My subject this afternoon is the recent decision of the Quebec Court of Appeal in Procureur général du Québec c. Petrishki, 2025 QCCA 893, from which the Supreme Court has granted leave to appeal.

The central issue in Petrishki is the working conditions of some sixty special clerks and bankruptcy registrars. More precisely, the question is whether the SC/BR are protected by judicial independence, the most significant consequence of which is the need to put in place objective guarantees of their financial security, security of tenure, and administrative independence.

Both the trial judge and the majority of the Court of Appeal (in reasons written by Justice Morissette) held that the Constitution of Canada guarantees the independence of the SC/BR — insofar as they exercise adjudicative functions, they are officers of the court protected by the unwritten principle, rooted in the Preamble to the Constitution Act, 1867, of judicial independence. Justice Bachand, for his part, in concurring reasons, held that the SC/BR are protected only by the guarantees set out in the Charter of Human Rights and Freedoms.

This decision is of significant interest to members of administrative tribunals. In tracing the contours of the judicial independence of the SC/BR, Justice Morissette used administrative tribunals as points of contrast:

On the pretext that SC/BR are civil servants and employees of the state entrusted with tasks of a quasi-judicial nature, one might be tempted to assimilate them to members of administrative tribunals who also exercise partly analogous powers. I believe this would be to approach the problem backwards. In my view, the trial judge has already firmly rejected such a view, implicitly if not explicitly. The Ocean Port Hotel decision, though cited by the appellant, provides some relevant information on this point that supports the judgment under appeal … The functions performed by SC/BR are much closer, in fact, to the adjudicative/judicial paradigm than to the quasi-judicial/administrative paradigm. It is moreover paradoxical that, in practice, the degree of security of tenure, administrative independence, and financial security of the latter is currently far more constraining on the executive than that of the former (paras. 45, 47).

SC/BR unquestionably exercise adjudicative powers. With limited exceptions, these powers span a wide range of law falling within the jurisdiction of civil courts and, unlike many administrative tribunals, they are in no way dependent on executive policy. Being holders of a judicial function by nature, which in the eyes of informed litigants requires independent and impartial exercise [97], SC/BR also embody, in their own way, a fundamental constitutional principle, that of the separation of the judiciary on the one hand from the legislature and executive on the other. I note that, without the contribution of SC/BR, it would be the judges of the Court of Quebec, or those of the Superior Court, who would be consumed by a significant volume of interlocutory matters and uncontested files. The SC/BR thus collectively constitute an essential component of the judicial branch. They form an integral part of it (para. 74).

Thus, the SC/BR would be protected by the Constitution of Canada, while members of administrative tribunals are not. The latter will enjoy a measure of independence under section 23 of the Quebec Charter (and, in certain circumstances, sections 7 and 11 of the Canadian Charter of Rights and Freedoms), but, generally speaking, the protection afforded to their financial security, security of tenure, and administrative independence is only that granted by the legislature.

However, contrary to what Justice Morissette contends, in certain contexts administrative tribunals do exercise adjudicative functions and should equally be among those who benefit from the objective conditions and guarantees flowing from the unwritten principle of judicial independence.

(1) Administrative tribunals exercise adjudicative functions

The starting point for Justice Morissette is the Supreme Court of Canada’s decision in Ocean Port Hotel. There, Chief Justice McLachlin stated:

…administrative tribunals are not constitutionally separate from the executive. They are, in fact, created precisely for the purpose of implementing government policy. To fulfil this function, they may be called upon to make quasi-judicial decisions. They may in this sense be seen as straddling the constitutional divide between the executive and judicial branches. However, since their primary function is to apply policy, it properly falls to Parliament and the legislatures to determine the composition and organization that will allow administrative tribunals to discharge the mandates assigned to them (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781, at para. 23).

To be sure, there are functions performed by administrative tribunals that fall within the domain of public administration and are imbued with general public interest considerations. This was the case in Ocean Port Hotel, whose “primary function” was “the granting of licences” (para. 33). The Board in question had an economic regulatory mandate, charged by the legislature with responsibility for overseeing the sound administration of the liquor licensing regime. Such a body generally has the power to enact general standards governing the conduct of regulated persons (sometimes by regulation, sometimes through guidelines); to investigate in order to ensure that regulated persons are acting in conformity with those standards; to prosecute offenders; and to sanction non-compliant parties as the case may be. See also Procureur général du Québec c. Duquette, 2025 QCCA 616 (the Régie de l’énergie is involved in the formulation and implementation of government policy).

Yet the silences of Ocean Port Hotel are equally important. Since Ocean Port Hotel concerned an economic regulatory body that occasionally exercised adjudicative functions, it is incorrect to infer from it that all administrative tribunals exist to implement government policy or are otherwise implicated in the development of such policy. In fact, many administrative tribunals exercise adjudicative functions, and indeed exercise only adjudicative functions. Their role is to interpret legislative provisions, identify the material facts, and issue reasoned conclusions based on the application of law to those facts.

