Administrative Justice Project

Preliminary Response of The Law Society of British Columbia

July 2002

Following: Further Response of the Law Society of British Columbia

Preface

The Law Society of British Columbia is the governing body of lawyers in the province of British Columbia. The Law Society's responsibilities are set out in the Legal Profession Act, a provincial statute which delegates to the Law Society the power to admit new members, make rules and monitor the conduct and competence of lawyers.

The powers, objects and duties of the Law Society are set out in the Legal Profession Act. In the performance of its statutory mandate, the first responsibility of the Law Society is to uphold the public interest in the administration of justice. This is given the force of law in s. 3 of that Act:

3 It is the object and duty of the society

(a) to uphold and protect the public interest in the administration of justice by

(i) preserving and protecting the rights and freedoms of all persons,

(ii) ensuring the independence, integrity and honour of its members, and

(iii) establishing standards for the education, professional responsibility and competence of its members and applicants for membership, and

(b) subject to paragraph (a),

(i) to regulate the practice of law, and

(ii) to uphold and protect the interests of its members.

That statutory mandate is fulfilled through a sophisticated organization. The Law Society is governed by a Board of Directors, called by the traditional name, the Benchers. Twenty-five Benchers are elected by members of the Law Society; up to six are appointed by the provincial Cabinet as full voting Lay Benchers to represent the non-lawyer point of view. The Chief Elected Officer is the President.

This response has been prepared on behalf of the Access to Justice Subcommittee of the Benchers, made up of Benchers, Lay Benchers, and non-Bencher lawyers appointed to the Subcommittee by the President.

I. Introduction

Throughout the 20th century government has undertaken the regulation of much of the daily lives of citizens within its jurisdiction. There has consequently been a proliferation of regulatory agencies to administer the regulatory functions of government, and tribunals to adjudicate upon disputes between individuals concerning such regulations or, as often as not, between the government in the application of its regulations and the individual or individuals affected by them.

The Attorney General has commented that the present system of administrative justice in British Columbia is unwieldy. There are many tribunals or agencies with overlapping functions, and it seems to many that each tribunal has its own special procedures. There are some boards or tribunals with layers and layers of appeal or review tribunals overtop of the initial decision maker. The law respecting standards of review of administrative decisions by the courts is complex.

The Law Society of British Columbia is aware that British Columbia is one of the few common-law jurisdictions that has not, over the last five decades, reviewed its administrative justice system in any great detail. Because administrative law affects so much of the life of the citizens of British Columbia, and because those citizens have the potential to come into contact with the administrative justice system on a much more frequent basis than many other areas of law, the Law Society agrees that this is a propitious time to examine the system.

Due to the complexities of the issues and the multifaceted nature of the administrative justice system, the Law Society believes that significant care must be taken by the government in considering reform. The Law Society believes that access to justice by the citizens of the Province must be kept foremost in the minds of the government. Because the object and duty of the Law Society is to uphold and protect the public interest in the administration of justice, the Law Society intends to pay close attention to the recommendations made as a result of this project and to any legislative proposals introduced by the government on this topic.

It is the Law Society's position that any reforms to the administrative justice system cannot be made simply on the basis of a single opportunity given to interested groups to comment on a series of option papers. While the papers so far presented have been informative and useful in focusing discussion, the options presented are with respect to discrete subjects and make little attempt to examine options in an integrated fashion. The Law Society strongly believes that further consultation with interested groups regarding any initiatives developed from this round of consultation would be a benefit to all affected by the administrative justice system, including the government.

The Law Society also believes that reforms to the administrative justice system cannot be made solely on the basis of isolated cost or financial considerations. Financial considerations are important, but focusing solely on financial considerations or cost-savings often leaves unasked whether the costs which may be saved are simply shifted elsewhere in the system. For example, if cost savings are realized for tribunals by clarifying questions as to whether tribunals have the power to apply the Charter of Rights and Freedoms, will those cost savings simply be shifted to the Superior Courts when there is an increase in applications for the review of those tribunal decisions, especially where the tribunal may not have had the expertise to make the decision in the first place?

