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V.

Conclusions

231

are viewed as extensions of the government of the day; is it enhanced where a tribunal is
representativethat is, the demographic makeup of members and staff reflects the community or user groups of the tribunal?
The line between public administration and administrative law is clearly blurring. It is no
longer possible (or desirable) to exclude significant government discretion over how administrative bodies are designed, funded, and governed from the purview of administrative law
principles. Where these dynamics can be tied to the fairness of a decision-making process
or the reasonableness of a decision, they cease to be matters of policy preference alone.

V. Conclusions
Administrative tribunals are established for a variety of purposes, but most include the following rationale:
to resolve disputes or reach decisions on the basis of specialized expertise;
to resolve disputes or reach decisions in a more informal and expeditious fashion than
is possible in the courts, thereby reducing costs to the parties; and
to resolve disputes in a fashion at arms length from the government while advancing
the policy mandates set out in the applicable legislation.
Accessibility is consistent with all of these purposes. Accessibility may challenge another
key consideration, however, and that is the scarce resources of government. Accessibility,
whether in the form of more and better facilities, information for parties, or representation
services, requires resources and, given the high volume of some tribunals, the resource
implications may be quite substantial.
In addition to resources, access may also depend on how a tribunal accommodates unequal power and resources between parties. Consider a social benefits tribunal, where often
unrepresented welfare recipients face ministry representatives. How can a decision-maker
remain impartial, on the one hand, while ensuring a sufficiently level playing field on the
other? This is a challenge familiar to courts as well, particularly in areas such as family law,
where power imbalances and self-represented litigants are common. An aspect of this balancing exercise unique to administrative tribunals is the added feature that many tribunals
are established precisely to empower vulnerable individuals. In the case of social benefits
tribunals, for example, the whole purpose of these tribunals would be undermined if those
whose benefits are wrongfully taken away cannot, in practice, access the tribunal.
Access also involves the balance between fairness and efficiency. It might be optimal for
a high-volume tribunal such as a landlord and tenant tribunal to have facilities in every
major population centre. It will be more efficient, of course, to maintain fewer facilities but
invest in new technologies such as videoconferencing, which allow for far greater numbers
to have access to dispute resolution. At what point does the pursuit of efficiency erode the
fairness of the proceeding? This is precisely the question that administrative law will increasingly have to address.
As important as access is to the parties in administrative justice, it is largely uncharted
territory for administrative law. The duty of fairness, for example, typically has not included
a concern for the simplicity of forms, the transparency of guidelines, or the adequacy of a
tribunals database of prior decisions. The logic of fairness, however, is that it must be

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Chapter 7 Access to Administrative Justice and Other Worries

viewed from the standpoint of those affected by decision making and, from this perspective,
accessibility and fairness are inextricably linked.
Finally, the analysis thus far has assumed access relates to process. Access to justice, however, not only includes being able to understand, navigate, and participate in a tribunals
decision making, but also presupposes that the tribunal will deliver administrative justice of
high quality. In this sense, access to administrative justice extends not only to standing,
guidelines, fees, and representation, but also to whether decisions are well reasoned and
delivered in a timely fashion. Access in this sense may also extend to whether decisionmakers are appointed under a competitive merit-based process and whether decision-makers
are able to access appropriate training and education (because substantive expertise in subject areas of a tribunal may not include expertise in the conduct of a hearing or vice versa).
The purpose of this chapter has been to introduce issues of access to administrative justice and to show how integrated such questions are with the broader principles of administrative law, on the one hand, and the everyday practice of diverse tribunals, on the other
hand. Ultimately, this analysis leads to a challenge for administrative law, to do justice to
questions of access both as part of traditional fairness determinations and as an emerging,
independent aspect of the legal framework within which tribunals are established and operate. The many implications of this new focus on access to administrative justice remain to
be elaborated.
SUGGESTED ADDITIONAL READINGS
BOOKS

Bass, J., W.A. Bogart, & F.H. Zemans, eds., Access to Justic for a New Century: The Way Forward (Toronto: Irwin, 2005).
Trebilcock, M., A. Duggan, & L. Sossin, Middle Income Access to Justice (Toronto: University
of Toronto Press, 2012).
CASES

BC Vegetable Greenhouse I, L.P. v. BC Vegetable Marketing Commission, Farm Industry


Review Board (2005 May 20), online: <http://www.firb.gov.bc.ca/appeals/vegetable/bc_
veg_03-23_costs_dec_may20_05.pdf>.
Filgueira v. Garfield Container Transport Inc., 2005 CHRT 44, File No. T952/7204.
Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607.

