Tribunal Competence and Expertise
The Principles for Adjudicative Tribunals & Administrative Justice Webinar Series:
Tribunal Competence and Expertise
We have 4 speakers, each commenting on the topic of tribunal competence and expertise from a different perspective. You will find the blog posts from the speakers as you scroll down the page. The speakers and four perspectives are as follows:
- Doctrinal law perspective – Professor Paul Daly, University Chair in Administrative Law and Governance, University of Ottawa
- Tribunals’ perspective – Michael Gottheil, Chief of the Commission and Tribunals, Alberta Human Rights Commission
- Inclusion perspective– Lori Mishibinijima, Program Manager, Indigenous Initiatives & Reconciliation, Osgoode Hall Law School
- Tribunal users’ perspective – Marion Overholt, Executive Director, Community Legal Aid
Doctrinal Law Perspective
Blog Post by Paul Daly
The Statement of Principles makes a useful distinction between subject-matter expertise and competence and dispute-resolution expertise and competence. Both are vital. In many regulatory regimes, competence in dispute resolution – finding ways to ensure a matter comes to a conclusion satisfactory to all concerned – is at least as important as subject-matter expertise.
With this distinction in mind, I will analyze the Canadian black-letter law on expertise and competence. From a doctrinal perspective, the law sometimes requires expertise and competence in these areas – mostly through the demands of the common law – and generally facilitates the development of expertise and competence.
Requirements of Expertise and Competence
Legislation
Occasionally, legislation provides directly or indirectly for what might loosely be described as expertise and competence requirements.
Directly, the Canadian Environmental Protection Act requires that review officers (appointed to the Environmental Protection Tribunal of Canada, of which I am a part-time member) are “knowledgeable about the conservation and protection of the Canadian environment, environmental and human health, administrative law as it relates to environmental regulation or traditional aboriginal ecological knowledge” (1999, SC 1999, c 33, s. 247). But as the Federal Court has noted on a couple of occasions, this provision mandates knowledge but not expertise: Canada (Minister of the Environment) v. Custom Environmental Services Ltd., 2008 FC 615, at paras. 21-22; Canada v. Atlantic Industrial Services, 2014 FC 775, at paras. 25-26, 29.
Indirectly, the Competition Tribunal Act provides for an advisory panel composed of people “knowledgeable in economics, industry, commerce or public affairs and may include, without restricting the generality of the foregoing, individuals chosen from business communities, the legal community, consumer groups and labour” (RSC 1985, c 19 (2nd Supp), s. 3(3)). But, of course, this is very much an indirect way of ensuring knowledge.
Another strategy is employed in the Adjudicative Tribunals Accountability, Governance and Appointments Act. Adjudicative tribunals must develop a “member accountability framework” which contains, amongst other things, “a description of the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed as a member of the tribunal” (2009, SO 2009, c 33, Sch 5, s. 7(2)(b)).
I use the word “loosely” advisedly. Nothing in these provisions guarantees substantive subject-matter expertise or competence, as opposed to general knowledge of an area of public administration. Moreover, there is no clear reference in these provisions to competence in dispute resolution.
Common Law
Historically, the expertise of tribunal members relative to courts was a key component of the standard of review analysis, playing an important role in determining whether deference is appropriate. Expertise was, however, quite fluid: the concept always had an ‘I’ll know it when I see it’ quality: see Lorne Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Difference?” (2003) 27 Advocates‘ Quarterly 478.
With the Supreme Court of Canada’s reformulation of administrative law in Vavilov, however, the conceptual fluidity has been reduced. The Supreme Court abandoned expertise as a factor in determining the standard of review and, in formulating a reasons-first approach to reasonableness review noted that a decision-maker may “demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear” (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 93). What matters now is whether the reasons for decision adequately justify the outcome, not whether the decision-maker has expertise in some general or metaphysical sense. Accordingly, the contemporary common law of substantive review requires that subject-matter expertise and competence must be demonstrated by tribunal reasons. Outputs matter more than inputs.
Whereas Vavilovian reasonableness review requires tribunals to demonstrate subject-matter expertise and competence in their reasons, the common law of procedural fairness requires that the outputs of tribunal decision-making process demonstrate the application of dispute-resolution expertise and competence. Tribunal members must run fair hearings, giving individuals a “fair crack of the whip” (Fairmount Investments Ltd v Secretary of State for the Environment, [1976] 2 All ER 865, 874 per Lord Russell of Killowen). Tribunals are masters of their own procedure, but only as long as they respect the rules of fairness (Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 SCR 560, at pp.568-569). Here, again, outputs matter more than inputs: if a decision-maker has failed to live up to the requirements of procedural fairness, statutory references to expertise will not save their decisions.
