Judicial Oversight and Open Justice in Administrative Proceedings
Two pieces of proposed legislation are currently winding their way through Parliament, one about judicial discipline, one about compensation for air travel passengers. As drafted, both bills prompt serious questions about judicial oversight and open justice.
Several judicial discipline cases in recent times have become bogged down in lengthy litigation, paid for out of the public purse. Bill C-9 seeks to streamline judicial discipline by amending the Judges Act and giving new powers to the Canadian Judicial Council. Some of the amendments seem quite sensible to me and put various existing mechanisms – such as screening out frivolous or vexatious complaints – on a statutory basis.
Of concern, however, is the effective removal of the right to seek judicial review of decisions of the Council:
137. The judge who is the subject of a decision of an appeal panel and the presenting counsel may respectively, within 30 days after the day on which the appeal panel sends them a notice of its decision, file a notice of application for leave to appeal to the Supreme Court of Canada.
158. A decision made by a member of the Council under any of Divisions 1 to 3 or by a member of a panel established under any of those Divisions is final and is not to be questioned or reviewed in any court other than provided for in this Part.
At present, a judge who is the subject of judicial discipline proceedings can seek judicial review of the Council’s decisions in Federal Court, subject to the usual bars against premature applications for relief, exhaustion of alternative remedies and so on. Bill C-9 would remove the right to seek judicial review and replace it with a provision providing for the possibility — entirely in the discretion of the Supreme Court of Canada — of an appeal.
These provisions create two problems which, at a minimum, are liable to lead to lengthy litigation.
First, in theory Parliament can create an administrative regime that is not subject to oversight by the courts. The authority for this proposition is Pringle v. Fraser,  SCR 821, where judicial oversight of deportation orders was excluded:
in the context of the overall scheme for the administration of immigration policy the words in s. 22 (“sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction”) are adequate not only to endow the Board with the stated authority but to exclude any other court or tribunal from entertaining any type of proceedings, be they by way of certiorari or otherwise, in relation to the matters so confided exclusively to the Board. The fact that the result of such an interpretation is to abolish certiorari as a remedy for challengeable deportation orders is not a ground for refusing to give language its plain meaning. This Court has held that habeas corpus, certainly as honoured a remedy as certiorari, takes its colour from the substantive matters in respect of which it is sought to be invoked, and its availability may depend on whether it is prescribed as a remedy by the competent legislature…So too, certiorari, as a remedial proceeding, has no necessary ongoing life in relation to all matters for which it could be used, if competent excluding legislation is enacted (at pp. 826-827).
The problem here is that Pringle pre-dates two very important Supreme Court of Canada decisions. For one thing, in Crevier v. A.G. (Québec),  2 SCR 220, the Supreme Court established that there is a core constitutional minimum of judicial review: clauses purporting to oust the jurisdiction of the superior courts are therefore unconstitutional and of no effect. For another, in MacMillan Bloedel Ltd. v. Simpson,  4 SCR 725, the Supreme Court established that the strictures of s. 96 of the Constitution Act (the foundation of the decision in Crevier) apply as much to Parliament as to the provincial legislatures. It would therefore seem that although Parliament has plenary powers under s. 101 of the Constitution Act to create courts and tribunals for the administration of federal law, those powers now have to be read down to preserve a core constitutional minimum of judicial review.
The core constitutional minimum of judicial review could be achieved, in respect of a decision taken under Bill C-9, by either (a) seeking judicial review in superior court of a Council decision or (b) seeking judicial review in superior court of a Supreme Court of Canada decision refusing leave to appeal or dismissing an appeal. Option (b) might seem outlandish, but the logic would be that in this instance the Supreme Court of Canada would be exercising powers as part of an exhaustive administrative scheme and, as part of the apparatus of the administrative state, is subject to judicial review in superior court. Option (a) could be actioned on the basis that Bill C-9 does not clearly oust the jurisdiction of the superior courts (an argument that would be based in part on the proposition that Bill C-9’s privative provisions are ineffective) and that the right of appeal with leave is not an adequate alternative remedy that an applicant would have to exhaust. (I am assuming for present purposes that s. 18.5 of the Federal Courts Act would present a jurisdictional bar to bringing a judicial review application in the federal courts, though there may be room for argument about the scope of the leading decision on this point, Canadian National Railway Company v. Scott, 2018 FCA 148, given Nadon JA’s repeated references therein to s. 18.5 applying only where there is a “meaningful” remedy).