CHAPTER EIGHT

Caught Between Judicial Paradigms


and the Administrative States
Pastiche: Tribunal Independence,
Impartiality, and Bias
LAVERNE JACOBS*
Faculty of Law, University of Windsor
I.
II.
III.
IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sources of the Guarantee of an Independent and Impartial Tribunal . . . . . . . .
What Is Tribunal Independence and Why Is It Important? . . . . . . . . . . . . . .
The Development of the Law of Tribunal Independence in Canada . . . . . . . . .
A. Laying the Groundwork: The Theory of Judicial Independence . . . . . . . . .
B. From Judicial Independence to Tribunal Independence . . . . . . . . . . . . . . .
1. Ocean Port Hotel and Keen: Parliamentary Supremacy Versus
Warding Off Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Reasserting the Push for Independence: Unwritten Constitutional
Principles, Tribunal Independence, and the Rule of Law . . . . . . . . . . . . . . .
D. The Appointment and Removal Process: Institutions, Ideologies, and
Institutional Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V. Reasonable Apprehension of Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Rule Against Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Reasonable Apprehension of Bias Test . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Perceptions of Individual Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Perceptions of Institutional Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Suggested Additional Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

234
234
237
239
240
242
245
252
254
255
255
256
258
268
276
276

* I am grateful to the co-contributors and editors of this volume for their feedback on this chapter. Thanks also
to Maria Mavrikkou (J.D. 2012) for her editorial assistance and the Law Foundation of Ontario for its support.

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Chapter 8 Tribunal Independence, Impartiality, and Bias

I. Introduction
This chapter addresses the controversial issues of tribunal1 independence, impartiality, and
bias. It is useful at the outset to define the relationship between these three concepts, although this relationship is discussed in greater detail below. Put simply, independence, impartiality, and bias all centre on the notion of fairness in the administrative decision-making
process. A key characteristic of a fair proceeding before an administrative body is that the
decision-maker and the decision-making process not grant undue preferential treatment or
be driven by preconceived notions. This characteristic is vital not only to the litigants before
the tribunal, but also to the publics confidence in the administration of justice. Most certainly, the general public would lose faith in public decision-makers if it perceived that their
decisions were based on irrelevant considerations such as relationships with the litigants
before them, prejudice, or undue pressure from government. As a result, our legal tradition
has gone to great lengths to protect this fundamental tenet of fairness. Consequently, regardless of what the reality may be in any given administrative decision-making process, the
mere perception of partiality toward a particular outcome, or bias, provided that the perception is reasonable, is enough to have a decision overturned.
If bias is the evil that we are trying to avoid, impartiality refers to the ideal state of the
decision-maker or decision-making institution. An impartial decision-maker is one who is
able to make judgments with an open mindthat is, one who comes to the decision-making
table without his or her mind already made up or without connections that improperly
influence the decision-making process. Finally, independence is said to be a means of achieving impartiality. For example, by ensuring through legislation that an administrative tribunal is not too dependent on government for the necessities of its day-to-day functioning,
it is theoretically less likely that government officials can pull decision-making strings.
Canadian administrative law jurisprudence shows a continual ebb and flow that oscillates
between allowing deference to the nature of administrative bodies and legislative choices,
on the one hand, and asserting judicial paradigms as ideal forms for resolving issues of administrative independence, impartiality, and bias, on the other hand. This chapter argues
that, when it comes to the administrative state, the process of developing appropriate juristic
tools such as guarantees of independence and the rule against bias requires a perspective
that is always situated between a court-derived model and the wide variety of administrative
actors that exist.

II. Sources of the Guarantee of an Independent


andImpartial Tribunal
The guarantee of a proceeding before an independent and impartial tribunal stems from
common law, and from constitutional or quasi-constitutional principles. This chapter thus
develops on the concepts of procedural fairness discussed by Grant Huscroft in Chapter 5,
1 The term tribunal is a contested one by some decision-making bodies within the administrative justice
system, but it is used here generically to encompass all statutory decision-making bodies (variously termed,
for example, agencies, boards, or commissions), not simply those that are adjudicative in a court-like sense
or those that render binding decisions.

