V. Conclusions 231

are viewed as extensions of the government of the day; is it enhanced where a tribunal is representative—that is, the demographic makeup of members and staff reflects the com-munity 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 admin-istrative 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 fol-lowing 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 arm’s 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 un-equal 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 bal-ancing 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 in-creasingly 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 tribunal’s database of prior decisions. The logic of fairness, however, is that it must be

232 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, how-ever, not only includes being able to understand, navigate, and participate in a tribunal’s 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 decision-makers are appointed under a competitive merit-based process and whether decision- makers are able to access appropriate training and education (because substantive expertise in sub-ject 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 jus-tice and to show how integrated such questions are with the broader principles of adminis-trative 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 oper-ate. The many implications of this new focus on access to administrative justice remain to be elaborated.

S U G G E S T E D A D D I T I O N A L R E A D I N G S

B O O K S

Bass, J., W.A. Bogart, & F.H. Zemans, eds., Access to Justic for a New Century: The Way For-ward (Toronto: Irwin, 2005).

Trebilcock, M., A. Duggan, & L. Sossin, Middle Income Access to Justice (Toronto: University of Toronto Press, 2012).

C A S E S

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.

233

C H A P T E R E I G H T

Caught Between Judicial Paradigms and the Administrative State’s

Pastiche: “Tribunal” Independence, Impartiality, and Bias

LAVERNE JACOBS*Faculty of Law, University of Windsor

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 II. Sources of the Guarantee of an Independent and Impartial Tribunal . . . . . . . . 234 III. What Is “Tribunal Independence” and Why Is It Important? . . . . . . . . . . . . . . . 237 IV. The Development of the Law of Tribunal Independence in Canada . . . . . . . . . 239

A. Laying the Groundwork: The Theory of Judicial Independence . . . . . . . . . 240B. From Judicial Independence to Tribunal Independence . . . . . . . . . . . . . . . . 242

1. Ocean Port Hotel and Keen: Parliamentary Supremacy Versus Warding Off Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

C. Reasserting the Push for Independence: Unwritten Constitutional Principles, Tribunal Independence, and the Rule of Law . . . . . . . . . . . . . . . 252

D. The Appointment and Removal Process: Institutions, Ideologies, and Institutional Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

V. Reasonable Apprehension of Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255A. The Rule Against Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255B. The Reasonable Apprehension of Bias Test . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

1. Perceptions of Individual Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2582. Perceptions of Institutional Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276Suggested Additional Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276

Chapter Eight Caught Between Judicial Paradigms and the Administrative State’s Pastiche: “Tribunal” Independence, Impartiality, and Bias . . . . . . . . . . . . . 233Laverne JacobsI. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234II. Sources of the Guarantee of an Independent and Impartial Tribunal . . . . . . . . . . 234III. What Is “Tribunal Independence” and Why Is It Important? . . . . . . . . . . . . . . . . 237IV. The Development of the Law of Tribunal Independence in Canada . . . . . . . . . . . 239

A. Laying the Groundwork: The Theory of Judicial Independence . . . . . . . . . 240B. From Judicial Independence to Tribunal Independence . . . . . . . . . . . . . . . . 242

1. Ocean Port Hotel and Keen: Parliamentary Supremacy Versus Warding Off Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

C. Reasserting the Push for Independence: Unwritten Constitutional Principles, Tribunal Independence, and the Rule of Law . . . . . . . . . . . . . . . 252

D. The Appointment and Removal Process: Institutions, Ideologies, and Institutional Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

V. Reasonable Apprehension of Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255A. The Rule Against Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255B. The Reasonable Apprehension of Bias Test . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

1. Perceptions of Individual Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2582. Perceptions of Institutional Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276Suggested Additional Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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.

234 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, al-though this relationship is discussed in greater detail below. Put simply, independence, im-partiality, 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 public’s confidence in the administration of justice. Most cer-tainly, 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, re-gardless 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 percep-tion 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 mind—that 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 achiev-ing impartiality. For example, by ensuring through legislation that an administrative tri-bunal 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 ad-ministrative 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 and Impartial 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 Pless’s Chapter 12, The Charter and Admin-istrative 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 pro-tect 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 expres-sions 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: Re-thinking the Theory After Bell and Ocean Port Hotel—A 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 Éditions Thémis, 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), ap-peal 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.

236 Chapter 8 “Tribunal” Independence, Impartiality, and Bias

Statute Section(s) Guarantee provided

Canadian Charter of Rights and Freedoms

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 and Freedoms

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 and Freedoms6

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 Rights8 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

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

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 out-side the context of courts.9 And while s. 23 of the Quebec Charter seems all-encompassing

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 individual’s rights and obligations, this seemingly low threshold is el-evated 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 body’s 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 apprehen-sion 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 compet-ing 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 “tri-

bunal” 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.

