Law, Disability & Social Change

The Principles for Adjudicative Tribunals & Administrative Justice Webinar Series:

Tribunal Independence and Impartiality

We have 4 speakers, each commenting on the topic of tribunal independence and impartiality 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
• Tribunal users’ perspective – Marion Overholt, Executive Director, Community Legal Aid
• Tribunal perspective – Gary Yee, former tribunal chair
• Tribunal Independence, impartiality and inclusion – Professor Laverne Jacobs, Associate Dean (Research & Graduate Studies), Windsor Law

Link to Speaker Bios

Doctrinal Law Perspective

Blog Post by Professor Paul Daly:

I know it is trite and I know readers have heard it many times before. But it is worth repeating: administrative tribunals play an extraordinarily important role in Canadian society. Day after day, by the dozens, hundreds and thousands, they sit in judgment on the rights and liabilities of Canadians. Landlord and tenant disputes. Workers’ compensation. Social security. Land use. Abuse of market power. 

You name it, there’s a tribunal for it, applying objective standards to facts found after an adversarial process. Many of these tribunals are court substitutes. But they do not have anything like the status of courts. Whereas judicial independence is anchored in the Constitution and jealously safeguarded by the courts, the legal protections for tribunal independence are minimal — and the prospects for judicial reform are not much greater.

Begin with the common law. In the areas of substantive review and procedural fairness, administrative law imposes demanding standards: decisions must be substantively justified and taken after a fair process — where a process is not up to scratch, the courts stand ready to supply the omission of the legislature and graft on additional procedural protections. 

When it comes to independence, by contrast, the common law is subordinate to statute. The hallmarks of institutional independence – security of tenure, financial security and administrative autonomy – were initially set out by the Supreme Court of Canada in cases involving judges. Later, the Court accepted that these hallmarks also constitute the independence norm for administrative tribunals: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919.

But in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, McLachlin CJ stated that the application of the norm of independence was itself dependent on choices made by the legislature:

It is the legislature or Parliament that determines the degree of independence required of tribunal members.  The statute must be construed as a whole to determine the degree of independence the legislature intended… Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive (at paras. 20-22).

Nothing has been omitted – and nothing can be omitted – so there is nothing for the common law to add.

The decision of the Saskatchewan Court of Appeal in Saskatchewan Federation of Labour v Government of Saskatchewan, 2013 SKCA 61 illustrates the point. The basic issue here is that a provision in the provincial Interpretation Act provides for the replacement by an incoming government of the members of various administrative bodies. Here, members of the Labour Relations Board were put out to pasture and new members were ushered in. In the first case, the Order-in-Council accomplishing this was challenged, but the Saskatchewan Court of Appeal held that the statutory authority to fire administrative decision-makers appointed by a previous government was clear: 2010 SKCA 27.

In this case, the enabling provision in the Interpretation Act was itself challenged as unconstitutional, on the basis that it violated the unwritten constitutional principle of adjudicative independence. In light of Ocean Port Hotel, the Court of Appeal gave this argument short shrift:

Given what I regard as the clear import of these passages, I am of the view the argument of the Federation of Labour and the two unions is not only problematic but must fail. In other words, I am of the opinion that, in light of reasons for judgment in Ocean Port, the unwritten constitutional principle of judicial independence grounded in the preamble to the Constitution Act, 1867 cannot be seen to extend to the Saskatchewan Labour Relations Board, including the chairperson and vice-chairpersons of the Board. 

Even in an adjudicative tribunal which can plausibly be described as a court substitute, the norm of independence is anything but robust. The Supreme Court denied leave to appeal.

What about the Charter of Rights and Freedoms? Section 7 of the Charter guarantees life, liberty and security of the person, which can only be interfered with in accordance with the principles of fundamental justice. One of these principles is independence.

The most recent appellate treatment of s. 7 and administrative independence was Walter v British Columbia, 2019 BCCA 221. Controversy arose about the remuneration of the Chairperson of the British Columbia Review Board. The Review Board has an important characteristic which distinguishes it from the liquor licence, human rights and labour relations adjudicators whose independence claims have foundered in the past. The Review Board deals with matters of personal liberty. It determines how long and under what conditions accused persons found Not Criminally Responsible spend in state detention. Section 7 of the Charter of Rights and Freedoms is squarely engaged by the Review Board’s work.