II. Sources of the Guarantee of an Independent and Impartial Tribunal

235

From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review, and
is a prelude to Fox-Evan Decent and Alexander Plesss Chapter 12, The Charter and Administrative Law: Cross-Fertilization or Inconstancy? At common law, the principles of natural
justice are encapsulated in two central ideas. The first idea is that a decision-maker should
neither judge his or her own cause nor have any interest in the outcome of a case before him
or her. This idea is generally known as the rule against bias and is often summarized in a
Latin maxim: nemo judex in sua causa debet esse (no one is fit to be the judge in his or her
own counsel). The second idea requires the decision-maker to hear and listen to both sides
of the case before making a decision. This requirement has been summarized by the maxim
audi alteram partem (hear the other side). Both the nemo judex and the audi alteram partem
principles inform the right to an independent and impartial proceeding. The nemo judex
rule aims to avoid circumstances in which the decision-maker acts as both prosecutor and
judge in the same matter or decides for personal gain or benefit. Similarly, by requiring the
decision-maker to listen to all sides of a dispute, the audi alteram partem rule seeks, in part,
to encourage the decision-maker to focus his or her decision on the facts of the dispute and
the relevant law and not on extraneous, or irrelevant, considerations.2
In addition to these common-law principles, some have argued, with limited success,
that the promise of an independent and impartial administrative tribunal is also guaranteed
by unwritten constitutional principles and the rule of law.3 What is more certain is that a
determination by an independent and impartial tribunal is guaranteed in some cases
through the Canadian Charter of Rights and Freedoms.4 The table on page 236 indicates the
wording of the guarantees provided by these various enactments.
The most striking features of this comparative table are the differences in wording, the
seeming variation in the rights protected, and the collection of standards employed to protect them in the various enactments. For example, although the Canadian Bill of Rights and
the Alberta Bill of Rights make due process of law the decisive factor for determining
whether one has been legally or illegally deprived of his or her rights, s.7 of the Canadian
Charter speaks of principles of fundamental justice. To what extent are the two expressions coterminous? Is one concept broader than the other? And how do concepts such as
due process of law, and fundamental justice relate, if at all, to the common-law principle
of natural justice? These are all questions with which the courts, lawyers, academics, and
students have grappled.5
2 I discuss the interplay of these ideas in Laverne A. Jacobs, Tribunal Independence and Impartiality: Rethinking the Theory After Bell and Ocean Port HotelA Call for Empirical Analysis in Laverne A. Jacobs
& Anne L. Mactavish., eds., Dialogue Between Courts and Tribunals: Essays in Administrative Law and Justice
(2001-2007) (Montreal: Les ditions Thmis, 2008) [Jacobs & Mactavish].
3 Ocean Port Hotel v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52,
[2001] 2 S.C.R. 781 [Ocean Port Hotel] and McKenzie v. Minister of Public Safety and Solicitor General et al.,
2006 BCSC 1372, 61 B.C.L.R. (4th) 57; (2007), 71 B.C.L.R. (4th) 1 (C.A.); [2007] S.C.C.A. No. 601 (QL), appeal to the Supreme Court of Canada dismissed without reasons after the B.C. Court of Appeal determined
the issue to be moot because of legislative amendment [McKenzie]. Both cases are discussed below.
4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
5 See e.g. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 [Singh], an immigration case
in which the Supreme Court of Canada held that, at a minimum, fundamental justice included the notion
of procedural fairness.

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Chapter 8 Tribunal Independence, Impartiality, and Bias

Statute

Section(s)

Guarantee provided

Canadian Charter of Rights


andFreedoms

s. 7

Everyone has the right to life, liberty and security


of the person and the right not to be deprived
thereof except in accordance with the principles of
fundamental justice

Canadian Charter of Rights


andFreedoms

s. 11(d)

Any person charged with an offence has the


right to be presumed innocent until proven
guilty according to law in a fair and public hearing
by an independent and impartial tribunal

Quebec Charter of Human Rights


andFreedoms6

s. 23

Every person has a right to a full and equal, public


and fair hearing by an independent and impartial
tribunal, for the determination of his rights and
obligations or of the merits of any charge brought
against him.

Canadian Bill of Rights 7

ss. 1(a),
2(e)

1(a) the right of the individual to life, liberty,


security of the person and enjoyment of property,
and the right not to be deprived thereof except by
due process of law;
2(e) [N]o law of Canada shall be construed or
applied so as to deprive a person of the right to
a fair hearing in accordance with the principles of
fundamental justice for the determination of his
rights and obligations

Alberta Bill of Rights 8

s. 1(a)

the right of the individual to liberty, security of the


person and enjoyment of property, and the right
not to be deprived thereof except by due process of
law

Moreover, it is clear from the table that many situations trigger the right to what we might
call globally an independent and impartial proceeding. What is not always clear is how
smoothly these situations translate to the various instances of socioeconomic regulation that
are addressed by administrative actors in the administrative state. For example, s.11(d) of the
Canadian Charter has been held to require penal consequences before it can be applied outside the context of courts.9 And while s.23 of the Quebec Charter seems all-encompassing
6 R.S.Q., c. C-12 [Quebec Charter].
7 S.C. 1960, c. 44, C-12.3.
8 R.S.A. 2000, c. A-14.
9 See Alex Couture Inc. et al. v. Canada (Attorney General) (1991), 83 D.L.R. (4th) 577 (Que. C.A.); leave to appeal
denied [1992] 2 S.C.R. v, at 91 D.L.R. (4th) vii; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992]
2 S.C.R. 394. Section 7 of the Charter seems to offer more fertile ground and has been used with some success

III. What Is Tribunal Independence and Why Is It Important?

237

insofar as it allows for a fair hearing by an independent and impartial tribunal for the mere
determination of the individuals rights and obligations, this seemingly low threshold is elevated by a legislated definition of tribunal. The Quebec Charter defines tribunals as
being adjudicative bodies only.10 The acceptable degree of independence and the way in
which impartiality is understood may be quite different for hearings before a body in Quebec
that is established to set prices and develop policy in the natural resources sector than for
hearings before a human rights tribunal.
Generally, these variations, whether they stem from legislative enactments, the common
law, or from judicial interpretations of both, indicate a context-driven and, at times, uneven
promise of independence and impartiality. To predict the degree of independence that any
administrative body should exhibit and the ways in which impartiality and bias should be
understood within the context of that bodys functioning, it is important to have a thorough
understanding of not only the law but also the nature, purpose, and practical ways that the
administrative body in question operates.