Financial considerations also tend to ignore other important but intangible considerations. Tribunals, for example, can have an important educative value. As they are often an "entry point" to the justice system, they can teach citizens important lessons about how to logically order an argument and organize issues, rather than resorting to emotional presentations in other forums. Effective tribunals, at the "entry level" of the justice system, can also have an important role to play by encouraging respect for the system as a whole. If, on the other hand, they are badly managed or improperly funded, they can do much to harm the justice system in the eyes of members of the public.

While the Law Society supports the stated goals of the administrative justice project, it wishes to ensure that reforms are based on substantive considerations, not simply financial ones. If, for example, the result of reforms 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, the Law Society would consider the reforms to be a success.

II. Comments on the discussion papers released to date

At the time this report is being prepared, five discussion papers have been released:

  1. Human Rights Review;
  2. Standard of Review on Judicial Review or Appeal;
  3. Administrative Agencies and the Charter;
  4. Statutory Powers and Procedures; and
  5. Levels of Appeal.1

The Law Society understands that at least two further discussion papers are presently being prepared:

  1. Appointments policy; and
  2. Multiple proceedings.

It would have been the Law Society's preference to comment on all papers at the same time. It is difficult to comment on options presented for discrete topics when it is implicit that the reforms will address the subjects in an integrated fashion. However, the Law Society believes that it can provide general comment with respect to the papers presented to date. Comment regarding the Human Rights issues will be forthcoming under a separate report prepared by the Equity and Diversity Committee of the Law Society.

The Law Society puts forward the following general propositions:

1. The clearer government can make any legislation with respect to any issue of administrative justice, the better it is for all parties concerned.

2. A "one size fits all" approach to administrative justice reform is not advisable.

3. Given the lack of wisdom in a "one size fits all" approach, a tribunal-by- tribunal review of the administrative justice system will ultimately be required to properly effect administrative justice reform.

4. The overall effectiveness of reforms to the administrative justice system ultimately depends on the appointments process.

5. Who is to be given a right of audience before any tribunal is an issue that has not formed part of the process. In the view of the Law Society, this is an important matter for consideration.

6. This initiative requires ongoing consideration and consultation.

Each of these general comments are developed more fully below:

1. The clearer government can make any legislation with respect to any issue of administrative justice, the better for all parties concerned.

The Law Society considers that the need for clarity in legislation can be applied to each of the discussions about standards of review, application of the Charter by administrative agencies, and statutory powers and procedures.

A. Statutory Powers and Procedures

To properly perform its mandate, it is necessary for each administrative agency to have the appropriate powers and procedures. Clarification of this important point in enabling legislation would be very beneficial. Clear and sensible procedures also make approaching the agency or tribunal easier for the public, thereby increasing the public's access to justice through the administrative justice system.

Administrative agencies only have the powers that are expressly conferred on them (or are necessarily implicit) in their enabling legislation. Common-law duties of fairness also govern the work of tribunals. The Law Society recognizes that at present the content of those duties and powers are often the subject of much dispute. They are, in the words of the Supreme Court of Canada, "eminently variable."2 As a result, users of the administrative justice system are faced constantly with the task of navigating the range of powers that may be exercised by, and procedures governing the appearance before, practically each and every tribunal in the province.

The Law Society therefore generally supports an effort to bring more order to the present "eminently variable" nature of powers and procedures. Doing so will be of benefit to all the users of the administrative justice system. Again, the diverse nature of the agencies and tribunals weighs against creating omnibus legislation concerning statutory powers and procedures. A tribunal-by-tribunal review would be necessary before even making any attempt to identify areas of commonality between tribunals.

B. Administrative Agencies and the Charter

While the Law Society recognizes that there would be no harm in clarifying the ability of agencies to apply the Charter to their decisions, there is no real suggestion that this is a pressing issue. It is quite unlikely, in any event, that the issue of Charter application by a tribunal will be resolved in any final sense by the tribunal itself. Even if legislative reform is brought to this issue, Courts may well end up deciding the matter on a case by case basis. Again, the Law Society believes that it is important to emphasize that generic legislation on such an issue would be ill-advised. It would be inappropriate to vest power in a tribunal to make decisions about Charter applicability if the tribunal possesses no legal expertise. If reform is desired on this issue, it would be more advisable to legislate the issue by way of a specific provision in each enabling statute.