But, Willcock JA held, whereas the constitutional principle of judicial independence is designed to safeguard superior court judges who exercise judicial functions of the highest important, tribunal independence has a different source: “principles of fundamental justice which call for the independence of a decision-maker as an essential part of procedural fairness” (at para. 69). There is thus “a distinction between the highest level of administrative independence, which may be constitutionally required for certain tribunals, and judicial independence”, based on the fact that “the judiciary, unlike administrative tribunals, has a constitutional obligation to maintain at all times a distance from the executive” (at para. 70). Accordingly, tribunal independence is “context specific”: “the courts must adopt a flexible approach to the question of what constitutes procedural fairness in the administrative context” (at paras. 109-110). The Supreme Court again denied leave.

As such, although we have passed through the “grand entrance hall” and pierced the heart of “the castle of the Constitution”, the tribunal independence gruel is remarkably thin (Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 SCR 3, at para. 109). The jurisprudence, then, is not particularly favourable to tribunal independence.

But jurisprudence is only ever part of the story of the common law. The aspirations in Tribunal Watch Ontario’s Statement of Principles do not need to be given concrete form by the Supreme Court of Canada (though this would be ideal, if ever the opportunity arises, dim as the prospects are). Rather, Parliament and provincial legislatures can enact quasi-constitutional statutes setting out robust conditions of security of tenure, financial security and administrative autonomy. If protection is not going to come from the courts, it may yet come from political actors. The moral and rhetorical force of the Statement of Principles has the potential to shift the political ground and, ultimately, to place tribunal independence on the firmer footing it deserves.

Tribunal Users’ Perspective

Blog Post by Marion Overholt:

TRIBUNAL INDEPENDENCE AND IMPARTIALITY

The independence and impartiality of the tribunal system is one of those foundational concepts that can be easily taken for granted because we assume it is universally understood and accepted. In times of disruption and upheaval, it is instructive to remember its value to protect its future. From a user perspective the independence and impartiality of the tribunal is critical.

THE IMPORTANCE OF TRIBUNAL INDEPENDENCE

The rule of law depends on an independent adjudicative process. If the confidence in the justice system is undermined, the respect for the rule of law is undermined. The work of tribunals, particularly the Landlord Tenant Board (LTB) and the Social Benefits Tribunal (SBT), directly impacts the ability of our low-income residents to participate and engage in the social fabric of our communities. Thus, the viability of these adjudicative tribunals is critical to our collective well being and social cohesion.

First, we expect tribunals to be independent of government and free from bias. The opportunity to be heard and to state one’s case is a fundamental expectation. If there is a perception of bias against the applicant, the system is devalued and disrespected and remedies will be sought out in other forums. Freedom from direct government interference in the adjudication process has been recognized as a basic requirement of an independent tribunal system in the development of common law and in statute. However, governments by design or by default can adversely impair the independence of the tribunals in more covert ways.

THREATS TO TRIBUNAL INDEPENDENCE

For adjudicative tribunals, the government is often a party in the proceedings. Low-income participants find the adjudicative process to be intimidating and alienating. When necessities like shelter and income are in dispute, the outcome of a hearing before the LTB or SBT can either restore or remove family stability and security. Inadequate staffing, restrictive funding, and an unreliable appointments process weaken the independence of a tribunal. The credibility of the tribunal is also compromised when reappointments are denied to tribunal members who have had satisfactory performance reviews. When hearings are delayed and backlogs are created, pressure mounts on the tribunal to achieve more resolutions. For clients in the appeal process a delay means more hardship, especially for low-income applicants whose income and housing are at risk. The axiom justice delayed is justice is denied is particularly applicable in these cases, where delay means a wrongful eviction goes unremedied and homelessness results.

Similarly, the establishment of uniform procedural rules across a broad array of tribunals can also disadvantage participants. Tribunals were created to provide specialized appeal forums. Tribunals which address housing and income maintenance programs must recognize the context in which the appeals arise. Low income and marginalized communities often experience discrimination when trying to access government programs. Complex and confusing eligibility rules impede the receipt of basic-needs assistance when the need is most acute. The applicant’s distrust of the system places a special onus on the appeal process to be fair, accessible, and useful. The separation between the system that rejected their application or imposed a sanction and the system that is reviewing that decision must be clear.

Hearings are based on the law and evidence. For social assistance matters, the hearing is really the first time that the law is applied to the facts. Ontarioworks administrators rely on directives that are created by the ministry and prefer those interpretations of the law instead of the decisions of the Social Benefits Tribunal. As a result, the same legal issue is ligated by multiple applicants as the only route to obtain entitlement to benefits. Therefore, access to the appeal system is critical.