III. What Is Tribunal Independence and


Why Is It Important?
Challenging administrative tribunals for lack of independence has become one of the most
litigated issues in administrative law. Indeed, since the advent of the Canadian Charter,
some see this new preoccupation with independent decision making as providing a more
extensive basis for challenging adjudicators and statutory regimes than has been envisaged
under traditional common law conceptions of bias.11 Because independence has attracted
such attention as a means of challenging administrative regimes, this chapter focuses first
on arguments regarding lack of independence as a reason for alleging reasonable apprehension of bias on the part of individual administrative decision-makers or of administrative
decision-making institutions.
The notion of tribunal independence raises several questions. To what extent should
tribunals and other administrative bodies be independent of the branches of government
that have created them? How can a tribunal (and its members) best fulfill the often competing functions for which it has been created while maintaining an appropriate distance from
government, litigants, and other stakeholders? And how do we define appropriate in this
context? We explore the various relationships that affect the independence of tribunals and
their individual decision-makers, and the ways that independence may be, or perceived to

in deportation matters (see Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R.
350, but see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.
10 Section 56 of the Quebec Charter reads:
56(1) In sections 9, 23, 30, 31, 34 and 38, in Chapter III of Part II and in Part IV, the word tribunal includes a coroner, a fire investigation commissioner, an inquiry commission, and any person
or agency exercising quasi judicial functions.
11 See Gus Van Harten, Gerald Heckman & David J. Mullan, Administrative Law: Cases, Text, and Materials, 6th
ed. (Toronto: Emond Montgomery, 2010) at 444.

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Chapter 8 Tribunal Independence, Impartiality, and Bias

be, compromised. These relationships are examined critically from both the perspective of
jurisprudential debates and the practical realities of daily tribunal operations. Specific tensions include the appointments process, removal of members, tribunals as a function of
policy making, internal interactions among tribunal members and staff, and the vexing
question of the extent to which explicit and implicit constitutional, structural guarantees of
independence do or should apply to tribunals.
By design, administrative decision-making bodies have been created in a way that leaves
them connected to government. Most have a link with the executive branch of government
through a minister of Cabinet. Generally, under their enabling statutes, tribunals, or at least
their chairs, are required to maintain some contact with this minister. At the very least, they
are obliged to file annual reports to this minister.12 They may also have additional statutory
obligations that force them to interact with the minister and his or her department. For example, they may be asked to provide advice to the minister or additional information on
developments in the regulation of the industry or sector under their supervision.13 Finally,
the minister will certainly be involved in the process of appointing and removing members
of the tribunal. In Ontario, with the enactment of the Adjudicative Tribunals Accountability,
Governance and Appointments Act, 2009 (ATAGAA), the chair of an adjudicative tribunal
must interact with the minister responsible for the tribunal or with the executive branch of
government in order to recommend the appointment or reappointment of tribunal members.14 The design of the Canadian administrative state differs markedly from that of some
jurisdictions. For example, in the United Kingdom, recent tribunal reform has resulted in
all administrative tribunals reporting to an executive agency called Tribunal Service, instead
of to host departments.15
Given the political nature of the executive branch of government and, in particular, its
responsibility to create and promote the governments policies, one can easily see how members of the general public may be wary that inappropriate interference may stem from the
regular interactions between government departments and tribunals. For instance, users of
the tribunal might be concerned that the minister might use these opportunities to dictate,
whether explicitly or implicitly, how particular files should be decided. This concern can be
particularly acute in situations where the government is frequently an opposing party before
the tribunalfor example, in immigration matters or disputes relating to social benefits.

12 A typical provision imposing the obligation to file an annual report to the minister can be found in the Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 180. The Adjudicative Tribunals Accountability, Governance
and Appointments Act, 2009, S.O. 2009, c. 33, Sch. 5 [ATAGAA], requires adjudicative tribunals in Ontario
to report to their responsible ministers on a wide array of matters relating to tribunal internal governance.
These matters include the development and maintenance of consultation policies, ethics plans, and codes of
conduct. ATAGAA is discussed in greater detail below. See infra note 14 and accompanying text.
13 See e.g. Alcohol and Gaming Regulation and Public Protection Act, S.O. 1996, s. 3(4).
14 ATAGAA, supra note 12. See, generally, L. Jacobs, A Wavering Commitment?: Administrative Independence
and Collaborative Governance in Ontarios Adjudicative Tribunals Accountability Legislation (2010) 28(2)
Windsor Y.B. Access to Just. 285.
15 Although one must be careful in making sweeping comparisons because the terminology in different jurisdictions varies according to what exactly an administrative tribunal does.