C. Standards on Judicial Review and Appeal

The Law Society agrees with the general proposition that it would be helpful, through legislative reform, to clarify the standards of review to be adopted by courts on judicial review or appeal. The result of such an effort would likely offer the public greater access to justice. Simply by obviating the necessity of arguing which standard of review should apply would greatly reduce the cost of a judicial review or appeal, both to the parties and to the legal system as a whole. Reform in this area of the administrative justice system could also reduce the number of review applications, which would have the added benefit of minimizing the delay in those applications which must go forward.

While legislation of general application on the topic would do the most to simplify the issue, it is doubtful, in the view of the Law Society, that such legislation would be possible in the administrative justice system. Generic legislation, for example, may risk according too much curial deference on a question for which a particular tribunal has no expertise.

Consideration of the appropriate standards of review on judicial review or appeal would, in the opinion of the Law Society, best be examined on a tribunal-by-tribunal basis.

D. General Comments

Legislative clarity is, of course, a necessary and desirable goal for all legislation. Complex legislation simply leads more frequently than not to the necessity of going to court to obtain judicial interpretation on the meaning of legislation, often at some considerable cost and frequently requiring considerable time. If the legislation is to set out the procedural requirements of administrative agencies or tribunals, legislative clarity is all the more important. It is of little use to set out, in legislation, procedural requirements that are so complex or oblique as to require judicial interpretation. It would simply defeat the purpose. Legislation which has not fully considered the different needs, composition or expertise of all the components of the administrative justice system will do much more harm and create much more confusion than that which is presently thought to exist.

From the point of view of the Law Society, deciding what the standards are is ultimately less important than ensuring that they are clearly defined and described in the legislation.

The Law Society agrees that the administrative justice system could benefit significantly by addressing, through legislative reform, the issues discussed above. However, if the government is disposed to undertake this task, great care must be taken. An issue which does not appear to have been addressed in the discussion papers is the fact that there is presently a wealth of jurisprudence interpreting the present language of the statutes. While clarity or simplification through reform is desirable, it is of paramount importance to ensure that reform does not simply purport to clarify troublesome issues (on which there is some existing jurisprudence) while opening up new arguments on which there is no judicial guidance. The ultimate effect of the reform must be to preserve or enhance the access of the public to the system, rather than to simply create a "more efficient" or "less expensive" system.

2. A "one size fits all" approach to administrative justice reform is not advisable

The administrative justice system is not a homogenous system. It is made up of agencies and tribunals which can vary to a great degree in, for example, the make-up of the agency, the expertise of its members, and the complexity of subject matter dealt with by the agency. The diversity of the boards, agencies and tribunals is necessary to an efficient administrative justice system. There would be no point in having a sophisticated commission-like administrative system for the issuance of dog licenses.

The discussion paper entitled "The Statutory Powers and Procedures of Administrative Tribunals in British Columbia" comments at page (i) that studies and legislative reforms from other jurisdictions:

universally reject the creation of a single, comprehensive code of tribunal powers and procedures, but they do propose a number of alternatives designed at once to enhance sound strategic thinking in tribunal legislation and ensure a proper balance between procedural fairness and effective, principled administration.

The Law Society believes that the rationale for rejecting a single code for tribunal powers and procedures extends to rejecting single comprehensive legislation on any aspect of administrative law. The Law Society does not believe that there is any practical way of developing general legislation which can adequately take into account all the differences between the components of the administrative justice system. An effort to do so could generate a significant degree of litigation on behalf of agencies and the public affected by them, each seeking judicial interpretation holding that the legislation is not applicable, such as has occurred in the past with respect to the interpretation of privative clauses. This would result in a general increase to the cost of the system and no real benefit.

In order to be able to respond to the needs of the various components of the system, there must be a clear understanding of the requirements of and issues faced by the agencies. There may be some common elements in these that can form some sort of "base" legislation.

3. Given the lack of wisdom in a "one size fits all" approach, a tribunal-by-tribunal review of the administrative system will ultimately be required to properly effect administrative justice reform.