In terms of requiring expertise and competence, therefore, it is thus fair to say that the common law is more influential than statute.
Facilitating Expertise and Competence
Statutes and the common law provide floors, not ceilings. Tribunal appointment processes, training for new members and continuing professional development can go over and above – sometimes far over and far above – the requirements of expertise and competence (see, for example, the Immigration and Refugee Board’s recent Quality Assurance Framework).
Statutes provide no bar to the acquisition of further expertise and competence. Indeed, they facilitate it. Expertise and competence can be acquired on the job. Working regularly in a particular area permits the acquisition by adjudicators of “experience in the questions they consider over the course of their appointments” (Canada (Deputy Minister for National Revenue) v. Mattel Canada,2001 SCC 36, [2001] 2 SCR 100 at p. 116, per Major J). This is especially true of expertise and competence as it relates to dispute resolution, where the ability to bring matters to a conclusion satisfactory to all concerned is very much an acquired skill.
Nor does the common law erect barriers to developing tribunal expertise and competence. Indeed, the flexible approach Canadian courts have taken to adjudicative independence allows tribunals to foster internal dialogue and discussion (Iwa v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282). As long as tribunal members are not directed to adjudicate in a particular way by a hierarchical superior, tribunals can put in place processes for dialogue, discussion and even internal review – in order to foster expertise and competence – without breaching the requirements of the common law (see, a contrario, Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518).
Conclusion
From a doctrinal perspective, tribunal expertise and competence are important: statute and (especially) the common law require and facilitate the development of expertise and competence. Many of the objectives of the Statement of Principles can thus be achieved by administrative tribunals within the existing framework of black-letter law. In terms of compensation and reappointment, however, as discussed in my previous post, the current state of the law on tribunal independence means that political reform is necessary to improve the situation. More attention could also be paid to enshrining requirements of expertise and competence in statute. As such, the Statement of Principles and Tribunal Watch Ontario’s work, are a valuable contribution to public discourse.
Tribunals’ Perspective
Blog Post by Michael Gottheil
Expertise: We Can’t Always Agree on what It Means, But We All Agree We Want It
A few years ago, I was having coffee with a senior policy advisor from the Attorney General’s office. We began chatting about the relative merits of the “10 year maximum rule” for tribunal appointments in Ontario. I said that while I could appreciate the value of fixed term tenure, within single tribunals, in order to promote diversity and to ensure that tribunals don’t become stale, unless there was an overarching framework that facilitated members moving to different tribunals, the “10 year rule” risked undermining the goal of competency, expertise and a professional administrative justice sector. After all, I said, we don’t ask doctors to find something else to do after they have practiced for 10 years.
My tablemate answered, without a pause “but medicine is a profession.”
I have always thought that comment said much about the challenge faced by those who seek a robust, accessible, expert and effective administrative justice system. It is common for elected officials, staffers and perhaps the public to group all appointees into the same class of office holders: holding office at the pleasure of, and being in good favor with, the government of the day. However, given an adjudicative tribunal’s place within the administration of justice, continuing to view tribunal members in that way is both odd and decidedly unhelpful. After all, the reality of the justice system is that adjudicative tribunals serve far more people than do the Courts, and the majority of everyday legal issues have been assigned to tribunals. We live in a meritocratic world (or at least aspire to), and while there may be a lot of cynicism these days, we want our public services and democratic institutions to function efficiently and fairly.
Most governments have, or have inherited, appointment frameworks which at least purport to be based on open, competitive and merit based recruitment, where reappointment are based on performance, and the requirement that tribunal members have the core competencies to fulfill their adjudicative duties. Moreover, all governments will assert, with pride, that persons they appoint to tribunals are well qualified. Simply because someone may be appointed by an Order-in-Council, a political process, does not mean they lack the qualifications or merit to hold office. In any event, quibbling about individual appointments can be a distraction. The more important question, if one is concerned about an accessible, effective, efficient and fair justice system, is what are the optimal features of a “recruitment, appointment, reappointment and on-going professional development” framework which will support a highly competent tribunal ? What resources are needed, how are those resources determined and controlled? What institutional mechanisms will the tribunal have, including the powers of the Chair, the ability to establish rules and procedure, to assign cases, and to effectively manage the adjudicative cadre? How are tribunals themselves structured, what non-partisan public oversight structures are in place, and what sector-wide career and professional development opportunities are in place to build capacity, inter-disciplinary cooperation and excellence across the administrative justice community?