Curiously, both Ocean Port Hotel and Petrishki pass over in silence the fact that the Supreme Court has already recognized that administrative tribunals can exercise adjudicative functions. Indeed, in the Reference re Residential Tenancies Act, 1979, [1981] 1 SCR 714, the Court explained how the legislature may create administrative tribunals without encroaching on the core jurisdiction of the superior courts. In elaborating a three-step test, Justice Dickson expressly recognized that administrative tribunals can exercise adjudicative functions:

When the tribunal is faced with a private dispute between parties and is called upon to decide by applying a recognized set of rules in a manner consistent with fairness and impartiality, it is then normally acting as a “judicial body”. To borrow the words of Professor Ronald Dworkin, the judicial function raises questions of “principle”, that is, the examination of the opposing rights of persons or groups of persons. These may be contrasted with questions of “policy” which raise divergent views regarding the welfare of the community as a whole (at p. 735).

At the third step of the test set out in the Reference, an administrative tribunal exercising adjudicative functions is nonetheless constitutionally permissible if those functions are “merely ancillary or auxiliary to its general administrative functions … or … necessarily incidental to the broader purposes of the legislature …” (at p. 736). But an adjudicative function remains an adjudicative function: the application, by a neutral decision-maker, of a body of normative rules to factual conclusions established through a rigorous process.

We can see, at the second step of the test, a distinction between different types of administrative body — entities like an Energy Board on one side, charged with the welfare of the community as a whole, or at the very least with balancing the interests of a public utility’s shareholders and the consumers of that service, and an administrative tribunal exercising an adjudicative function, such as the Residential Tenancy Commission whose constitutionality was at issue in the Reference:

When seized of a dispute, the Commission must decide the respective obligations and rights of the parties according to the terms of the Act. The Commission does not have an unfettered discretion to “arrange things”. The powers it may invoke and the remedies it may grant are restricted by the terms of the Act. In no case is one person’s right sacrificed for the benefit of a group of persons or a common policy. The Commission deals exclusively with questions of contract or property law between landlords and tenants (at pp. 743–744).

The Supreme Court itself recognized, in Bell Canada, that certain administrative tribunals exercise adjudicative functions in a manner comparable to courts of law:

The primary function of the Canadian Human Rights Tribunal is adjudicative in nature. It holds formal hearings on complaints referred to it by the Commission. It holds several of the powers of a court of law. It is empowered to make findings of fact, to interpret and apply the law to the facts before it, and to grant appropriate remedies. Moreover, its hearings are structured in substantially the same manner as a formal trial before a court of law. The parties before the tribunal present evidence, call and cross-examine witnesses, and make submissions on the application of the law to the facts. The Tribunal does not participate in the formulation of policy and does not conduct its own independent investigations into complaints: the legislature has deliberately assigned the investigative and policy-making functions to a separate body, namely the Commission (Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884, at para. 23).

There are numerous other examples in our current administrative state:

The Social Security Tribunal, which is responsible for faithfully interpreting and applying the various statutes governing federal social benefits;

The Tribunal administratif du Québec, which may be seized of disputes between individuals and the state concerning municipal taxation and land use planning, among other matters;

The Administrative Labour Tribunal will typically hear two parties, employer and union, in order to render an informed decision on an application for certification after having interpreted the applicable legislation and jurisprudence.

Sometimes the purpose is to replace a court of law with an administrative tribunal in the hope of achieving a more efficient and less costly dispute resolution system; sometimes it is to create new norms to be interpreted and applied by an administrative tribunal. In either case, there is no “government policy” that these administrative tribunals are applying or advancing. There is a statute, sometimes accompanied by jurisprudence and principles of common law, that must be interpreted and applied to factual situations. Considerations of public policy are entirely foreign to the resolution of questions placed before these bodies. Indeed, if such a tribunal were to render a decision based on its perception of “government policy”, its decision would surely be unreasonable on account of reliance on irrelevant considerations (see, e.g.: Canada (Attorney General) v. Chu, 2022 FCA 105).

On this point, we may adapt the words used by Justice Morissette in posing a hypothetical question about the status of the SC/BR:

One cannot claim, it seems to me, that the SC/BR correspond in any way to this description. In the service of what government policy are they employed? That of the Civil Code of Quebec? The Code of Civil Procedure? The Divorce Act? The Bankruptcy and Insolvency Act? (at para. 46).

Indeed, we could replace the examples chosen by Justice Morissette with the comprehensive codes interpreted by the above-mentioned administrative tribunals without altering his meaning in the slightest: their role is to interpret and apply the Old Age Security Act, the Act respecting municipal taxation, or the Labour Code, just as it is the role of the SC/BR to interpret and apply the Civil Code of Quebec, the Code of Civil Procedure, the Divorce Act, and the Bankruptcy and Insolvency Act.

In all cases, “government policy” finds expression in legislative provisions. In interpreting and applying those provisions, the decision-maker in question — whether SC/BR or administrative judge — never has recourse to “government policy” but rather decides, according to their own conscience, the outcome of a dispute between two parties or between an individual and the state.