The End of Administrative Independence? McAnsh v. Ontario, 2023 ONSC 3537

As is well known, administrative tribunals enjoy no constitutional status in Canada and benefit from no entrenched protection for independence. In McAnsh v. Ontario, 2023 ONSC 3537, the representative plaintiff sought to present a novel administrative independence claim in contract (Disclosure: I aided counsel for the representative plaintiff in this case though I had no involvement in the drafting of the statement of claim). The terms of appointment of the representative plaintiff (and many others) were not renewed by the Ontario government elected in 2018; he initiated a class action alleging that the non-renewals constituted a breach of contract.

Morgan J struck out the claim, holding that it could not give rise to an arguable cause of action. On one level, given the fate of most administrative independence claims, the result is unsurprising: fixed-term appointments are constitutional (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781) and administrative tribunal independence enjoys no constitutional protection (Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61), so the expiry of an administrative tribunal member’s appointment seems not to give rise to any legal wrong. On another level, however, the claim was more plausible (in my admittedly biased view) than Morgan J’s forthright analysis would suggest, arguing that the relationship between administrative tribunal members and the government should be understood as contractual in nature as a means of protecting administrative independence. Ultimately, the representative plaintiff emphasized the private law nature of the relationship; Morgan J preferred to conceptualize it as a public law relationship, as the Crown argued.

Morgan J struck the claim out based on his analysis of the framework for tribunal appointments in Ontario. First, all tribunal appointments are made by the provincial cabinet: “The constituent statutes of each of Ontario’s active adjudicative tribunals provide for their members being appointed on the advice of Cabinet. These appointments are made by way of an [Order in Council] signed by the relevant Minister, the Chair of Cabinet, and the Lieutenant Governor” (at para. 17). Although s. 14 of the Administrative Tribunals Accountability, Governance and Appointments Act, 2009, 2009 SO c 33, Sched 5 makes the consent of the chair of an adjudicative tribunal a pre-condition to any appointment or reappointment, this does not displace cabinet’s discretion:

The Chair’s recommendation is made to the Minister of whichever ministry oversees the given tribunal, who then decides whether to recommend the appointment to Cabinet. Accordingly, the AATAGAA makes a recommendation by the Chair of the tribunal a pre-condition of eligibility for a potential appointment or reappointment, but not a guarantee. The legal authority to appoint or reappoint members rests with Cabinet through the constituent statute of the tribunal in question (at para. 20).

Second, there are cabinet-level policies in Ontario about administrative tribunal appointments. These provided that appointees serve for a maximum term of 10 years, comprising an initial two-year appointment, a subsequent three-year reappointment and a final five-year appointment:

Term of Appointment – Adjudicative Tribunals and Regulatory Agencies

In the case of appointments to a given position on an adjudicative tribunal or regulatory agency and subject to the requirements of the provincial agency’s enabling legislation or other law the term of appointment is a maximum of ten years, in total.

In the case of a person appointed as an Associate Chair, Vice-Chair or Member of an adjudicative tribunal or regulatory agency and, subject to the recommendation of the Executive Chair or Chair in exceptional circumstances:

There will be an initial appointment for a period of two years;

On the recommendation of the Executive Chair or Chair, the appointee is eligible for reappointment for a term of three years; and

After completion of terms totalling five years, and on the recommendation of the Executive Chair or Chair, the appointee is eligible for re-appointment for a further term of five years.

The ultimate decision to re-appoint rests with the appointing authority. Re-appointment to a further additional term beyond the maximum of ten years in total, may only be made in exceptional circumstances in the public interest.

Appointees will be notified of the expiry date of their appointment at least four months prior to the expiry of their term of appointment.

There is no obligation on the government to re-appoint individuals for subsequent terms at the conclusion of any appointment (at para. 25, quoting the 2015 Directive).

Based on this framework, Morgan J held that the contract claim was doomed to fail:

Reappointment requires a positive recommendation from the Chair, support by the responsible Minister, and the exercise of discretion by Cabinet. That exercise is subject only to the usual constraints on public decisions in the form of human rights considerations, corruption, etc. An implied fixed term contract of 10 years, as argued by the Plaintiff, is not only contrary to the express words of the OIC appointing him, it would be an unenforceable restriction on Cabinet’s statutory authority. As Defendant’s counsel put it in her factum, the Chair cannot bind the Minister, the Minister cannot bind Cabinet, and the Cabinet at the time of appointment cannot bind future Cabinets (and para. 48).

As for the references to administrative tribunal independence in the representative plaintiff’s statement of claim, Morgan J commented expansively:

There is nothing illegitimate in a new government making appointments to administrative agencies, boards, and tribunals which take into account its own policy choices and political inclinations. Government representatives such as the Cabinet members that make the appointments in issue are required to ensure that the appointments are made in compliance with applicable legislation; beyond that, however, there is nothing more to restrict the exercise of discretion (at para. 65).

I think it is useful, notwithstanding Morgan J’s analysis, to clearly set out the representative plaintiff’s argument. The representative plaintiff conceptualized his relationship with the government of Ontario as contractual: his argument was that there was a contract for 10 years, with the power to reappoint being a discretionary contractual power (exercisable only in good faith, for proper purposes and reasonably (see here)). This conceptualization was based on two foundations.