But back to my coffee discussion. Even though post Vavilov expertise may not be the central factor in determining the standard of review on appeal, Courts continue to recognize the important role tribunals play in providing justice. This includes, administering important public policy statutes that may have life-altering consequences, either for individuals, or, in the case of an environmental tribunal, for communities and generations to come. Tribunals make decisions with wide reaching economic, social and cultural impact. There is good reason why, while we may not always agree on what an expert tribunal requires, we all agree we need tribunals to have the required expertise.
There are many challenges in achieving the expert tribunal, three of which I will reflect upon. The first, is what I call the “realpolitik” of tribunal expertise. Unless and until the administrative justice sector is given constitutional protections similar to Courts, whatever frameworks for tribunal accountability, governance and appointments, whether through policy, regulation or statute, they will always be subject to the level of commitment of the particular government holding office at any point in time. The goal of tribunal expertise and competency is only partly dependent on appointments. So, strong frameworks such as the Adjudicative Tribunals Accountability and Appointment Act (ATAGAA), with principles such as those proposed by Tribunal Watch, are necessary, but not sufficient.
The second challenge flows from the nature and size of the tribunal. Tribunals with a small case load may not have a steady diet of work, or work of different sorts to permit members to maintain their expertise. Even assuming members are well qualified in their specialized subject area, they may not have sufficient opportunity to conduct hearings, work with emerging issues, write decisions, or conduct mediations. The tribunal may not have the resources to establish on going professional development program, and staff, including tribunal solicitors to support their adjudicative work.
Larger tribunals, assuming there is a commitment and deliberate focus on excellence, will not run into these problems. In addition, there are other potential ways larger tribunals can develop and sustain expertise. For example, tribunals may have several related but distinct statutory mandates, and may arrange their tribunal complement by division. For example, the Ontario Labor Relations Board has traditionally received a significant construction labour relations caseload, and has a group of members who have developed particular expertise in that area. In Ontario, where tribunal clusters or other amalgamated tribunals exist, similar subject specific assignments may enhance subject area expertise. Even more synergetic approaches, obtained through strategic cross appointments, can further a tribunal’s capacity, competency and expertise. For example, at the Environment and Land Tribunals, adjudicators with different environmental, engineering, planning and finance expertise have been assigned to panels on particular complex cases. Not only do the cross appointments and close working relationships provide for the possibility of an expert panel on a particular case, over time, adjudicators can develop more sophisticated understandings and respect for related fields. This multi-disciplinary engagement may also be fostered through professional development programs, full board meetings, and peer review and discussion of decision.
Again, the benefits that may accrue depend on deliberate efforts by the tribunal, its Chair and members. It relies on developing a culture where there is a high value placed on public service, institutional pride, collegiality, and professional development. Building a strong tribunal with a solid internal and external reputation of excellence, can also enhance expertise by expanding the pool of candidates who might be interested in joining, for both personal and professional reasons. The attractiveness of tribunal work is further enhanced by non-partisan, merit based appointments. Many highly qualified candidates may self select out of competitions if they believe that their particular, unique skill sets, or lack of political connections will mean they are unlikely to receive fair consideration.
Finally, the last reflection is one of caution. Expertise can morph into elitism. Specialist tribunals can become self-referential, insular, and even become subject to institutional capture from their traditional powerful stakeholders. In a related way, traditionally trained experts may not always be open to non-traditional sources of information, novel or emerging principles or different ways of seeing and understanding a problem. Specialized tribunals, such as those in the environmental, land use planning, energy or securities regulation may be resistant to accepting evidence from non-experts, or from those who have expertise but are not professionally trained and certified. This may be so, notwithstanding their statutory obligation to make decisions in the public interest, and based on polycentric considerations.
Further still, tribunals that have the jurisdiction or obligation to apply the Charter, Charter values, or human rights legislation may, without training, conclude those legal principles are not applicable to their specialized domains. Similarly, members will require training in systemic discrimination, gender and racial bias, and reconciliation with First Nations, Inuit and Metis Peoples. These efforts must go beyond “cultural competency” in order to facilitate “accessibility”, and interrogate whether and to what extent systemic discrimination and inherent bias may be part of their specialized or technical subject area, and policy regimes.
