Administrative Tribunals: Structural Variability
In a previous post I described the procedural flexibility of administrative tribunals (having, before that, outlined the variety of functions administrative tribunals can play). In this post I describe the structural variability of administrative tribunals.
The starting point is that each administrative tribunal is a discrete statutory creation, with its own legislative mandate and suite of powers. All matters of “composition and structure” of administrative tribunals are the preserve of the legislature[1] and, as such, each tribunal is somewhat ad hoc. To take one example amongst many, the Immigration and Refugee Board is constituted by the Immigration and Refugee Protection Act, which exhaustively describes its composition and structure.[2] Nonetheless, there have been some legislative interventions seeking to ensure a level of consistency at the level of organizational structure and composition.
(i) Organizational Structure
In Ontario, the guiding principle of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009[3]is “clustering”.[4] The provincial cabinet is empowered to group administrative tribunals together where “the matters that the tribunals deal with are such that they can operate more effectively and efficiently as part of a cluster than alone”.[5] The idea was to promote “flexibility and dynamism, with clusters afforded the freedom to develop their own organizational cultures and institutional mandates tailored to the particular needs, demands and capacities of the tribunals’ users groups and memberships”.[6] Synergies across administrative tribunals with similar subject-matter expertise were expected to emerge, improving “the quality of services offered to the public by sharing resources, expertise and administrative and professional support”.[7]. In practice, however, the experience has been decidedly mixed. Initially, several clusters were created – one for environment and land use, one for social justice and one for public safety– but now there is only one large cluster known as Tribunals Ontario.[8] The province’s tribunal structure has been beset by delays[9] and allegations of sub-par decision-making:[10] these are perhaps not attributable to the clustering principle but equally the clustering principle did little to prevent them.
Quebec, meanwhile, adopted a super-tribunal model.[11] The Act respecting administrative justice establishes the Administrative Tribunal of Quebec, organized into four divisions. The social affairs division deals with “matters of income security or support and social aid and allowances, of protection of persons whose mental state presents a danger to themselves or to others, of health services and social services, of pension plans, of compensation and of immigration”.[12] Matters relating to real property, such as calculation of compensation for expropriation and of land values for municipal taxation, are the preserve of the immovable property division.[13] The territory and environment division is responsible for land-use and waste management decisions.[14] The economic affairs division, meanwhile, has jurisdiction over “decisions concerning permits, licences, certificates or authorizations to carry on a trade or a professional, economic, industrial or commercial activity”.[15] Notice, however, that not every administrative tribunal in Quebec falls under the aegis of the Administrative Tribunal of Quebec. Labour relations, human rights and professional discipline each have their own bespoke administrative tribunal structure. In the end, despite the different starting points – clustering in one province, a super-tribunal in the other – Quebec and Ontario have ended up in similar positions, organizationally speaking.
At the federal level, there is a statutory umbrella organization known as the Administrative Tribunals Support Service of Canada. The statute creating the organization is somewhat skeletal but nonetheless clearly expresses its raison d’etre as the “provision of the support services and the facilities that are needed by each of the [specified] administrative tribunals to exercise its powers and perform its duties and functions in accordance with the rules that apply to its work”.[16] The ATSSC does not have any operational control over tribunals – “the chairperson of an administrative tribunal continues to have supervision over and direction of the work of the tribunal”[17] – but provides logistical support, such as web servers, secretarial services, teleconferencing facilities, legal analysis and review of draft decisions. It is probably not necessary to have statutory authority for an umbrella organization of this nature – British Columbia’s equivalent is an agency within the Ministry of the Attorney General[18] – as the ATSSC plays a coordinating and resourcing role and does not seek to control the day-day-operations of administrative tribunals.
(ii) Composition
As with organizational structure, the composition of administrative tribunals is largely prescribed by the statute constituting the tribunal, as a brief survey of federal administrative tribunals illustrates. To take the Immigration and Refugee Board as an example again, the Board is overseen by a chairperson and “[such] other members as are required to ensure the proper functioning of the Board”.[19] The Board is divided into four sections, with first-instance and appellate tribunals with jurisdiction over refugee and immigration matters. The chairperson and appellate members are appointed by the federal cabinet for seven-year periods.[20] By contrast, first-instance members are appointed as members of the civil service.[21] Other federal administrative tribunals have different terms, methods of appointment and status. To take a random selection, the chairperson and vice-chairpersons of the Canada Industrial Relations Board are appointed by the federal cabinet for five-year terms[22] whereas ordinary members – who must be evenly split between employer and employee representatives[23] – can only serve three-year terms,[24] though there is expression provision for reappointment[25]; members of the Transportation Appeal Tribunal of Canada are all appointed by federal cabinet for seven years and may be reappointed[26]; and the Environmental Protection Tribunal of Canada draws its members from a “roster” appointed by the Minister of the Environment (who is the protagonist in matters heard by the Tribunal) for renewable three-year terms.[27] Interestingly, there is no obvious difference between the appointment and reappointment provisions of these tribunals, which are adversarial or inquisitorial, and those of federal tribunals with regulatory functions.[28]
Government discretion in making administrative tribunal appointments and reappointments is close to absolute.
Federally, there are no statutory constraints at all relating to appointment and reappointment. However, there is provision for security of tenure. One constant is that members can only be removed during their term for cause, which involves a procedurally demanding “personalized inquiry”[29] into the factual basis for removal (though the federal cabinet is due significant deference on whether, as a matter of substance, removal is appropriate[30]).