IV. The Development of the Law of Tribunal Independence in Canada

239

These introductory paragraphs point us in the direction of an initial understanding of


the concept of tribunal independence and why it is important. When we speak of independence, we are referring to the tribunals ability to decide matters free of inappropriate
interference or influence. The executive branch of government may be one source of interference in the administrative law context, but several other sourcesfor example, litigants,
other tribunal members, and staffmay also exist. As in the case of judicial decisions made
in the criminal law context or in civil matters, the independence of the administrative
decision-maker is valued as an aspect of the rule of law. In theory, when decision-makers are
in an insulated zone, the public has greater confidence that the decision being made is based
on only relevant considerations, such as the facts of the case and the law. In the context of the
administrative state, however, the difficulty arises in determining what constitutes relevant
considerations or inappropriate interference.16 Some of the most interesting tensions in
administrative law arise in the clash between the day-to-day realities of the work of administrative tribunals and judicial understandings of how the administrative state should work.
This chapter argues that the law on tribunal independence is no exception. Arguably, it is one
of the richest areas in which to explore these tensions. By focusing primarily on judicial review of administrative action, administrative law has, to date, given privilege to judicial
conceptions of independence while failing to adequately integrate judicial understandings
with on-the-ground tribunal realities.
The following discussion provides an overview of the historical development of the law
on tribunal independence and the relationship between independence and the concept of
impartiality. It explores administrative laws understandings of independence and impartiality from both judicial and tribunal perspectives, using the appointment and removal of
members as an example.
We then take a solid look at the concept of bias and, at the end of the chapter, return to
highlight the connections between adjudicative independence, bias, and the common institutional practices used to promote consistency and policy making, employed in the multifunctional context of many administrative bodies.

IV. The Development of the Law of Tribunal


Independence in Canada
The jurisprudence on tribunal independence in Canada is easiest understood as having developed through a series of three waves. The first wave of jurisprudence used the independence of the judiciary as a foundation on which to mould the concept of administrative tribunal
independence. The second wave, marked by the decision in Ocean Port Hotel,17 affirmed the
hybrid nature of tribunals and maintained that there is no general constitutional guarantee
of independence where tribunals are concerned. The third wave served as a retrenchment:

16 The fact that the enabling legislation may sometimes provide a role for government to play in the decisionmaking process as a partyfor example, in citizenstate contexts such as immigration, radio broadcasting,
or social benefits litigationsometimes also contributes to rendering complex the question of what constitutes relevant or irrelevant considerations.
17 Supra note 3.

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Chapter 8 Tribunal Independence, Impartiality, and Bias

litigants once again pushed to have judicial declarations that administrative tribunal independence is guaranteed by the Constitution.

A. Laying the Groundwork: The Theory of Judicial Independence


A discussion about the independence of administrative bodies is best started with an overview of the theory of judicial independence. At its core, judicial independence is a means of
ensuring that judges act free from any interference or influence. In Australia, Sir Guy Green
has described judicial independence as the capacity of the courts to perform their constitutional function free from actual or apparent dependence upon, any persons or institutions.18
Chief Justice Dickson, speaking for the majority of the Supreme Court in Beauregard v. Canada, offered this useful definition:
Historically, the generally accepted core of the principle of judicial independence has been the
complete liberty of individual judges to hear and decide the cases that come before them: no
outsiderbe it government, pressure group, individual or even another judgeshould interfere in
fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his
or her decision. This core continues to be central to the principle of judicial independence.19

How is this complete liberty to be ascertained? Although it is certainly impossible to


monitor all the contacts and communications of every judge, when it comes to assuring independence from government (the first of the outside interferences noted by DicksonC.J.),
three objective structural conditions have been identified as necessary to guarantee independence: security of tenure, financial security, and administrative (or institutional)
control. These three conditions serve to reassure the public that the possibility of interference in judicial decision making by the executive and legislative branches of government
has been reduced, if not eliminated.
With respect to security of tenure, the type of interference targeted is the ability of the government to remove a judge for such things as rendering decisions that do not meet the
governments approval. As a result, the condition that a judges tenure be secure mandates
that a judge be removed only for cause. Security of tenure is guaranteed by the Constitution,
which provides that judges of the superior courts shall hold office during good behaviour or
until they reach the age of 75.20 Moreover, before removal, judges must be provided with
an opportunity to respond to the allegations against them.21 Consequently, at pleasure

18 Sir Guy Green, The Rationale and Some Aspects of Judicial Independence (1985) 20 A.L.R. 135. Sir Guy
Greens formulation of the concept of judicial independence was endorsed by the Supreme Court of Canada
in Valente v. The Queen, [1985] 2 S.C.R. 673 at para. 18, LeDain J.
19 [1986] 2 S.C.R. 56 at para. 21 (emphasis added) [Beauregard].
20 See Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 99.
21 An example of this is found in the federal Judges Act, R.S.C. 1985, c. J-1, s. 64; see also online: Canadian Judicial Council <http://www.cjc-ccm.gc.ca>, which outlines the complaints procedure and inquiry process for
the investigation of federally appointed judges. For a recent example of the judicial inquiry process in action
see Ruffo (Re), [2005] Q.J. No. 17953 (C.A.) (QL).