Conclusion
Ultimately, the call for expert, competent tribunals is a necessary one. But it is comprised of different elements, and comes with cautions.
First, it should go without saying that any tribunal should be fully competent and capable of fulfilling its important public policy mandate. To quote Philip Stanhope, Earl of Chesterfield, “any job worth doing is worth doing well.”
Second, tribunal expertise is an institutional concern. We want qualified applicants, but the specific qualifications need to be carefully considered, with diversity in the broadest sense of the word valued as one of the core aspects of merit, not an add on. Depending on the size and mandate of the tribunal, not all members need have all the competencies, and a tribunal’s needs may vary over time.
Third, expertise and competency is something that must be nurtured, worked on and supported through different means. On-going professional development, in specialized subject areas, adjudication, alternative dispute resolution, decision writing, access to justice, anti-racism, anti-discrimination and paths toward reconciliation, must all be seen with equal importance. Collegiality, peer support and succession planning are also important features of an expert tribunal
Fourth, whatever structures, principles, frameworks and statutes may be established, tribunals are public bodies. They are created by government, publically funded, with the Chair and members appointed through Order-in-Council. They are part of the democratic state, and as we have seen over the past years, in different countries and in different contexts, the sustainability of such institutions are as much dependent on popular will, as statutory regimes. We must build an understanding among the public of the importance of a strong, effective, timely and accessible administrative justice system. We must build broad support for competent, expert, and independent tribunals. We cannot rely simply on structures and statutes.
I often wonder whether we rest our hopes too much upon constitutions, upon laws, and upon courts.
These are false hopes, believe me these are false hopes.
Liberty lies in the hearts of men and women,
When it dies there, no constitution, no law, no court can save it.
– Justice Learned Hand
Inclusion Perspective
Blog Post by Lori Mishibinijima
Towards Accountable and Anti-Colonial Justice: Notes on the Statement of Principles and Representation
I’m Anishinaabe from Wiikwemkoong Unceded Territory on Manitoulin Island. I was raised in the city by a single parent who struggled financially to provide necessities like food and shelter. I completed all my elementary and secondary education in Toronto, but I didn’t know what a university was. I understand today this gap in knowledge was an impact of colonialism and poverty. My mom told me that “maybe you’ll go to college and get a diploma in business.” She didn’t say this as a criticism. From her perspective, a college diploma was an amazing achievement. My mom had confidence that I would get there; she even squirreled a couple of thousand dollars away for my college fund despite not always being able to make ends meet. The point of sharing this context is to highlight that I couldn’t see myself as having privilege, in any part of Canadian society. I’m not the only racialized or Indigenous person who would have felt this way. But despite racism, systemic discrimination, and statistics that predicted I wouldn’t graduate high school, I found myself as a first-year law student in the fall of 2004. There I was, fighting imposter syndrome and trying to fit in at historic Osgoode Hall, listening to drums as we welcomed Justice Harry LaForme who was recently appointed to the Ontario Court of Appeal. He was the first Indigenous person to be appointed to any appellate court in Canada. I remember the event being an amazing celebration of Justice LaForme’s accomplishment. I cried as he shared some words about his upbringing on the Mississaugas of the Credit First Nation. I cried because this is the first time I met an Indigenous judge in real life. Someone that looked like me and had similar experiences was making important decisions that impacted Canadian law. I never thought that I would meet someone like that. I was thankful that an Indigenous person might have their case heard by a First Nations judge who would know exactly what it’s like to experience colonialism and racism at the hands of the Canadian government. It also gave me hope that more Indigenous people would be appointed to the bench. So why do you need to read about that one time I met Justice Harry LaForme? Because it was my real-life example that Canada did not care if Indigenous peoples were represented in the justice system. He was one person filling a very large gap. What about all the other spaces that didn’t have Indigenous representation? Canada did not recognize that it’s multi-juridical and Indigenous laws were not respected or affirmed. It was clear that Canada’s justice processes needed to ensure that decision makers were representative of the people they serve, and/or duly trained to serve a diverse population. Indigenous laws and peoples were subordinate to Canadian common and civil law, and that’s why I was so impacted by Justice LaForme’s accomplishment.