238 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 ten-sions 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 ex-ample, 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 mem-bers.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 government’s policies, one can easily see how mem-bers 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 tribunal—for 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 Resi-dential 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 Ontario’s 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 juris-dictions 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 “in-dependence,” we are referring to the tribunal’s ability to decide matters free of inappropriate interference or influence. The executive branch of government may be one source of inter-ference in the administrative law context, but several other sources—for example, litigants, other tribunal members, and staff—may 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 admin-istrative 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 re-view 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 law’s understandings of independence and impartial-ity 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 insti-tutional practices used to promote consistency and policy making, employed in the multi-functional 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 de-veloped through a series of three waves. The first wave of jurisprudence used the independ-ence 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 decision-making process as a party—for example, in citizen – state contexts such as immigration, radio broadcasting, or social benefits litigation—sometimes also contributes to rendering complex the question of what consti-tutes relevant or irrelevant considerations.

17 Supra note 3.

240 Chapter 8 “Tribunal” Independence, Impartiality, and Bias

litigants once again pushed to have judicial declarations that administrative tribunal in-dependence 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 over-view 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 constitu-tional 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. Can-ada, 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 outsider—be it government, pressure group, individual or even another judge—should 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 in-dependence from government (the first of the outside interferences noted by Dickson C.J.), three objective structural conditions have been identified as necessary to guarantee in-dependence: security of tenure, financial security, and administrative (or institutional) control. These three conditions serve to reassure the public that the possibility of interfer-ence 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 gov-ernment to remove a judge for such things as rendering decisions that do not meet the government’s approval. As a result, the condition that a judge’s 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 Green’s 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 Ju-

dicial 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 pre-specified 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 arbi-trary 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 13th-century 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 adminis-tered—from budgetary allocations for buildings and equipment to the assignment of cases. It addresses how responsibility for such administration should be divided between the judi-ciary 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 govern-ment 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 terri-torial 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; Conférence des juges du Québec 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 Deschênes and Carl Baar, Masters in Their Own House (Ottawa: Can-adian 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).

242 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 insti-tutional as opposed to individual. Although there may be implications that affect an indi-vidual 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 independence—that is, independence from interference in deliberations, commonly known as adjudicative in-dependence. Referenced briefly in the Supreme Court’s decision in Beauregard,29 the con-cept 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 another’s deci-sion for one’s 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 independ-ence is one guarantee of independence that is frequently called into question in the admin-istrative state, especially as a result of institutional practices used to develop policy and consistency. We examine adjudicative independence in greater detail when we discuss insti-tutional 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 in-terference with the decision-making process is enough to engender a loss of public confi-dence 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 decision-makers are in a position to make decisions impartially. Similarly, the independence of ad-ministrative 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 safe-guards (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 in-dependence. 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 Band35 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 tri-bunal 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 tribunal’s 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 in-dependent 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. Généreux, [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, deci-sion on appeal; as regards s. 23 of the Quebec Charter, see 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919 [Régie], 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 par-tially 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 substan-tial 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.

244 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 deci-sions. While all the judges who addressed the issue agreed with the theoretical approach set out by Lamer C.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 Québec Inc. v. Quebec (Régie des permis d’alcool),38 a case argued under s. 23 of the Quebec Charter. In Régie, it was held that the directors of Quebec’s 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, how-ever, is that adjudicators face the possibility of being simply dismissed at the pleasure of the executive branch of government. The fixed-term appointments in Régie were acceptable because they provided expressly that the decision-makers (called “directors” in Régie) 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 director’s term of office. The respondent in Régie also challenged the board’s administrative control. It argued that there were so many points of contact between the liquor board and the minister responsible for the board’s enabling legislation that the board’s 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 flex-ibility 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 Régie, 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 dir-ectors 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 meas-ures 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 control—as a court. Perhaps the best judicial attempt to explain normatively why the objective guarantees of judicial independ-ence need not apply to administrative tribunals comes from the Supreme Court of Canada’s 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 particu-lar, 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 ad-ministrative 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, ap-pointments 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” appoint-ments, 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 arm’s 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 interfer-ence 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 tri-bunals. 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. OceanPortHotelandKeen:ParliamentarySupremacyVersusWardingOffInterference

a. Ocean Port Hotel

In its narrowest sense, the Supreme Court of Canada decision in Ocean Port Hotel is signifi-cant because it attempted to lay to rest the controversial issue of whether “at pleasure” ap-pointments 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].