IV. The Development of the Law of Tribunal Independence in Canada

241

appointments, which allow judges to be removed at the request of Cabinet, without prespecified cause and without necessarily allowing the judge to be heard, have been rendered
invalid.
Financial security aims to satisfy two goals. The first is a guarantee that, although the
government is responsible for the remuneration of judges, it will not alter their pay for arbitrary reasons such as discontent with decisions rendered. To accomplish this goal, judges
are guaranteed a fixed salary under the Constitution.22 As well, more recently, compensation
commissions have been set up to help facilitate negotiations in judges pay and pay-related
matters, such as pensions.23 The second goal is a promise that the amount that judges are
paid will be sufficient to keep them from seeking alternative means of supplementing their
income. Security of tenure and financial security have historical roots dating back to 13thcentury England.24 The concepts evolved from experiences in which the King manipulated
the judiciary in order to ensure that the bench was sympathetic toward him, and from the
problem of bribery caused by the underpayment of court officials, including judges.
Administrative or institutional control is the third objective guarantee of independence.
Institutional control deals with the manner in which the affairs of the court are administeredfrom budgetary allocations for buildings and equipment to the assignment of cases.
It addresses how responsibility for such administration should be divided between the judiciary and the other branches of government. Although questions about, for example, the
allocation of court cases have clearly been determined to fall properly within the ambit of
the chief justice of the court,25 other matters, such as obtaining budgetary allocations for
equipment, are more problematic.26 For example, allowing judges to obtain their own funding
for resources, instead of asking them to go through a Cabinet minister such as the attorney
general, might appear to be an approach that fosters the independence of the judiciary;
however, this method could result in judges soliciting funds from the government or others,
which is unseemly from the perception of administrative control. For the Supreme Court,
the Federal Courts, and the Tax Court, issues of institutional control that rely on a government allocation of resources have been addressed through the use of a negotiating office
called the Federal Commissioner of Judicial Affairs.27 The problem of balancing judicial
independence and judicial administration is particularly acute at the provincial and territorial level where, as a result of our constitutional division of powers, the administration of
the court system requires some involvement by the provincial legislature and executive.28

22 See Constitution Act, 1867, supra note 20, s. 100.


23 See e.g. Provincial Court Judges Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges
Assn. v. Ontario (Management Board); Bodner v. Alberta; Confrence des juges du Qubec v. Quebec (Attorney
General); Minc v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 S.C.R. 286.
24 See W.R. Lederman, The Independence of the Judiciary (1956) 34 Can. Bar Rev. 769, 1139.
25 See Valente v. The Queen, [1985] 2 S.C.R. 673.
26 See Martin Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian
Judicial Council, 1995); see also Jules Deschnes and Carl Baar, Masters in Their Own House (Ottawa: Canadian Judicial Council, 1981).
27 Established under Part III of the Judges Act, supra note 21.
28 See Constitution Act, 1867, supra note 20, s. 92(14).

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Chapter 8 Tribunal Independence, Impartiality, and Bias

As with security of tenure and financial security, administrative control is concerned


with making sure that judges are not put in compromising situations where they might
choose to make decisions to protect their own employment and interests, rather than for the
sake of rendering decisions solely on the basis of their legal judgment. However, unlike the
first two guarantees of independence, the nature of administrative control is primarily institutional as opposed to individual. Although there may be implications that affect an individual judge, it is not the individual judge and his or her relationship with the government
that is at issue, but the relationship between the government and the court as an institution.
Finally, the jurisprudence has come to recognize another type of independencethat is,
independence from interference in deliberations, commonly known as adjudicative independence. Referenced briefly in the Supreme Courts decision in Beauregard,29 the concept of adjudicative independence embodies the ability of a decision-maker to decide, free
of inappropriate interference by other decision-makers. Such inappropriate interference
may include, for example, pressure to decide a certain way or substitution of anothers decision for ones own. Unlike security of tenure, financial security, and administrative control,
adjudicative independence is not structural in nature. It does not relate to the design of the
institution by the government. Adjudicative independence deals with relational matters and
the internal process of deliberation by individual decision-makers. Adjudicative independence is one guarantee of independence that is frequently called into question in the administrative state, especially as a result of institutional practices used to develop policy and
consistency. We examine adjudicative independence in greater detail when we discuss institutional bias.
As alluded to in the introduction, the purpose of judicial independence is to help boost
public confidence in the justice system. Judicial independence has the protection of the
public in mind, not the protection of the judges. The mere appearance of inappropriate interference with the decision-making process is enough to engender a loss of public confidence in the decision-making mechanisms of the state.30 On a micro level, whether the duty
of fairness has been breached in any given proceeding is generally foremost on the minds of
particular litigants. Some would argue that a reasonable perception of interference may
threaten public acceptance of the law itself. In this light, independence is not a goal in and
of itself; rather, judicial independence serves as a cornerstone to protect other values that are
considered important within our system of justice. Most commonly, independence is said
to be maintained in order to provide an appearance of impartiality in the decision-making
process. Providing guarantees of independence aims to assure the public that decisionmakers are in a position to make decisions impartially. Similarly, the independence of administrative tribunals seeks to achieve the same goal.