MODERNIZATION AND DIGITAL FIRST INITATIVES

The rush to digitalize the entire process from application to appeal has undermined the integrity of the system. Online access is being touted as the modern-day method to access both benefits and the appeal process. However, it assumes that applicants have both the technology and know-how to access these systems, despite data to the contrary.

Frustrated tenants have already felt the effects of these new difficulties through their participation in the hearing process. While affected tenants are stuck calling in to their hearings by phone, their landlords are attending by video conference and are enjoying the benefits of increased attention and engagement from the tribunal. Access to technology and remote hearing sites are the basic minimum requirements to ensure the proper functioning of the tribunal process. Clients whose first language is not English have participated in telephone hearings where only their testimony is translated, leaving them unaware and uninformed about their own proceedings. It is hard to imagine that they have any confidence in the appeal system when their role is so marginalized.

RESPONSIBILITY FOR TRIBUNAL INDEPENDENCE

Tribunals cannot defend themselves when criticized, and so require champions both inside and outside of government. The role of the Social Benefits Tribunal has not been well understood by the Ontario Auditor General. In 2019, Bonnie Lysyk’s criticisms of the SBT’s high rate of successful disability appeals could have been contextualized by the government. An explanation could have been offered explaining that the opportunity for an in-person review of the applicant’s situation often resulted in a more fulsome understanding of how the person’s medical impairments resulted in a substantial disability. Instead, the government responded as follows:

“The Ministry of Children, Community and Social Services (Ministry) agrees with the recommendation. While acknowledging the independence of the Social Benefits Tribunal (SBT), and the existing mechanisms that hold decisions made by the SBT accountable, the Ministry will undertake an assessment of the impact that SBT decisions have on Ministry decisions, review appeal frameworks within other jurisdictions, and propose enhancements to the appeal framework in Ontario based on this assessment by March 2021.”

As advocates, we have professional responsibilities which require us to advance the administration of justice. We are required to recognize and respond to circumstances which undermine the independence of the tribunal system. Forums like these allow us to discuss our concerns and determine the way forward. We know that unresolved legal problems create more problems in health, housing, and intimate and community relationships. This is a critical juncture. As the legal system pivots to engage in the digital process, we must ensure that we all go forward together and that no one is left behind. Tribunals were developed to meet the specific needs of parties with complex legal and social issues that require specialized adjudicative knowledge, and most importantly to provide timely and appropriate resolutions of these issues. The failure to address the threats to tribunal independence will undermine public confidence and respect for the justice system. Aggrieved parties will be forced to seek justice elsewhere.

Tribunal Perspective

Blog Post by Gary Yee:

It is no coincidence that “Independence and Impartiality” is the first of the foundational principles of the administrative justice tribunal justice system. As stated in this Tribunal Watch Ontario document, “The adjudicator and the tribunal must be, and must be seen to be, independent and impartial.” Indeed, that is one of the two core principles of natural justice or procedural fairness – the right to be heard before an impartial decision maker.

The importance of something can be revealed by looking at what happens in its absence. This article sets out a tribunal chair’s viewpoint of the practical consequences of the lack of independence. After a general outline of external consequences, the focus will be on what the lack of adjudicative independence means to the internal workings of a tribunal.

1. External consequences of lack of adjudicative independence

The most obvious external consequence is something that is often unspoken – that the outcome of the case could be changed because of a lack of adjudicative independence. It might be unspoken because it is something too scandalous to deal with, or because it is too hard to prove. In the end, our concerns exist even if the final outcome of the case has not been affected. As we know from the legal test for reasonable apprehension of bias, it is the appearance of bias that is just as important as any actual bias.

Apart from the outcome of a case, if a party believes that the tribunal or its adjudicator lacks independence, this may affect if or how that party participates in the process. It may also mean that the party is less likely to accept the tribunal’s order or comply with it. In addition, the tribunal may face public criticism from a specific party or from one side of the stakeholder community. With less trust, the tribunal will find it harder to work with counsel or stakeholders, and to obtain their input and cooperation to make improvements and changes.

On a broader basis, if the public does not trust or respect the adjudicative tribunal justice system, that can contribute to weakening the rule of law, and to disengagement from the democratic process. The public would believe that there is undue influence from the governing party or some other person or group with power.

Furthermore, within the justice system, a perceived lack of adjudicative independence will lead to more appeals or judicial reviews, and less deference by the courts.

• Internal consequences of lack of adjudicative independence

1. Quality of tribunal members

If a tribunal faces any political pressure, or if its appointments or reappointments are politicized, that tribunal will have more trouble attracting and retaining its members. This will result in many appointees who fall into one or more of the following categories: lower qualifications, seeking higher pay, at or near retirement, connected to the governing party, or wealthy enough to risk not being reappointed.