Tribunal Watch has proposed Foundational Principles of The Adjudicative Tribunal Justice System. The fourth principle is that tribunal “adjudicators must be optimally competent” in the areas of dispute resolution, the tribunal’s expertise, and decision writing. What does this principle look like in practice, specifically for administrative tribunals? To be “optimally competent,” from an Equity, Diversity, and Inclusion (EDI) and reconciliation perspective, tribunals and adjudicators must recognize Indigenous laws. Implementing Indigenous law is also important from a substantive and procedural law perspective. I think it’s important to include Indigenous laws as a part of the competence and expertise required of an adjudicator. As Val Napoleon says:
It is time for the conversations to move from the why of Indigenous law (whether Indigenous societies had law and why it matters) to the how of Indigenous law so that the work of law may be done by and within Indigenous communities, between Indigenous communities, and between Indigenous societies and the state (and settler society).
The ‘how’ of Indigenous laws will require building trustful relationships with Indigenous communities. Canadian and Indigenous legal experts should work together to rebuild Indigenous legal orders, because Indigenous laws are good for all Canadians. Not only that but Indigenous dispute resolution methods and principles of safety and accountability will benefit other equity seeking groups that experience systemic discrimination within the Canadian justice system.
With the way equity seeking groups and Indigenous peoples are currently under-represented as judicial and quasi judicial decision makers, Indigenous laws are very likely to be interpreted by non-Indigenous people. I see that there is a risk that Indigenous law will not be applied correctly. However, at this stage, trying our best to implement Indigenous legal orders, even though it feels foreign and you have little to no expertise or knowledge is better than completely neglecting our responsibilities. As a non-Indigenous adjudicator, even if it feels like you’re going to mess it up and do Indigenous law wrong, you must try! It is all our responsibilities to work together and make sure the ‘how’ of Indigenous law happens at all administrative tribunals. The work of reconciliation isn’t simply to right the wrongs against Indigenous peoples, Canada and all its citizens need reconciliation to thrive.
The risk of misinterpretation and immediate need for reconciliation is why my last two points are equally important. There should be a representative number of Indigenous adjudicators who will expertly apply Indigenous laws. Enhancing tribunals’ competence and expertise from an EDI perspective means increasing the number of adjudicators from all equity seeking groups with lived experience that will inform how they support access to justice. It will take time for the courts and tribunals to make sure they are representative of the population they serve, so it’s also imperative that all adjudicators are provided training in how to support access to justice for equity seeking groups.
Back to my experience as a naïve 22-year-old law student, crying in the middle of Old Osgoode Hall and admiring the work of Justice Laforme. Fast forward 17 years, I’m a ‘battle hardened’ advocate (half joking), Justice Harry Laforme is retired from the bench, and there are currently no new Indigenous jurists appointed to the Ontario Court of Appeal. In March of this year, an Indigenous Judge was appointed to BC’s Court of Appeal, so there is currently one Indigenous Judge at the appellate level in Canada, again! Almost 20 years later, we’re in the exact same place! The next logical step for Laforme would have been to seek appointment at Canada’s highest court. However, he and many other BIPOC candidates have cited the SCC bilingualism requirement as a systemic barrier. And so, there has never been a Black, racialized, or Indigenous person appointed to the Supreme Court of Canada (SCC). And now, for the first half of 2021, I’ve found myself advocating for an Indigenous person to be appointed to the SCC, because I can’t go another 20 years where racially diverse and Indigenous peoples are not represented in the Canadian justice system. This is also why I’m doing my best to work toward an accountable, anti-colonial and inclusive adjudicative tribunal justice system.
Tribunal Users’ Perspective
Blog Post by Marion Overholt
The critical question is whether a tribunal member is competent and capable of conducting a fair hearing. What are the components of competency, and how is it achieved and maintained?
Tribunal Watch Ontario Statement of Principles
The Statement of Principles correctly identifies substantive knowledge, dispute resolution, and decision writing skills as important prerequisites of competent adjudicators. An understanding of the social context of the dispute is also a critical component.
Substantive Knowledge
Does the tribunal member understand the legislation and have a background or understanding of the subject matter under consideration? The Social Assistance Review Board used to hold three-member panel hearings. New members could not chair a hearing and render a decision until they had participated in six months of hearings. This practice allowed the new member to integrate both substantive and procedural knowledge of the tribunal work before they could render a decision.
