CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.1 General Characteristics of Administrative Proceedings

1.1.2 Independence and Impartiality

1.1.2.1 Independence

1.1.2.1.2 Institutional Independence

Institutional independence is "a question of status" based on "objective conditions or guarantees".^{107 Citation 107} The case law has set out "three essential conditions of independence": these are security of tenure, financial security and institutional independence; however, these conditions "may be applied with flexibility and they are likely to be met by various legislative schemes and formulas".^{108 Citation 108} These requirements will vary according to whether the tribunal is permanent and whether its members are professional judges.

In Valente, the Court defined security of tenure as follows: "the office is free from all discretionary or arbitrary interference by the Executive or the authority responsible for making appointments".^{109 Citation 109} The office itself may be held for an indefinite term until the person reaches the age of retirement, for a fixed term or ad hoc. It seems necessary therefore for the judge to be appointed during good conduct, for a fixed term or for a specific task. In Généreux,^{110 Citation 110} the Supreme Court held that military Judges Acting from time to time as court martial judges must enjoy security of tenure that protects them "from interference by the Executive for a fixed period of time".

As far as the renewal of terms is concerned, the Court has rarely mentioned it, with the exception of Justice Stevenson in Généreux. He noted the danger that judges in the process of having their terms renewed might seek to "please the Executive", but he sided with the majority which refused to institutionalize military judgeships.^{111 Citation 111} Courts of appeal have not been very demanding on the issue of the length of the mandates, renewal and even the lack of a procedure governing removal for cause.^{112 Citation 112}

Security of tenure means primarily and essentially "that a judge may be removed only for cause related to the capacity to perform judicial functions . . . for cause and that cause be subject to independent review and determination at which the judge affected is afforded a full opportunity to be heard".^{113 Citation 113} The Supreme Court felt that tradition was not sufficient to guarantee such protection; it must be provided for by statute. In Alex Couture, the Quebec Court of Appeal confirmed that the law provided that reasons must be given for dismissal but did not expressly provide for the holding of a prior hearing in accordance with the requirements in Valente. Nevertheless, it maintained that the rules of natural justice and s. 69 of the Judges Act   Section 69 of the Judges Actsatisfactorily made up for this lack of specific provisions: [Translation] "the Governor in Council . . . would be required to adopt a fair procedure providing an opportunity for the interested party to obtain a hearing".^{114 Citation 114} More recently the Court has stated that "the minimum conditions of independence do not require that all administrative judges, like the judges in courts of law, have security of tenure in the office they hold. Frequent mandates for a fixed term are acceptable . . . ", but it went on to say: "However, the removal of adjudicators must not simply be at the pleasure of the Executive."^{115 Citation 115}

In the Act, which we are considering, the status of the chairpersons of the boards is set out in s. 111 Section 111 of the Act: a three-year renewable mandate and removal for cause. This seems to us to meet the constitutional requirements. The situation of the members is different. The Act does not give any guarantee in case of removal or refusal to renew a mandate. Recent cases have not been very demanding in this regard, noting that if a member of the tribunal is the subject of an arbitrary decision, he or she may always complain to the common law courts.^{116 Citation 116} Up to now, the system of appointing and paying the chairperson and the members has been found to be in accordance with the principles of natural justice.^{117 Citation 117}