B. From Judicial Independence to Tribunal Independence


Over time, the criteria guaranteeing independence of the judiciary have served as a foundation
from which courts have determined whether administrative tribunals are also sufficiently
29 See Beauregard, supra note 19 and accompanying text.
30 See R. v. Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256.

IV. The Development of the Law of Tribunal Independence in Canada

243

independent. Valente v. The Queen31 was the first Supreme Court case in Canada to suggest
the idea that the guarantees for judicial independence could also be applied to a variety of
tribunals.32 Since that time, litigants have pushed for tribunals to be held to the same degree
of independence as the courts. These litigants have argued that various constitutional safeguards (namely, ss.7 and 11(d) of the Canadian Charter as well as the unwritten constitutional
principle of judicial independence) and quasi-constitutional provisions (such as, s.23 of the
Quebec Charter and the Canadian Bill of Rights) guarantee tribunal independence.33
The test for adequate tribunal independence is whether a reasonable, well-informed person
having thought the matter through would conclude that an administrative decision-maker
is sufficiently free of factors that could interfere with his or her ability to make impartial
judgments.34 The standard for tribunal independence is not as strict as it is for judicial independence. Administrative tribunals do not have to meet the same degree of independence
as the courts do. The methodological approach taken by the courts when the independence
of an administrative tribunal is challenged consists of applying the guarantees of tribunal
independence in a flexible way to account for the functions performed by the tribunal under
scrutiny. This method was stated concisely in Canadian Pacific Ltd. v. Matsqui Indian Band 35
by Lamer C.J.:
[W]hile administrative tribunals are subject to the Valente principles, the test for institutional
independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure, financial
security and administrative control) will depend on the nature of the tribunal, the interests at
stake, and other indices of independence such as oaths of office.36

Reference to the operational context of the tribunal takes place not only through an
examination of the tribunals functions as declared in its enabling legislation, but also
31 [1985] 2 S.C.R. 673 [Valente].
32 Valente was the first Supreme Court case to deal with the question of judicial independence in Canada. The
question at issue was whether a provincial court judge, appointed under the Provincial Courts Act, R.S.O.
1980, c.398 and sitting as the Ontario Provincial Court (Criminal Division), could be considered an independent tribunal under s. 11(d) of the Charter.
33 See e.g. with respect to the Charter, s. 7, Singh, supra note 5 and, with respect to s. 11(d) of the Charter, R. v.
Gnreux, [1992] 1 S.C.R. 259; Ruffo v. Quebec (Conseil de la magistrature), [1991] A.Q. No. 1101 (QL)
(Sup.Ct.)the argument relating to s.11(d) of the Charter was abandoned at the higher levels of court; Alex
Couture Inc. et al. v. Canada (Attorney General) (1991), 83 D.L.R. (4th) 577 (Que. C.A.); leave to appeal denied
[1992] 2 S.C.R. v, at 91 D.L.R. (4th) vii; in relation to the unwritten constitutional principles stemming from the
preamble of the Constitution, see Ocean Port Hotel, supra note 3, and McKenzie (Sup. Ct.), supra note 3, decision on appeal; as regards s. 23 of the Quebec Charter, see 2747-3174 Qubec Inc. v. Quebec (Rgie des permis
dalcool), [1996] 3 S.C.R. 919 [Rgie], and Montambeault v. Brazeau, [1996] A.Q. No. 4187 (Que. C.A.) (QL).
34 This test, generally referred to as the reasonable apprehension of bias test, has many purposes. It is used to
determine whether a reasonable apprehension exists that an administrative decision-maker has acted partially or exhibited bias. Moreover, it has been applied to evaluate administrative bodies as a whole in order to
determine whether the institution can be said to exhibit a lack of independence or impartiality in a substantial number of cases. The test is discussed below in section V, Reasonable Apprehension of Bias.
35 [1995] 1 S.C.R. 3 [Matsqui].
36 Ibid. at para. 83.

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Chapter 8 Tribunal Independence, Impartiality, and Bias

through an appreciation of the tribunal as it functions in practice. In Matsqui, the need to


