Ensuring Consistency: The Role of Consultation and Adjudicative Independence

“Expedition, economy and concision are sound practices in administrative adjudication.”

Justice David Stratas, Canadian National Railway Company v. Canada (Transportation Agency), 2025 FCA 184, para. 47

In this recent decision of the Federal Court of Appeal about railway interswitching rates, the court observed that the Canadian Transportation Agency had never “conducted a full and rigorous statutory interpretation analysis, i.e., explicitly examining the elements of text, context and purpose” of those rates. Justice Stratas stated that “[c]utting corners and conclusory statements, without more, are not how the Agency should roll … only explicit and rigorous analysis will do…”

He then set out three rationales for adequate reasons:

• “adequate reasons, especially those that analyze text, context and purpose, require careful and rigorous work that often exposes faulty reasoning before the decision is released”.
• “in high stakes determinations like this, adequate reasons tell the parties that their key arguments were taken on board and considered, something resting at the core of procedural fairness”
• “adequate reasons further the transparency, legitimacy and accountability of administrative decision-makers to the parties before them, other regulatees, reviewing courts, and the wider public—something needed more than ever in these days of widespread skepticism, cynicism, and mistrust of government”

Importantly, he also notes that once a decision-maker has “rigorously interpreted” a statutory provision and has “explained itself well”, it can simply cite that interpretation in subsequent decisions: “the explanations given in their reasons need not be repeated over and over again”.

How does a tribunal ensure that it has “explained itself well” while respecting the practices of expedition, economy and concision?

The traditional way that tribunals (and courts) get to “full and rigorous” analysis of statutory provisions or jurisdiction is one case at a time. It works – but it is not expeditious, and not economical. Each adjudicator works through the issues on his or her own and the dialogue between adjudicators occurs through written decisions.

A more expeditious and economical approach is through using consultation processes within a tribunal. There are both formal and informal approaches that tribunals can use to address key statutory interpretation or jurisdiction issues:

• Consulting with tribunal counsel
• Consulting with colleague tribunal adjudicators
• Consulting with the full membership of the board/tribunal

The framework for consultations within a tribunal in preparing reasons for a decision was established by the Supreme Court of Canada in a trilogy of cases, starting in the 1990s: IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952, and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221.

In Consolidated-Bathurst, Justice Gonthier (writing for the majority) quoted extensively from the reconsideration decision by the Chair of the Ontario Labour Relations Board, George Adams. Adams noted that the Labour Relations Act conferred discretion on the Board over how the statute should be interpreted or applied “to an infinite variety of factual situations”. Adams stated that to perform its job effectively, the Board “needs all the insight it can muster to evaluate the practical consequences of its decisions” because it lacked the capacity to research and investigate the impacts of its decisions on labour relations and the economy. He then asked a series of questions that are relevant today to any tribunal:

• What institutional procedures has the Board developed to foster greater insightfulness in the exercise of the Board’s powers by particular panels?
• What internal mechanisms has the Board developed to establish a level of thoughtfulness in the creation of policies which will meet the labour relations community’s needs and stand the test of time?
• What internal procedures has the Board developed to ensure the greatest possible understanding of these policies by all Board members in order to facilitate a more or less uniform application of such policies?

The Supreme Court recognized the value of consultation in fostering “adjudicative coherence” both through considering the opinions of colleagues as well as benefitting from the “acquired experience” of the entire board.

The overarching guiding principle is that the decision-maker assigned to the case must be free to decide cases in accordance with his or her “own conscience and opinions”. What this means in practice is that the decision-maker cannot be compelled or induced to decide against their own conscience or opinion.

Consultations must have “appropriate safeguards”. A court will look at the “actual structure of the machinery created to promote collegiality” and “determine the actual situation prevailing in the body in question”: Tremblay, at pp. 968 and 973 S.C.R.

Importantly, only the decision-maker can request consultation and consultation cannot be imposed by anyone in the tribunal hierarchy (a point emphasized in all three Supreme Court decisions). As Sara Blake has said in her book, “Administrative Law in Canada, 6^th ed”,

A process for compulsory consultation . . . is not acceptable. The decision to consult must be up to the decision makers. It should not be imposed on them. If they do not wish to consult, they must be truly free to choose not to do so. Compulsory consultation creates an appearance [of] constraint on their freedom to decide the case.

In Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518, the court found that there was no evidence that adjudicators were aware that they had the right to refuse a review of their decisions by the Executive Chair and that the process gave them no opportunity to refuse. This is where a written policy on review of decisions can be helpful, as it can demonstrate that adjudicators are aware of their right to refuse a review of their decision.

This emphasis on consent by the decision-maker is an important one – not because adjudicators should refuse to consult, but because it emphasizes the independence of the decision-maker. I think what is more important is the right of an adjudicator to refuse guidance or direction from anyone.

Another safeguard in consultations is a strict focus on the policy or legal aspects of a prospective decision. Of course, an adjudicator discussing a draft decision must set out the facts of the case to provide the necessary context – but findings of fact and credibility findings are not open to discussion. In Consolidated-Bathurst, the court quotes Adams’ statement that the facts set out in the draft decision “are taken as given and do not become the subject of discussion”. The purpose of the policy discussion is not to decide which party will win their case, it is to outline the various statutory interpretations which are open to the adjudicator and to discuss their relative value.

There is much informal consultation that occurs in a tribunal. Adjudicators will talk to each other about cases and bounce ideas or approaches of each other (the same way that judges do). However, there is some benefit to a more structured approach to consultations involving either all the members of tribunal or, if that is not feasible, a representative sample of tribunal members. A structured approach to discussions about statutory interpretations and jurisdiction can result in consistent approaches to the tribunal’s mandate which, in turn, can lead to more efficient administrative justice.