As is evident from the comments made in the sections above, the Law Society supports a tribunal-by-tribunal review of legislation concerning issues such as statutory powers and procedures and standards of review. While this review will no doubt be a time consuming one, there are too many dangers in trying to fix the issues with generic legislation. Ultimately, the result of a tribunal-by-tribunal review could result in a much better focus on the issues facing each administrative agency. This would allow the creation of legislation which will truly improve the efficiency of the system and would address issues of importance to the Law Society having regard to its statutory mandate. Certain common issues may be identified by such a review which can be the subject of some general level of legislation that will form a common basis for all tribunals.

How such a tribunal-by-tribunal review would best be conducted is an important question. It could be undertaken by the government through the Ministry of the Attorney-General. Alternatively, each tribunal or agency could be required to submit its own review. A third alternative would be to conduct the review by a body independent of the government or the agencies and tribunals, in the manner of the Council of Tribunals established in England in 1958. 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. A Council of this nature ought to have recommendatory powers, and be able to act as an independent advisory Council to government. The Law Society recognizes that the Legislative Assembly's focus on monitoring the principles of administrative justice as they apply to the administrative justice system, as well as the needs of the individual components of that system, often gets distorted by other pressing issues of government. A Council could assist greatly in this regard.

In any event, the Law Society considers that it is absolutely necessary to analyse issues such as the work, needs, nature of expertise and subject matter of each agency or tribunal before the government enacts legislation designed to clarify processes. The work of the Core Review Process could be included as part of the proposed tribunal-by-tribunal review.

4. The overall effectiveness of reforms to the administrative justice system ultimately depends on the appointments process.

At page 19 of the discussion paper entitled "The Statutory Powers and Procedures of Administrative Tribunals in British Columbia," it is stated that:

Statutory powers and procedures are a means to an end; they do not decide cases. They represent a "legislative tool kit" intended to assist administrative decision-makers to carry out their statutory mandates in an effective, fair, creative and efficient manner. In good hands, effective tools can produce outstanding work. In untrained hands, such tools may be positively dangerous.

At page 18 of the same paper it is stated that:

.even the most enlightened legislative reform initiative will be at risk if it is not accompanied by high quality appointments and training.

There is, of course, to be a discussion paper published on the appointments process, and there will be an opportunity to comment thereon at a later date. However, the Law Society considers it very important to note now that no matter what process of reform is ultimately chosen, much about how the public interest in the administration of the administrative justice system is protected will depend upon the appointments process. The quality of appointments will have a significant effect on the quality of decisions made, as well as on the manner in which the tribunal operates. The appointments process therefore has a considerable effect on the cost of the administrative justice system (both in time and in dollars), and in how much respect is afforded to the system by those who use it.

It is vitally important as well to ensure the independence of decision-makers. While the Law Society has reviewed the comments of Sir Andrew Leggatt in his report on the Review of Tribunals in the United Kingdom3 on this subject, we will await the release of the appointments process discussion paper before making further comment on this important issue.

5. Who is to be given a right of audience before any tribunal is an issue that has not formed part of the review process. It is, in the view of the Law Society, an important matter for consideration.

Although this issue may be a subset of the powers of a tribunal or agency, it has not been clearly identified as such in the discussion papers to date and is, in the Law Society's opinion, an important issue for consideration on its own.

Parties to a dispute must, of course, always be entitled to appear before a tribunal. The Law Society considers it equally necessary to ensure that the importance is understood of allowing parties to retain counsel to present their case to the tribunal, board or agency. No matter how successful any reforms are in improving the clarity of the enabling legislation, parties should never be precluded, either through legislation or rules, the opportunity of obtaining the assistance of those skilled in law and advocacy in the presentation of what can often be issues of crucial importance to a party.

There are inefficiencies and consequences in requiring individuals to "help themselves". Legal counsel can significantly assist in the work of the administrative justice system. Counsel are trained to address points of importance to the lis between the parties and can focus better on the evidence, allowing the tribunals to hear and consider it rather than having, in many cases, to "extract" the evidence itself. Counsel should therefore be able to allow for time efficiencies in the system. Requiring individual parties to face, often for the first time, issues such as effectively presenting a case to an independent arbiter can be daunting. Even if procedural reform simplifies the task, that simplification does not much matter if one is not familiar with, or is worried about, the process to begin with.