In all events, the Council is an administrative decision-maker, exercising statutory powers. Such decision-makers are subject to judicial review, “the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority” (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 28). Why should the Council be any different? Indeed, in Canadian Judicial Council v. Girouard, 2019 FCA 148 the Federal Court of Appeal rejected the proposition that the Council was not subject to judicial review because it was composed exclusively of judges, and Bill C-9 would in fact insert non-judicial members into Council decision-making (82). When exercising statutory powers, judges (especially when assisted by lay members) are properly subject to the oversight of the courts “to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes” (Dunsmuir, at para. 28).
It is true that there is no general right to judicial review of administrative decision-makers. Many federal regimes, including immigration, broadcasting and railway regulation, make the intervention of the courts contingent on seeking leave, and there is nothing inherently problematic about this (see e.g. Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, at paras. 64-73). But there is a categorical difference between seeking leave to a first-instance or appellate court (where the applicant/appellant only needs to demonstrate an arguable case) and seeking leave to the Supreme Court of Canada (where the proposed appellant must demonstrate a question of national importance). It is not clear why the Council should be singled out for special legislative treatment.
Second, it might also be possible to circumvent the privative provisions by seeking judicial review in Federal Court of the screening decisions, challenging the Council at every step of the way. Ordinarily, judicial review of interlocutory decisions is available only in exceptional circumstances, but an applicant could certainly argue that the fact that an administrative process terminates only with a right to seek leave rather than with a right to seek judicial review would justify Federal Court oversight of interlocutory decisions.
Hanging over all of these arguments is the constitutional principle of judicial independence. Security of tenure is one of the hallmarks of the independence of the judiciary and limiting the recourse a judge might have to judicial oversight of the discipline process certainly rubs up against this principle. Whatever the merits of these arguments, recent history suggests that they would be made by judges seeking to stretch out the disciplinary process as much as possible. Bill C-9 attempts to prevent this by providing (146(2)) that judges will not be reimbursed for fees incurred when seeking judicial review of Council decisions. I question, though, whether a judge might not contest this provision too, on the basis that it interferes with judicial independence by undermining the judge’s security of tenure.
These problems would be avoiding by deleting the privative provisions and providing instead for an appeal to the Federal Court of Appeal. Here, the standard of review on extricable questions of legal principle would be correctness (with the possibility, of course, of seeking leave to the Supreme Court of Canada) with the standard of palpable and overriding error applying otherwise. Therefore, there would be meaningful judicial oversight, the absence of the privative provisions would make recourse to the superior courts implausible, there would be no argument that exceptional circumstances would justify judicial review of interlocutory decisions, and judicial discipline matters could be brought to a relatively swift resolution.
Division 23 of this year’s Budget Implementation Act (C-47) would make several amendments to the Canada Transportation Act, the goal of which is “to strengthen Canada’s passenger rights regime, streamline the processes for administering air travel complaints before the Canadian Transportation Agency (Agency), and increase air carriers’ accountability”. Two aspects of the new regime are quite surprising.
First, proceedings before the Agency will be confidential:
85.09 All matters related to the process of dealing with a complaint shall be kept confidential, unless the complainant and the carrier otherwise agree, and information provided by the complainant or the carrier to the complaint resolution officer for the purpose of the complaint resolution officer dealing with the complaint shall not be used for any other purpose without the consent of the one who provided it.
