Attorney General's administrative justice project

Law Society cautions against omnibus reforms to administrative tribunals

The Law Society has asked the provincial government not to pursue a "one size fits all" approach to administrative justice reform, but to undertake a tribunal-by-tribunal review within its administrative justice project.

The Attorney General launched a broad legal and policy review of the administrative justice system last year, with a focus on the mandates and processes of 60 administrative justice agencies in BC.

To date the Ministry has released seven discussion papers - 1) Human Rights Review, 2) Standard of Review on Judicial Review or Appeal, 3) Administrative Agencies and the Charter, 4) Statutory Powers and Procedures, 5) Levels of Appeal, 6) Reviewing Original Decisions: Guiding Principles and Options and 7) Appointments: A Policy Framework for Administrative Tribunals - and has announced that a white paper will be issued shortly on proposed legislative reforms.

In April and June this year the Law Society made submissions to the administrative justice project, expressing support for the overall goals of the review and stressing the importance of public confidence.

"The Law Society supports the stated goals of the administrative justice project, but wishes to ensure that reforms are based on substantive considerations, and not simply on financial ones," the report said. "The Law Society believes that the results of the reforms to the administrative justice system in British Columbia must leave the public with a sense of having a significant increase in their access to the justice system for the resolution of disputes with the government on administrative matters, and also with a sense of faith in the independence and integrity of that system."

The Law Society has put forward key recommendations for the administrative justice project:

  • Reform to the administrative justice system should not be attempted by generic or omnibus legislation designed to apply to all components of the system.
  • The reform process should include a tribunal-by-tribunal review. This review would allow a thorough examination of the issues, such as the needs, expertise and subject matter of each component of the system. Such a review could include the work already undertaken by the government's core review process.
  • A tribunal-by-tribunal review should be completed before legislation designed to clarify process is proposed.
  • The reform process should consider creating a "council of tribunals" to undertake the proposed review. Such a council may be given an ongoing function beyond the present review process but, if so, the Law Society recommends against granting it any formal power of review of specific decisions or actions of any tribunal, board or agency.
    Such a council ought to have the power to make recommendations and act as an independent advisory council to government on the administrative justice system.
  • The administrative justice project should consider who should be given a right of audience before any tribunal, board or agency.
  • The administrative justice project should not be the end of the process. There should be (possibly through a council of tribunals or some similar body) a process allowing for the continual review of the administrative justice system.

The Law Society has also emphasized that, no matter what process is chosen for administrative justice reform, much will depend on the appointments process.

"The quality of appointments has a significant effect on the quality of decisions made, as well as on the manner in which the tribunal operates," the Law Society has told government. "The appointments process has a considerable effect on the cost of the administrative justice system, and very importantly, in how much respect is afforded to the system by those who use it. The two most important aspects of appointments policy and procedure centre around the level of independence given to the decision maker and the quality and competence of the decision maker."

The Law Society submissions are available in What's New on the Law Society website at www.lawsociety.bc.ca. For more on the Ministry of Attorney General administrative justice project, see www.gov.bc.ca/ajp.