There are, of course, financial considerations which arise in the event counsel are retained. Sometimes, the costs may make it uneconomical or impractical to retain counsel for a particular matter. One might therefore consider whether:

1. In some situations, paralegals or legal assistants might be allowed to represent a party as an "agent." If this is to occur, the Law Society considers it important, in order to adequately protect the public interest in the administration of justice, that such agents be permitted only where they are under the direct supervision of lawyers.

2. Legislation might be passed authorizing the recovery of costs in situations where costs are truly warranted. Presently, the power to award costs is rare, and where it exists, does not allow any appreciable benefit to the party entitled.

Although there may be added financial costs to legal representation, an important principle is at stake: that of the freedom of citizens to obtain legal assistance if they so choose. Lawyers may also represent a party pro bono, and if a lawyer is prepared to do so, there must not be Rules prohibiting him or her from appearing.

6. This initiative requires ongoing consideration and consultation.

Reform of the administrative justice system, a system which is multifaceted and integral to the overall system of justice, requires ongoing consideration. It is not an issue which can be adequately addressed by being reviewed once, over a period of a year, by virtue of the release of a number of discussion papers and receiving comments thereon from interested parties.

The Law Society believes that some process should be put in place which will allow for the continual review of the administrative justice system. Such continuous monitoring would allow the government to gauge whether any reforms created as a result of the present project have had the desired effect. It would also create an efficacious process for a more timely reconsideration of issues as they arise in the various boards, agencies and tribunals. As stated above, the focus of the Legislative Assembly cannot always be on monitoring the principles of administrative justice as they apply to the administrative justice system. If a process is put in place to do just that, issues can be brought to the legislature's attention without having to recreate a special Project, such as the one presently carrying on its work.

The independent advisory council suggested in item 3 above could be utilized for such an ongoing monitoring or review purpose. It would have the added benefit of being independent from the government ministries to which the administrative agencies presently report, which could greatly enhance the overall independence of the system.

III. Recommendations

Arising out of the discussion above, the Law Society recommends:

1. Reform to the administrative justice system should not be attempted by generic or omnibus legislation designed to apply to all the various components of the system.

2. The reform process should include a tribunal-by-tribunal review of the administrative justice system. This review would allow a thorough examination of the issues such as the work, needs, nature of expertise and subject matter of each component of the system. Such a review could include the work already undertaken by the Core Review Process.

3. A tribunal-by-tribunal review must be completed before legislation designed to clarify process is proposed.

4. 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 recommendatory powers, and act as an independent advisory Council to government on the administrative justice system.

5. Part of the consideration given by the Administrative Justice Project should include issues surrounding who should be given a right of audience before any tribunal, board or agency.

6. This Project should not be the end of the process. There should be put in place (possibly through a Council of Tribunals of some similar body) a process allowing for the continual review of the administrative justice system.

IV. Conclusion

The administrative justice system is an important component of the justice system as a whole. It has not been the subject of reform, or even of much review, in British Columbia. The Law Society agrees that there are many aspects of the system that should be reviewed, and that the overall goals of the Administrative Justice Project are worthy of support.

Reform to the system must not, however, be done by way of a one-time separate examination of topics concerning the administrative justice system. The topics are all related, and solutions for the improvement of the system depend upon addressing the topics in an overall manner, rather than on a topic by topic basis. The topic deserves a process allowing for its continual review. The Law Society would have preferred to comment on all the discussion papers at once, and hopes there will be a further opportunity to do so after the release of all discussion papers and before the anticipated White Paper is prepared.

The Law Society appreciates the opportunity to provide its comment to the Administrative Justice Project, and hopes that they are useful to the Project.

