefits. SST litigants can be represented by lawyers, but 75% of them proceed self-represented, sometimes with help from a friend or family member (which is also allowed). The SST procedure and rules were consciously designed to be accessible. “Navigators” employed by the SST help litigants understand the process and prepare for their hearings for the hearing, at no charge. 95% of individuals who use the SST procedure report that they are satisfied by it. When SST decisions are appealed to higher courts, they are seldom overturned.
The SST is recognized as one of the best-functioning tribunals in Canada. (Ontario’s high-volume provincial tribunals, by contrast, are struggling badly.). But there are many tribunals in Canada that deliver a level of access to justice which courts cannot match. Tribunals, in the words of Madam Justice Rosalie Abella, are “designed to be less cumbersome, less expensive, less formal and less delayed,” which lets them “resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly” than courts would. The best tribunals provide access (quick, cheap, and low-stress procedure). They do so without sacrificing justice (substantively correct rulings, adherence to procedural justice, and a public and transparent process).
What explains the success of best-in-class tribunals in creating access to justice? Obviously, it has something to do with the nature of the cases that they deal with. These tend to be factually and legally simpler than civil court matters are. And yet tribunals also have three key features that distinguish them from courts and allow them to excel in A2J terms:
- Each tribunal is specialized and focuses on a particular type of legal dispute. Most courts have generalist jurisdiction. Even if a court is specialized (e.g. family court) the judges are often generalists who rotate in and out. Thus, tribunals can hire or train people who know all about the law and facts that repeatedly arise in a particular class of dispute. They need not all be lawyers. Non-lawyer tribunal members (who bring very valuable perspectives) can learn the law that they need to know because the tribunal’s jurisdiction is limited.
- Tribunals take a measure of institutional responsibility for creating access to justice, instead of simply assigning each case to an individual who must do so single-handedly. Many tribunals assign panels of multiple members to hear matters, not only in an appellate or reconsideration hearings but also at first instance. For tribunals — unlike courts — internal deliberations or peer review prior to release of a tribunal decision, involving members who did not themselves participate in hearing it, are permitted in Canadian law. Tribunal members’ performance can be reviewed and measured against benchmarks (e.g. for prompt release of decisions).
- Designability is a third feature of tribunals that distinguishes them from courts. Tribunals can be planned and built from the ground up to maximize their performance in delivering access to justice for a particular class of legal dispute. This is much more difficult for courts, which are constitutionally independent and thus beyond the power of government to redesign.
None of this is meant as a criticism of Canada’s courts. They have different strengths, including Canada’s most brilliant legal minds on the Bench as well as constitutional independence from government. Courts are equipped to do things that tribunals cannot. However tribunals have enormous potential to create access to justice for Canadians, and this potential has not yet been fully tapped.
Great article that explains the structural advantages that tribunals have in improving A2J. The issue now is for them to deliver on that advantage through effective execution. Thanks Noel for pursuing this issue!
Noel, Thank you for your thoughts on this topic. My brain is exploding right now with commentary. I will try to distill my feedback into coherent points. First, I love the quote from Rosie (she once told me to call her “Rosie” so I’m sticking to that) and agree 100%. Administrative tribunals are designed to function quite distinct from courts. That can be a good thing. While I worked at a legal aid clinic in Toronto, I appeared before the SST on CCP-Disability appeals and EI appeals. Not all experiences were positive. I also appeared (many, many times) before the LTB to represent tenants and before the SBT on ODSP appeals. (Full disclosure: a friend left a clinic to join the SBT as an adjudicator.) And I’ve appeared… hundreds? thousands? of times before the IRB at all divisions. OK – your focus is on A2J. I get that. You are not concerned with the quality of the decision making (?) and you draw a conclusion in support of A2J on the basis that tribunal decisions are seldom overturned. I would say this is far from reality. In reality, most individuals who get negative decisions from tribunals simply cannot appeal or they do not have the knowledge/ resources to fight those decisions in court or, in the case of immigration matters, the DOJ settles and you don’t see the reversals. Many (many!) tribunal decisions are problematic. One of the reasons the RAD was included in IRPA 20 years ago but that section lay dormant for so many years until … 2012? was because the RPD was rendering so many bad decisions that claimants could not take the FC. We had many lengthy discussions/ negotiations that finally convinced lawmakers that we needed the RAD to oversee the RPD. Does the implementation of a tribunal that oversees another tribunal support the notion that tribunals are positive re A2J? Or does that implementation, instead, highlight the issues/ difficulties re A2J in terms of the ALJR process and taking a matter to court? And that may be my main point. I would look at these points from the other perspective. IMHO, the main limitations to A2J (overall) are the byzantine rules and procedures in the court system. Tribunals may be better (in some cases) but they also have many issues. You’re not arguing this but it is worth pointing out there is no panacea to A2J. One final point: I completely disagree that matters before tribunals are “factually and legally simpler” than court matters. (You specified “civil court” matters and I cannot comment on that distinction.) I’m not sure how you drew that inference. In many cases, the individual simply does not recognize/ understand all the potential legal issues in their matter. (I have hundreds of examples in my head right now.) It is only after the tribunal refuses the matter and it is reviewed by, ahem, a lawyer can that professional see (or not see, no judgement here) all the legal issues that were not properly handled by the adjudicator.