According to Valente, the essence of financial security "is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive".^{118 Citation 118} The Supreme Court finds it theoretically preferable for salaries to be set by the legislative branch and to be paid out of the Consolidated Revenue Fund, but they may be left to the initiative of the Executive. The essential thing is that the right to remuneration is provided for in the Act and that "in no way may the Executive impinge upon this right in such a way as to affect the independence of a judge individually or collectively".^{119 Citation 119} However, for the judges of the ordinary courts the Court ruled that the law must provide for an independent commission to determine the remuneration of the judges, and its recommendations would for all intents and purposes be binding on Parliament.^{120 Citation 120} Although there is nothing to indicate that this requirement applies to administrative tribunals, the Federal Court recently held that "the principles in the Judges' Case. . . may be applied and adapted to the circumstances of administrative tribunals".^{121 Citation 121} Refusing to follow the opinion of Chief Justice Lawer in Matsqui Indian Band concerning the by-laws of the Indian Band fixing the remuneration for members of its administrative tribunal, the Court stated that the remuneration of members of the Human Rights Tribunal was controlled by the Human Rights Commission, even if the Commission's by-law has to be approved by Treasury Board.^{122 Citation 122} That position is in contradiction with the attitude of the Quebec Court of Appeal which has validated an enactment analogous to s. 111 par. 4 of the Act   Section 111 par. 4 of the Actproviding that the remuneration of chairmen and members is such as "Treasury Board approves".^{123 Citation 123} We believe that position to be in conformity with the real nature of administrative tribunals.

The question of performance appraisal or the performance of judges by the Executive has been considered in several cases. It is inadmissible because it is inconsistent with judicial independence in the case of judges to the extent that it directly influences the remuneration or renewals of mandates or removals.^{124 Citation 124} However, it is permitted in the case of administrative tribunals.^{125 Citation 125}

In Valente, the Court spoke of a third ingredient, namely institutional independence with respect to administrative questions which have a direct effect on the exercise of the judicial functions,^{126 Citation 126} and the Court distinguished between what is desirable, namely the acquisition of greater administrative autonomy or independence, and what is essential. These essential aspects of institutional independence "must be limited to those referred to by Chief Justice Howland", according to the Court: "They may be summed up as potential control over the administrative decisions that bear directly and immediately on the exercise of the judicial function."^{127 Citation 127} Chief Justice Howland described these questions as follows: "assignment of judges, sittings of the court and court lists as well as the related matters of allocation of courtrooms and direction of the administrative staff employed in carrying out these functions."^{128 Citation 128} The Chief Justice was dealing with ordinary courts of justice, not with tribunals.

In Généreux, the Court noted that the principle of institutional independence "requires that the General Court Martial be free from external interference with respect to matters that relate directly to the tribunal's judicial functions". Military courts must be "as much as possible protected from interference by members of the military hierarchy", that is from the Executive and the Department of Defence. Thus, it is not consistent with institutional independence for one and the same representative of the Executive to summon the court and "to appoint both the prosecutor and the triers of fact".^{129 Citation 129} Here again, it was a question of a court martial and not a tribunal.

In Bisson, the Superior Court of Quebec ruled in 1993 that the government must provide judges with [Translation] "all the human, financial and material resources necessary for them to perform their judicial functions". Besides courtrooms and the registry, the Court assumed "that a parking space at or near the law courts constitutes a security measure and an administrative support necessary for the performance of the judicial function".^{130 Citation 130} Here again, it was a question of a court of justice.

In the case of administrative tribunals, the question of funding for their operations has been considered on two occasions. The Quebec Court of Appeal held that although the C.A.L.P. was funded by the C.S.S.T., the tribunal's budget was submitted to the government for approval so that the C.S.S.T. had no control over the sums paid: [Translation] "there is therefore no risk of conflict between the pecuniary interests of the commissioners (C.A.L.P.) and the parties appearing before them (C.S.S.T., etc.)".^{131 Citation 130}

Section 111(4) of the Act   Section 111(4)states that there shall be paid "such other expenses in connection with the operation of a Board of Referees as the Treasury Board approves"; no other provision deals with the material and financial aspects of the boards' operations. In this context, we could give the same answer as the British Columbia Court of Appeal gave in Katz: there may be nothing in the Act or the Regulations concerning administrative control, "but the evidence does not suggest any interference in the process by the board . . . ".^{132 Citation 132} The Federal Court touched briefly on this issue in the recent Human Rights Tribunal case.^{133 Citation 133} The Court held that it was satisfied with the autonomy of the Tribunal, which since 1997 has been under the authority of the Tribunal Panel, an independent government agency separate from the Commission. The registry staff has no relationship with the Commission.^{134 Citation 134}

 

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