Footnotes:

1. The discussion paper entitled "Reviewing Original Decisions: Guiding Principles and Options" was released as this response was being finalized. This response does not therefore include comment on the topic. [Back to body of report]

2. Knight v. Indian Head School District No. 23 [1990] 1 S.C.R. 653 at 682 as quoted at page 15 in the discussion paper "The Statutory Powers and Procedures of Administrative Tribunals in British Columbia." [Back to body of report]

3. Tribunals For Users - One System, One Service (August 2001). With respect to the appointments process, the Law Society particularly notes the comments in paragraph 2.32 of the Report. [Back to body of report]


Administrative Justice Project

Further Response of The Law Society of British Columbia

Preface

The Law Society of British Columbia is the governing body of lawyers in the province of British Columbia. The Law Society's responsibilities are set out in the Legal Profession Act, a provincial statute which delegates to the Law Society the power to admit new members, make rules and monitor the conduct and competence of lawyers.

The powers, objects and duties of the Law Society are set out in the Legal Profession Act. In the performance of its statutory mandate, the first responsibility of the Law Society is to uphold the public interest in the administration of justice. This is given the force of law in s. 3 of that Act:

3 It is the object and duty of the society

(a) to uphold and protect the public interest in the administration of justice by

(i) preserving and protecting the rights and freedoms of all persons,

(ii) ensuring the independence, integrity and honour of its members, and

(iii) establishing standards for the education, professional responsibility and competence of its members and applicants for membership, and

(b) subject to paragraph (a),

(i) to regulate the practice of law, and

(ii) to uphold and protect the interests of its members.

That statutory mandate is fulfilled through a sophisticated organization. The Law Society is governed by a Board of Directors, called by the traditional name, the Benchers. Twenty-five Benchers are elected by members of the Law Society; up to six are appointed by the provincial Cabinet as full voting Lay Benchers to represent the non-lawyer point of view. The Chief Elected Officer is the President.

This response has been prepared on behalf of the Access to Justice Subcommittee of the Benchers, made up of Benchers, Lay Benchers, and non-Bencher lawyers appointed to the Subcommittee by the President.

I. Introduction

The Attorney General initiated the Administrative Justice Project in the summer of 2001 to review the system of administrative justice in British Columbia. The project was created to examine many different types of issues, including agency mandates, administrative practices and procedures, and appointments policies. The administrative justice project published a number of discussion papers on various topics. Several discussion papers have indeed been published by the Project and, in April 2002, the Law Society prepared a preliminary response with respect to the papers concerning standards of review and judicial review appeal, administrative agencies and the Charter, and statutory powers and procedures.

The Administrative Justice Project has now released two additional discussion papers:

  1. Reviewing Original Decisions: Guiding Principles and Options, and
  2. Appointments: A Policy Framework for Administrative Tribunals.

This further response of the Law Society addresses the topics raised in these discussion papers.

II. General comments

As stated in the preliminary response by the Law Society, it is the position of the Law Society that any reforms to the administrative justice system cannot be made simply on the basis of a single opportunity given to interested groups to comment on a series of option papers. The Law Society strongly believes that further consultation with interested groups regarding any initiatives developed from this round of consultation would be a benefit to all affected by the administrative justice system, including the government. The Law Society understands, through discussion with members of the Administrative Justice Project, that despite the imminent publication of the White Paper containing recommendations to be made by the Project concerning legislation on this topic, further meaningful consultation will be taking place after the publication of that Paper.

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 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.

III. Comments on the discussion papers recently released

1. Reviewing Original Decisions

As stated in our preliminary response, the Law Society believes a number of general propositions arise on consideration of reform of the administrative justice system. Those propositions include:

(a) The more clearly the government can make any legislation with respect to any issue of administrative justice, the better it is for all parties concerned;

(b) A "one size fits all" approach to the administrative justice reform is not advisable;

(c) Given the lack of wisdom in a "one size fits all" approach, a tribunal-by-tribunal review of the administrative justice system will ultimately be required to properly effect administrative justice reform.

The Law Society is pleased to note that in the discussion paper "Reviewing Original Decisions" recently distributed by the Administrative Justice Project, the three principles outlined in the propositions above appear to have been recognized.

The Law Society agrees that administrative tribunals and government officials make a wide range of adjudicated decisions. The complexity of subject matter dealt with by the decision maker varies a great deal. The procedure by which decisions are reached also varies significantly. As noted in the discussion paper, there is a strong public interest in ensuring that appropriate mechanisms exist to correct the inevitable errors which will occur in any decision making process.