see the tribunal in practice was a point of division between the majority and minority decisions. While all the judges who addressed the issue agreed with the theoretical approach set
out by LamerC.J., outlined above, the majority opinion on this issue maintained that the
test should be deferred until the tribunals had actually been up and running in order to have
the benefit of knowing how they operated in practice.37
The principles developed in Matsqui were applied in 2747-3174 Qubec Inc. v. Quebec
(Rgie des permis dalcool),38 a case argued under s. 23 of the Quebec Charter. In Rgie, it was
held that the directors of Quebecs liquor licensing board possessed sufficient security of
tenure despite the fact that their terms of office were limited. The Supreme Court of Canada
held that the requirements of tribunal independence do not necessitate that administrative
actors, like judges, hold office for life. The Court reasoned that what must be avoided, however, is that adjudicators face the possibility of being simply dismissed at the pleasure of the
executive branch of government. The fixed-term appointments in Rgie were acceptable
because they provided expressly that the decision-makers (called directors in Rgie) could
be dismissed only for specific reasons. The directors could also contest any dismissals in
court. Sanctions were therefore available for any arbitrary interference by the executive in a
directors term of office. The respondent in Rgie also challenged the boards administrative
control. It argued that there were so many points of contact between the liquor board and
the minister responsible for the boards enabling legislation that the boards institutional
independence was threatened. However, the Court held that administrative control was also
sufficient. The Court reasoned that it was not unusual for a minister to have many points of
contact with a tribunal under its responsibility. The Court noted further that no evidence
had been provided to show that the minister could affect the decision-making process.39
It is easy to state the test for tribunal independence and to give illustrations of how the test
has been applied in the jurisprudence. It is more challenging, however, to explain why flexibility is needed when applying the criteria for judicial independence to tribunals. Standard
explanations point to the wide range of tribunal structures, the various ways that tribunals
are connected to government, the great divergence in the nature and work of administrative
bodies, and the many functions that any one administrative body may be asked to perform
in tandem. These standard explanations also emphasize that the test for independence is
often a way of investigating whether a reasonable apprehension of bias exists in a particular
administrative context. Although such explanations take us to a certain point, they do not
explain why tribunals ought not to have the same guarantees of structural independence
37 Ibid. at paras. 116-17.
38 Rgie, supra note 33.
39 Nevertheless, the Supreme Court of Canada held that the liquor licensing board lacked the requisite degree
of impartiality to meet the requirements of s.23 of the Quebec Charter. This is because it was possible for one
single employee to participate at every stage of the process leading up to the cancellation of a liquor permit,
from investigation to adjudication. The possibility that an employee who had made submissions to the directors might then advise them in respect of the same matter was held to be problematic as it puts the same
individual into conflicting roles within the institution. There was also no evidence of on-the-ground measures being put in place to prevent a single employee from playing multiple and possibly conflicting roles; see
also Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301.

IV. The Development of the Law of Tribunal Independence in Canada

245

security of tenure, financial security, administrative controlas a court. Perhaps the best
judicial attempt to explain normatively why the objective guarantees of judicial independence need not apply to administrative tribunals comes from the Supreme Court of Canadas
decision in Ocean Port Hotel,40 discussed in the next section.
In many cases, the objective guarantees of independence for the judiciary do not meet
anything near a complete match for tribunals. With regard to administrative control, similar
to courts, most tribunal chairs, like chief justices, are responsible for distributing their own
caseload and for tribunal management. As well, the tribunal chair usually has the authority
to allocate budgetary resources as effectively as possible. However, things differ considerably
from the judiciary when it comes to financial security and security of tenure. Although the
pay for a tribunal member is normally set by legislation, for part-time members in particular, the pay is often disproportionate to the skill contributed. Generally, tribunal service is
seen as a type of public service, done more for honour than for glory or riches.41 In the administrative tribunal context, security of tenure shows a similar marked difference from the
judiciary. Tribunal members can be appointed for a variety of terms. Some statutes provide
for fixed-term appointments, varying from months to years. In some cases, appointments
are renewable; in others, the statute gives no mention of renewal; and in others still, appointments are not renewable at all.
One type of appointment, termed an at pleasure appointment because it allows the
government to appoint a member for as long as the government deems fit, has generated
significant controversy in administrative law jurisprudence. In essence, at pleasure appointments, theoretically, enable the government to remove a decision-maker whose decisions
are not in line with its expectations. Given that tribunals are to be independent or at arms
length from government, at pleasure appointments open the door to the possibility of
governmental interference with tribunal decision making. The issue of whether at pleasure
appointments fail to provide adequate guarantees of independence from arbitrary interference from the executive branch of government was addressed in Ocean Port Hotel. The issues
surrounding at pleasure appointments were not resolved, however, as the more recent case
of Keen v. Canada (Attorney General)42 demonstrates. For more than one reason, Ocean Port
Hotel forms a turning point in the jurisprudence on the independence of administrative tribunals. It constitutes the second wave of jurisprudence in this area. We address it next, along
with the practical risks of at pleasure appointments, illustrated by the later case of Keen.

1. Ocean Port Hotel and Keen: Parliamentary Supremacy Versus


Warding Off Interference
a. Ocean Port Hotel
In its narrowest sense, the Supreme Court of Canada decision in Ocean Port Hotel is significant because it attempted to lay to rest the controversial issue of whether at pleasure appointments provide a satisfactory degree of independence for decision-makers sitting on
40 Ocean Port Hotel, supra note 3.
41 See online: Ontario Public Appointments Secretariat <http://www.pas.gov.on.ca/scripts/en/home.asp>.
42 2009 FC 353, [2009] 3 F.C.R. D-16 [Keen].

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