Procedural Fairness
Tribunal members must have a working knowledge of the principles of procedural fairness. To participate effectively in a hearing, the parties need to know and have access to the other side’s evidence. The hearing must be conducted in an orderly manner, allowing for parties to provide evidence, cross examine witnesses, and make submissions. When those steps are not followed or enforced, unfairness inevitably results. Everyone has a role: counsel and case-presenting officers do not give evidence, witnesses must be sworn or affirmed, and interpreters must interpret what is said and not offer an opinion of what they think happened or whether they think someone is telling the truth.
Recognizing Power Imbalances Between the Parties
The nature of tribunal hearings often lacks the trappings of courtroom decorum and process. However, the hearings can be equally intimidating because of the lack of formality. Parties may feel less restrained in their participation and demeanour, and tribunal members must be aware of power imbalances existing between the parties. Often, the hearing is but one episode in an ongoing relationship, whether it is between a caseworker and social assistance recipient, or a landlord and tenant. The weaker party fears retribution.
Cultural Competency
Does the tribunal member have the requisite knowledge of how cultural differences affect client experience? Does the member have the awareness of how assumptions and stereotypes affect their own judgement? Does the member have an awareness of and desire to address their own power and privilege in their work? These are the critical questions, developed by Rose Voyvodic in her work on cultural competency for lawyers, which are applicable to tribunal members.
The failure to recognize and develop this awareness and skill will create unfairness. Many of the issues that tribunals deal with are politically charged. It is incumbent on the tribunal member to maintain an awareness of public and political events to understand the context in which cases arise. For instance, Canada has experienced different waves of refugee and newcomer resettlement. The refugees’ experience is relevant to the family values and understanding of community in Canada. For example, aunts, whose siblings were deceased, would include a niece or nephew on the social assistance application, because they considered the child as their own in accordance with their cultural practices. The welfare office would not recognize that child as a member of the benefit unit because they had not been legally adopted and instead would allege that the applicant had mispresented their family status.
Institutional Culture
Does the tribunal member appreciate the institutional culture that is often active? Welfare services in Canada were developed on a charity and deservedness model. The innocent victim would be provided with some help but not enough to ensure that they did not become dependant on the public purse. Sexist and racist stereotyping was rampant and continues to influence policy and delivery of services. Generations of public servants were instructed to police social assistance recipients, while perpetual myths of “lazy welfare bums and cheats” poisoned the public’s perception and understanding of social assistance. Understanding this context, how the fallout from decades of societal prejudice still impacts clients to this day, is critical for a comprehensive and fair interpretation of social assistance legislation.
On-going Support and Training
Each tribunal has its own challenges, and practices were developed to ensure that adjudicators were supported by access to knowledgeable legal counsel, other experienced adjudicators, and vice chairs who offered guidance. Without this kind of support, it is difficult to develop and retain skilled adjudicators.
Decision Writing
Although tribunal decisions are not binding, they are persuasive, and many a well-written decision have been adopted by the reviewing court on appeal. The ability to define, articulate and decide a matter in dispute allows the tribunal to fulfill its role as an expert on the subject matter, helping the appellate court understand the nature and consequences of the dispute.
APPENDIX
Excerpt from https://tribunalwatch.files.wordpress.com/2021/05/statement-of-principles-and-commentary-may-2021.pdf
FOUNDATIONAL PRINCIPLES OF THE ADJUDICATIVE TRIBUNAL JUSTICE SYSTEM
4. Competence and Expertise
Adjudicators must be optimally competent and the tribunal equally competent in the exercise of its mandate. Adjudicators must have dispute resolution skills, subject matter expertise, and experience in decision writing.
Commentary
An important reason for having specialist adjudicative tribunals in place of generalist courts is that disputes in designated areas of law are resolved by adjudicators with competence and expertise in that area of law, together with expert knowledge of the context and legal landscape.
Candidates for appointment to the tribunal must be able to demonstrate either relevant subject-matter expertise or dispute-resolution expertise, and, ideally, both. Tribunals are obliged to commit to ongoing training and professional development, and their budgets must reflect this.
While it is expected that adjudicators will have a commitment to public service, it must be recognized that adjudication is a profession. To attract the most competent adjudicators, compensation must be competitive, training must be comprehensive, and reappointment decisions must be predictable and merit-based. To build an enduring community of professional adjudicators, the tribunals and the tribunal justice system must have the resources, reputation and inclusiveness to be an attractive part-time or full-time option for professionals at all stages of their careers.
Law, Disability & Social Change 