Provincially, the most spectacular example of constraint-free discretion is found in Saskatchewan’s Interpretation Act, s. 20(1) of which permits an incoming government to immediately terminate, without cause, any appointment to an administrative tribunal.[31] When an incoming government duly terminated the appointments of the chair and vice-chair of the provincial labour relations tribunal, the Saskatchewan Court of Appeal reluctantly concluded that the government had acted lawfully, aptly describing this provision as “extraordinary but clear”.[32]
Even where statutory constraints are provided for, they may in practice turn out to be paper tigers. Consider Ontario’s Adjudicative Tribunals Accountability, Governance and Appointments Act.[33] Section 14(1) provides for a competitive, merit-based appointment process, including the development of criteria relating to subject-matter expertise and aptitude for adjudication. The responsible minister must, in addition, publish the criteria for this process.[34] However, the quality of tribunal appointments in Ontario has been subject to criticism, with the relative open-endedness of the statutory appointment criteria a particular target of critics: a vast pool of candidates will be capable of meeting these vague criteria, giving the provincial government a relatively free hand in making appointments.[35] In addition, the statutory criteria apply only to appointment, not to reappointment, and there is no statutorily-mandated term of appointment (such that a member can be appointed for a very short period of time). Generally speaking, appointments to administrative tribunals are seen by governments as opportunities for political patronage or (albeit less often) for furthering ideological or partisan agendas.[36]
Amongst the Canadian provinces, Quebec is an outlier. Members of the Administrative Tribunal of Quebec are appointed for life subject to good behaviour,[37] which is overseen by an independent administrative justice commission that operates at arm’s length from the government.[38] Other administrative tribunal members are not so lucky. Uniquely, however, Quebec has a quasi-constitutional guarantee of tribunal independence, meaning that the reappointment and removal processes are subject to strong procedural and substantive guarantees. No other province has made similar provision for the protection of the independence of administrative tribunals.
[1] Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781, at para. 24.
[2] SC 2001, c 27, Part 4.
[3] SO 2009, c 33, Sch 5.
[4] The British Columbia legislation also provides for clustering though it seems that no administrative tribunals in the province have been clustered as yet: Administrative Tribunals Act, SBC 2004, c 45, s. 10.1
[5] Ibid., s. 15.
[6] Lorne Sossin and Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for Administrative Justice?” (2012) 12 Oxford University Commonwealth Law Journal 157, at p. 160.
[7] Kevin Whitaker, Final Report of the Agency Cluster Facilitator for the Municipal, Environment and Land Planning Tribunals (Minister of Government Services, 2007), at p. 6.
[8] O. Reg. 126/10: Adjudicative Tribunals and Clusters.
[9] Tribunals Ontario, “Tribunals Ontario Statement on Ombudsman Ontario’s Investigation into Delays at the Landlord and Tenant Board” (4 May 2023).
[10] Tribunal Watch Ontario, “The Human Rights Tribunal of Ontario: What Needs To Happen” (15 January 2023).
[11] Ron Ellis, “Super Provincial Tribunals: A Radical Remedy for Canada’s Rights Tribunals” (2002) 15 Can. J. Admin. L. & Prac. 15, at p. 19.
[12] Act respecting administrative justice, CQLR c J-3, s. 18. The mental health functions are performed by a division within the social affairs division known as the mental health division: ss. 19, 22, 22.1.
[13] Ibid., s. 32.
[14] Ibid., s. 34.
[15] Ibid., s. 36.
[16] Administrative Tribunals Support Service of Canada Act, SC 2014, c 20, s 376, s. 10.
[17] Ibid., s. 14.
[18] See Government of British Columbia, “Tribunal Transformation” (13 May 2023) describing the Tribunal and Agency Support Division.
[19] Immigration and Refugee Protection Act, SC 2001, c 27, s. 152.
[20] Ibid., s. 153(1)(a).
[21] Ibid., ss. 169.1(2), 171(2).
[22] Canada Labour Code, RSC 1985, c L-2, s. 10(1).
[23] Ibid., ss. 9(2)(c), (d).
[24] Ibid., s. 10(2).
[25] Ibid., s. 12(1).
[26] Transportation Appeal Tribunal of Canada Act, SC 2001, c 29, ss. 6(1), (2).
[27] Canadian Environmental Protection Act, 1999, SC 1999, c 33, ss. 243, 245.
[28] See e.g. Canadian Radio-television and Telecommunications Commission Act, RSC 1985, c C-22, s. 3; Nuclear Safety and Control Act, SC 1997, c 9, s. 10; Canadian Energy Regulator Act, SC 2019, c 28, s 10, ss. 26, 28.
[29] Vennat v. Canada (Attorney General), 2006 FC 1008, [2007] 2 FCR 647, at para. 166.
[30] Shoan v. Canada (Attorney General), 2018 FC 476, at para. 91.
[31] 1995, SS 1995, c I-11.2.
[32] Saskatchewan Federation of Labour v. Saskatchewan, 2010 SKCA 27, at para. 53.
[33] 2009, SO 2009, c 33, Sch 5. See also Administrative Tribunals Act, SBC 2004, c 45, s. 2.
[34] Ibid., s. 14(3).
[35] Tribunal Watch Ontario, “Statement of Concern about Tribunals Ontario” (14 May, 2020).
[36] See generally Ron Ellis, Unjust by Design (University of British Columbia Press, Vancouver, 2013).
[37] Act respecting administrative justice, CQLR c J-3, s. 38.
[38] Ibid., Title III.
This content has been updated on July 12, 2023 at 15:39.