It is crucial therefore to ensure that individuals who need to appeal or review decisions of a tribunal are able to do so in an appropriate manner.

In an earlier discussion paper examining statutory powers and procedures,1 it was stated that studies in legislative reforms from other jurisdictions:

universally reject the creation of a single, comprehensive code of tribunal powers and procedures, but they do propose a number of alternatives designed at once to enhance sound strategic thinking in tribunal legislation and ensure a proper balance between procedural fairness and effective, principled administration.

The Law Society believes that this conclusion is equally applicable to a review of the appeal procedure from administrative tribunals. There is no practical way of developing general legislation which will adequately take into account all the differences necessary in the reviewing procedures, and the complexities of decision making in the administrative justice system. The Law Society is pleased to note that this conclusion seems to have been reached in the discussion paper on this topic.

2. Appointments Policy

In its preliminary response, the Law Society stated that "the overall effectiveness of reforms to the administrative justice system ultimately depends on the appointments process." The Project's discussion paper on statutory powers and procedures noted that:

statutory powers and procedures are a means to an end; they do not decide cases. They represent a 'legislative tool kit' intended to assist administrative decision makers to carry out their statutory mandates in an effective, fair, creative, and efficient manner. In good hands, effective tools can produce outstanding work. In untrained hands, such tools may be positively dangerous.2

The Law Society said in its preliminary response that no matter what process of reform is ultimately chosen for administrative justice reform, much about how the public interest in the administration of the administrative justice system is protected will depend upon 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 appointments process has a considerable effect on the cost of the administrative justice system, and also, and very importantly, in how much respect is afforded to the system by those who use it.

The Law Society believes that the two most important aspects of how appointments policy and procedure centre around the level of independence given to the decision maker and the quality and competence of the decision maker.

(i) Independence

The Law Society recognizes that, historically, administrative tribunals and decision makers have not enjoyed the same level of independence as have the courts and judges. Often, administrative decisions require an exercise and application of policy and there has thus perhaps been some expectation that the exercise by decision makers of policy will be consistent with the policy directions of the government of the day.

The Law Society believes, however, that there have been developments in the law, particularly with respect to quasi-judicial decision making, as opposed to other types of administrative decisions, which have enhanced and supported the independence of administrative decision makers.

The independence of tribunals ought to be recognized as a key component of the administrative justice system. The nature of the independence may differ from that of courts in the overall justice system, but the Law Society recommends that the Administrative Justice Project adopt the following statements from Tribunals for Users: One System, One Service:

There should be one guiding principle. In origin, many tribunal functions started within the administrative process. Tribunals were established because it was clear that the citizen needed an independent means of challenging possible mistakes and illegalities which was faster, simpler and cheaper than recourse to the courts. Tribunals are an alternative to court, not administrative, processes. They will keep the confidence of users only in so far as they are seen to demonstrate similar qualities of independence and impartiality to the courts.

Demonstrating those qualities to the individual user in a tribunal case will require establishing that those who are to decide the case adopt a properly impartial approach to it, and have no improper links to any of the parties; that they have not been selected to decide the case because they will be more likely to come to any particular conclusion; and that they will not feel beholden to the person who appointed or selected them, or fear adverse consequences, from the result of the case.3

The Law Society believes that administrative justice reform must take into account the role of each decision making function of the administrative justice system and examine the level of independence which should be afforded to it. When that has been determined, the appropriate term and tenure for the Chairs and members of the tribunals should be determined and a set of guidelines concerning an acceptable range of terms and tenures could be established. The Law Society believes that the application of terms and tenures should be set by rules or regulations rather than leaving it to the discretion of the ministers or tribunal Chairs. In this regard, the Law Society notes another comment from Tribunals for Users: One System, One Service:

We have concluded that the only way in which users can be satisfied that tribunals are truly independent is by developing clear separation between the ministers and other authorities whose policies and decisions are tested by tribunals, and the minister who appoints and supports them.4

The Law Society therefore believes, as stated in our preliminary response with respect to the other papers issued, that a "one size fits all" approach to this topic of administrative justice reform is not advisable. Again, it is the opinion of the Law Society that a tribunal-by-tribunal review of the administrative justice tribunals and agencies will ultimately be required to properly give effect to the important issue of appointments process and policy.