There is a lot of overlap between this Principle #1 (Independence and Impartiality) and Principle #3 (Appointments and Reappointments). Similar problems of attracting or retaining members will apply if there is a lack of security of tenure for members, which could arise from inadequate notice of non-reappointment, or lack of support or opportunities for post-appointment job transition.

• Assignment of cases

In a tribunal facing political pressure or politicization of appointments and reappointments, the chair may be able to take certain steps to mitigate this difficult situation (short of resigning in protest):

• Do not assign controversial or politically sensitive cases to a member who really needs or wants to be reappointed, and their term is up in the next year or so;
• Use mostly part-time members who do not depend on their tribunal per diems as their main source of income; or
• Avoid appointing full-time members who are in the middle of their career.

• Morale, collegiality, consistency

If adjudicative independence is lacking, the morale of members and staff would surely suffer. It is much harder to build collegiality, foster consistency, or build a culture of tribunal excellence if members (and staff, too) do not trust each other. That lack of trust will arise if some members are seen as having political connections that they will take advantage of, or if some other members are afraid to express their opinions because they have no such connections.

These pervasive impacts would destroy the essential notion of a tribunal as being more than a collection of individual decision makers who are conducting hearings and making decisions in their individual silos. Tribunals need collegial members who will support their tribunal’s institutional goals of adjudicative excellence, productivity, timeliness, accessibility, and accountability.

• Ability to manage the tribunal and its operations

Adjudicative independence can be affected sometimes by things that are not directly related to the adjudicators or the hearing process. In some situations, when the Chair or the tribunal does not have enough control of the resources or the staff, that may be seen to affect how the tribunal decides its cases. If the government can arbitrarily exercise its power over the budget or have direct supervisory powers over tribunal counsel or senior staff, that can easily lead to actual or perceived influence in areas such as scheduling, case management, adjudication strategies, etc., and even how cases are decided.

• Role of tribunal chair

Giving greater powers to the tribunal chair instead of the government would ensure more adjudicative independence. However, giving unchecked power to the chair has its own risks if the chair is, or is seen to be, lacking in integrity or subject to undue influence from the government or others. While this thankfully seems to be rare (at least in its most direct or obvious manifestations), it is even rarer to see public information about such situations. Understandably, members and staff may be afraid to complain about their chair acting without integrity or not doing enough to protect adjudicative independence. As with all organizations with one leader who has tremendous power, there needs to be more transparency and accountability, along with processes for reviews or complaints.

Gary Yee is a former chair of four tribunals.

Inclusion Perspective

Blog Post by Professor Laverne Jacobs:

Avoiding an Impoverished Rule of Law: What Does it Mean to Guarantee Independence, Impartiality and Inclusion in the Administrative State?

In this piece, I seek to raise three questions about the ways in which inclusion can and should fit with the guarantees of independence and impartiality within the administrative law sphere. When we speak of independence and impartiality, the law is clear: guarantees of structural and adjudicative independence are to lead to guarantees of impartial decision-making by individual tribunal members and by the tribunal itself.

As a scholar in the field of administrative law, studying independence, impartiality for two decades, and  a scholar of equality and access to justice, I can say that when it comes to ensuring diversity and inclusion in our administrative tribunal decision-making, there is still much for us to learn and much room for development.

Why are inclusion, diversity and equity important to administrative decision-making? R v RDS has shown us the value of social context. R v RDS was a Supreme Court of Canada decision from a criminal law context but one that has had significant impact on adjudicative decision-making across the field of public law. Professor Jennifer Nedelsky, in her classic work on the issue has illustrated how a stronger version of impartiality comes from an enlargement of the mind where decision-makers picture themselves in conversation with others who come from different backgrounds and life experiences.  In her words:

What makes it possible for us to genuinely judge, to move beyond our private idiosyncrasies and preferences, is our capacity to achieve an “enlargement of mind”. We do this by taking different perspectives into account. This is the path out of the blindness of our subjective private conditions. The more views we are able to take into account, the less likely we are to be locked into one perspective, whether through fear, anger or ignorance. It is the capacity for “enlargement of mind” that makes autonomous, impartial judgment possible. …[I]mpartiality is not some stance above the fray, but the characteristic of judgments made by taking into account the perspectives of others in the judging community… To understand judicial impartiality we must ask who judges are, and with whom they imagine themselves to be in conversation as they make their judgments. Whom do they imagine persuading and on whom do they make claims of agreement?