This is a breach of the open justice principle, with the effect that proceedings before the Agency will be conducted in secret. Perhaps the rationale here is that the complaints resolution officers (82.01(1)) engage in mediation (85.01) which is best conducted in private. But the confidentiality clause sweeps beyond the mediation stage to encompass the entirety of air passenger proceedings before the Agency, including those that are quasi-judicial in nature. It is difficult to see how this clause would survive constitutional challenge based on the open justice principle grounded in s. 2(b) of the Charter of Rights and Freedoms. (No Charter statement has been published yet for Bill C-47).
Even decisions of the Agency on air passenger matters will not necessarily be published. Although there is a presumption of publication of an entire order when the order is made by a panel (85.13) there is a much more limited presumption when the order is made by a complaints resolution officer. And in both instances, “The Agency may, at the request of a complainant or carrier, decide to keep confidential any part of an order…”, save for the flight number, date of departure, decision about whether the delay was in the airline’s control and a statement as to the outcome (85.14(2)). Whether the Agency could exercise this discretion to systematically not publish decisions is doubtful, as the power has to be exercised in accordance with the Charter and conform to the open justice principle. Indeed, as I remarked a few years ago on a controversy involving the social security tribunal, systematic non-publication violates procedural fairness:
Fairness is imperilled by selective publication in at least two ways. First, government agencies are repeat players before the tribunals and will have access internally to large banks of decisions. This creates an inégalité des armes between the government and the individual (especially if the individual is self-represented). Second, the tribunal members will presumably try to achieve some sort of consistency in their own decision-making and in doing so take ‘official notice’ of their past decisions. Doing so without revealing these decisions to the parties concerned is unfair.
Second, the Agency may make binding guidelines (85.12(3)) “respecting the manner of and procedures for dealing with complaints” (which is sensible) and “setting out the extent to which and the manner in which, in the Agency’s opinion, any provision of the regulations applies with regard to complaints” (85.12(1)). Such guidelines, although binding on complaints resolution officers, are not subject to the Statutory Instruments Act and are thus not required to be tabled in Parliament (85.12(4)). Instead, they are to be “be published in any manner that the Agency considers appropriate” (85.12(3)).
Guidelines can, of course, provide useful flexibility to administrative decision-makers and the content of guidelines may legitimately influence the interpretation and application of binding law (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61). But neither Agraira nor Kanthasamy addressed a situation where a decision-maker could make binding guidelines. A binding guideline is a command from a hierarchical superior, not an interpretive tool. It is a form of hard law rather than soft law. It has the pathologies of soft law but not its benefits.
Taken together, these provisions would create mechanisms for binding mediation and adjudication that would operate largely in secret. Decision-making would be done in the shadows, on the basis of past decisions and guidelines that have only seen the light of day to the extent the Agency chooses. Open justice should be the default principle but it does not have much purchase in Bill C-47.
In this regard, C-11 is better, as decisions are presumptively to be published (115, 122). A hearing panel may decide to hold hearings in private where it considers the “public interest” requires it. It is not clear why the Council should be empowered to make this determination on its own motion rather than at the instance of a party who is obliged to provide cogent reasons for confidentiality. One hopes that in applying the “public interest” standard hearing panels will import the exacting criteria set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (as, indeed, the Charter statement on Bill C-9 envisages). Regardless, the spirit of openness should animate Bill C-47, in respect of hearings and decisions, and the power to make binding guidelines should be dropped or made subject to meaningful parliamentary and/or public scrutiny.
Judicial oversight and open justice are settled, important constitutional principles. Legislation should be drafted to give them effect, not to avoid applying them. It would be appropriate in both instances for Parliament to amend the proposed legislation before the provisions make it onto the statute book.
UPDATE: I am told that just yesterday the Senate Standing Committee on Constitutional Affairs amended Bill C-9 to provide for an appeal to the Federal Court of Appeal. Several briefs submitted to the Committee urged this change. Let us hope that the amendment is accepted by the House of Commons. HT Lyle Skinner.
This content has been updated on May 18, 2023 at 18:08.
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