The Law Society does agree with many of the considerations outlined in the appointments policy discussion paper, and particularly those from the submission of the British Columbia Council of Administrative Tribunals outlined at page 49 of the discussion paper.

(ii) Quality and Competence

In the Administrative Justice Project's discussion paper on statutory powers and procedures it was stated that:

. . .even the most enlightened legislative reform initiative will be at risk if it is not accompanied by high quality appointments and training.5

The Law Society wholeheartedly agrees with this statement. In order to function effectively, the administrative justice system requires appointees who are diligent, knowledgeable about the subject matter before them, and capable of conducting themselves with integrity. Removal from an appointment should only be brought about by misbehaviour, incapacity and (if developed) failure to comply with requirements for sittings and required training.

Many of the comments and references made to guidelines for appointments, reappointments, expectations, goals and reviews outlined starting at page 44 of the discussion paper on appointments policy are useful for this discussion and warrant full consideration by the Project in developing its White Paper on this subject.

What this discussion lacks, in the view of the Law Society, is any reference to how, or by whom, candidates for appointment are to be found or appointed. The Law Society suggests for consideration that some process be developed whereby the responsibility for appointments is made independently of departments or ministries whose decisions are to be considered and reviewed. By creating that measure of independence, users of the system will be given increased confidence that decisions made by tribunal members are independent decisions, and not in any real or imagined way tied to the appointment (or reappointment) process.

How this would be accomplished is a legitimate question. In our preliminary response, the Law Society made reference to the possibility of considering the creation of an independent "Council of Tribunals." One possibility, therefore, would be to consider investing in such a Council (if created) the responsibility of making appointments.6 This would divorce the appointment-making process from the political arena. It would create a body which could examine the needs of boards and tribunals, examine and establish the qualifications required of Chairs and members, review and consider candidates, and in a non-political manner, consider the performance of the appointee against the requirements established for the particular agency on which the appointee sits.

Conclusion

The Law Society believes that the same general conclusions can be drawn with respect to the two topics commented on in this paper (the review of original decisions and appointments policy) as were made in our preliminary response in April:

1. Reform should not be attempted by generic or omnibus legislation designed to apply to all components of the administrative justice system.

2. The reform process should include a tribunal-by-tribunal review of the work, needs, nature of expertise and subject matter of the components of the administrative justice system. Such a review is required before one can determine, for example, what the nature of review should be from original decisions made by a tribunal, or what skills and other requirements are needed for those who are to hear, and make decisions on, matters coming before a tribunal.

3. The tribunal-by-tribunal review logically must occur before legislation designed to clarify process or reform of the system is proposed.

4. The creation of a "Council of Tribunals" could undertake the proposed review, and could have an ongoing role as an independent advisory Council to government on the administrative justice system. Such a Council could also play a key role in the appointments process.

The Law Society reiterates its earlier conclusion that reform of the administrative justice system must not be done by way of a one-time separate examination of topics concerning the administrative justice system. The topics are all related. Solutions for the improvement of the system depend on addressing the topics in a synthesized manner, rather than on a topic by topic basis. The subject deserves, and in the opinion of the Law Society, requires, a process allowing for its continual review.

The Law Society appreciates the opportunity to provide its comment to the Administrative Justice Project, and looks forward to further consultation on this subject.

 


Footnotes:

1. Frank A.V. Falzon, The Statutory Powers and Procedures of Administrative Tribunals in British Columbia, A Background Paper for Administrative Justice Project, Government of British Columbia, Victoria, 2002, p (i). [Back to body of report]

2. Ibid. p. 19. [Back to body of report]

3. Sir Andrew Leggatt, Tribunals for Users: One System, One Service, Report of the Review of Tribunals, U.K., August 2001, paragraphs 2.18 - 2.19. [Back to body of report]

4. Ibid, paragraph 2.23. [Back to body of report]

5. Falzon, op. cit., p. 18. [Back to body of report]

6. The Law Society notes the similar recommendation by the British Columbia Council of Administrative Tribunals at page 15 of its response Administrative Justice in British Columbia: Ensuring Fairness and Accountability (March 2002). [Back to body of report]