Of course, for a true move to impartiality, having decision-makers place themselves in actual conversation with the rest of their panel, where the entire panel is from different backgrounds would be even more effective. More recent scholarship has shown us how lived experience may help adjudicators to bring a better understanding to credibility assessments.

Impartiality and Inclusion

What are some of the challenges that we encounter in incorporating diversity and inclusion into administrative decision-making spheres? Here, I want to trouble the very notions of independence and impartiality by considering what can occur when the value of inclusion meets the traditional structures of independence and impartiality. There are at least three places where issues arise on the ground when it comes to adjudicative tribunals in the administrative state.

1. In the process of adjudication

Of all the types of independence, adjudicative independence is a value that is particularly delicate in the administrative law context. Can diversity enter assessments of evidence, evaluations of the law, interactions with parties and the writing of decisions? Permissible circumstances for incorporating diversity involve instances where the adjudicator is not primarily relying on their personal knowledge of the circumstances to make their decision, but rather instances where assessments are made on fact, law and conscience and where an adjudicator’s understandings of context may be helpful to deepen an understanding of the facts and law. Nevertheless, establishing when permissible circumstances have arisen really depends on a case-by-case analysis. One of the most significant challenges is determining factors that enable a decision-maker and those on review to distinguish biased situations from those that are not. A more grounded approach to impartiality, with guideposts to help us consider when dialogue is deepened versus when reasonable apprehension of bias exists could be particularly helpful.  Studies on this have begun to emerge, and additional ones are welcome.

2. Non-adjudicative institutional development

An adjudicative tribunal is not just decision-makers deciding matters of law; every tribunal has an institutional aspect to its existence, where members come together to share ideas, think about the tribunals overall direction, improving its efficiencies (such as how to reduce delays in hearings and backlogs), and to consider new and emerging directions in the statute that it administers. Ensuring diversity and inclusion is not just a matter of recognizing inclusion in the adjudicative space, it is also necessary to foster an inclusive, collegial culture within the tribunal itself. Tribunals can and should use their institutional independence to foster inclusion by making institutional decisions through an inclusive lens (i.e. assuring that they are, at the very least antiracist, anti-ableist and anti-colonialist). Diversity and inclusion should be found not just in the decision-makers but also among frontline and other staff.

3. Appointments

In making appointments, governments, in collaboration with tribunal chairs, should be mindful of the need for diversity and work to develop respectful ways to recruit individuals from diverse populations. And, while it may be important to bring in people with diverse backgrounds to contribute to this exercise, it is also important to be mindful not to place the work of diversifying entirely on those from diverse communities. This should be a collaborative exercise. Moreover, as we increase diversity, those from minority communities may also be new members working on other aspects of learning and mastering the job.

Conclusion

Maintaining a robust rule of law – one that maintains public confidence – means having decision-makers that reflect the public served by the administrative justice community. If we are serious about ensuring inclusion in the administrative justice system, then we need to find ways to bring in and support tribunal members and staff from diverse backgrounds,  and to figure out the challenges related to understanding what impartiality means when faced with diverse experiences and understandings within cases.

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

1.     Independence and Impartiality

The adjudicator and the tribunal must be, and must be seen to be, independent and impartial.

Commentary

Independence is a foundational requirement of a just adjudication system because without independence, tribunals, chairs, and members cannot be seen to be impartial. It is the impartiality of tribunals and their adjudicators that is the primary requirement for a just system.

A person who appears before an adjudicative tribunal must have confidence that the adjudicator will decide the case based on the law and evidence, and that the outcome will not be affected by overt or covert interference or influence. Public acceptance of the value and integrity of the legal system also requires public confidence in the institutional independence of the tribunals themselves. 

As the Supreme Court has explained:

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. (Valente v. The Queen, [1985] 2 SCR 673)

Adjudicative tribunals must have the ability to operate at arm’s length from government, because government interests are typically directly or indirectly at issue in the matters that come before them and the government is often a party in the proceedings. The tribunal must have responsible independent leadership, with overall control of its functions and day-to-day operations, including adequate funding, to meet its administrative needs and to provide competitive remuneration for adjudicators and staff.

Tribunal members should order their personal affairs and conduct themselves at hearings in a manner that dispels any reasonable apprehension of bias by reason of self-interest, relationships, or political affiliation.

Tribunal Chairs should in their interactions with tribunal members respect the principles of decision-making autonomy and, in particular, not create an environment in which tribunal members could be seen to be subject to the will or perceived will of the Chair when performing their adjudicative functions.