First, the starting point is that most of those who work for the government are in a contractual relationship. As Major J put it in Wells v. Newfoundland, [1999] 3 SCR 199, at para. 21, “jobs with the government are in substance contractual relationships”. Moreover, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 (a decision Morgan J does not mention at all), LeBel and Bastarache JJ reiterated this starting point and eliminated the distinction between office holders and contractual employees for the purposes of procedural fairness:

The important point for our purposes is that Wells confirmed that most public office holders have a contractual employment relationship. Of course, office holders’ positions will also often be governed by statute and regulations, but the essence of the employment relationship is still contractual. In this context, attempting to make a clear distinction between office holders and contractual employees for the purposes of procedural fairness becomes even more difficult (at para. 97).

True, Dunsmuir only eliminated the concept of office for the purposes of the law of procedural fairness. Note, though, that in Wells (in a passage not mentioned by Morgan J), Major J held that the general law of contract is applicable to “most senior public officers”, to the exception only of “judges, ministers of the Crown and others who fulfill constitutionally defined state roles” (at para. 31, emphasis added). But, of course, administrative tribunal members do not have “constitutionally defined state roles”, quite the opposite; they are mere creatures of statute. As far as judges are concerned, they have, Major J noted, constitutional protection for their independence (at para. 32). The same is evidently not true of members of administrative tribunals.

Consider, now, the following passage from Morgan J’s analysis:

Unlike a person in a Wells-like managerial or administrative position, a common-sense view of an adjudicator like the Plaintiff and putative class members is that they are not akin to government contract workers. Rather, they are entirely independent of government in both form and function (at para. 32).

This extends the ‘independence of government’ exceptions in Wells to a category of individual — statutory decision-makers exercising public functions without constitutional status — not contemplated in Wells. The result is that unlike superior court judges and notwithstanding Morgan J’s recognition of their independence of government “in both form and function”, administrative tribunal members benefit from no protection of tenure outside the strict limits of their term of appointment: “Since the Supreme Court has ruled that fixed term appointments are acceptable, it goes without saying that there is no requirement of reappointment at the end of a fixed term” (at para. 62). This expansion of the carefully enumerated list of exceptions in Wells is not, in my view, compelling: administrative tribunal members can be viewed not as office holders subject to special rules but as contractual employees entitled to the protections of the general law of contract.

This leads me to, second, the normative foundation for the representative plaintiff’s conceptualization of his relationship with the government. The fact that administrative tribunal members are to be “independent of government in both form and function” supports the representative plaintiff’s argument: recognizing a contractual relationship would mean they have protections through the law of contract that would safeguard their independence (in a way that public law protections manifestly do not). As the representative plaintiff argued in his written submissions:

In the context of an appointment to serve as a tribunal adjudicator and vice-chair fulfilling quasi-judicial functions, the reasonable expectation of the parties is that adjudicative independence will be protected. The creation of a contract of employment for a fixed term, backed up by the fundamental principle of good faith, is the means of giving effect to these reasonable expectations relating to adjudicative independence. The contract as pleaded protects security of tenure, insulating adjudicators from external pressure. The contract is subject to the performance of the duties associated with the position: failure to perform those duties may lead to termination of the contract via the exercise of the reappointment power, but this power must be exercised in good faith and consistently with the precepts of adjudicative independence.

As such, the reasonable expectations of the Plaintiff/Responding Party and the Crown were that adjudicative independence would be protected in both its institutional and individual aspects. The means of protecting these reasonable expectations was to create a fixed-term contract of 10 years subject to performance of the duties associated with the role. This gave the Plaintiff/Responding Party the security of tenure necessary to perform quasi-judicial functions independently and impartially. Any power to reappoint the Plaintiff/Responding Party had to be exercised in accordance with the fundamental common law principles of adjudicative independence.

In a nutshell, if administrative tribunal independence is normatively valuable then the common law of contract is an appropriate means of protecting it. The required recognition of normative value comes from the common law of procedural fairness, which protects administrative independence in both a structural sense (albeit weakly: Ocean Port, at para. 21) and in an individual sense (see here and here).

Understood in the context of a claim in contract, underpinned by public law values, the allegation that the representative plaintiff was given assurances that he would be reappointed looks much less sinister than Morgan J made it out to be (at paras. 45, 63) and, indeed, is part of the “negotiations” contemplated by Major J in Wells (at para. 21) as leading to the formation of a contract.

In the end, however, and notwithstanding the attraction I have for the representative plaintiff’s arguments (“a ill-favoured thing, but mine own”), Morgan J found that it was plain and obvious that the claim could not succeed. The finding is unlikely to be appealed and so represents a conclusive end, in Ontario at any rate, for contract-based arguments in support of administrative independence. With both public law and private law seemingly leading to dead ends, advocates of more robust norms of independence for administrative tribunals will have to turn to the political process.

This content has been updated on August 7, 2023 at 21:17.