Alternative Dispute Resolution in Public Law: Some Thoughts

Blogging has been slow recently, as you have doubtless noticed. We are coming up to the end of term here in Montreal, so the administrative load has been heavier than usual, and I have also completed a report for a government department on the functioning of an administrative agency (about which I will have much more to say in a few weeks). Regular service should soon resume.

One of the questions I have been pondering is the role of alternative dispute resolution in public law. A news report on a recent speech by the Lord Chief Justice of England and Wales provided further material for reflection. In the speech, Lord Thomas of Cwmgiedd commented on the challenges faced by the common law in an era of private dispute resolution:

[6] As is well known, the development of the law in England and Wales was effected not only through cases where the claims were brought in the courts, but through claims that were brought in arbitrations. In 1979 (by statute) and 1981 (by Lords Denning and Diplock through an interpretation of that statute), the relationship between the courts and arbitration was changed on the perceived basis that it was damaging the attractiveness of London as a centre for dispute resolution through arbitration. The change has been hailed as a “pragmatic compromise”, but the clear consequence that can be seen today is that far fewer developments of the law are made in areas where the probability is that the case has had to begin in arbitration. As arbitration clauses are widespread in some sectors of economic activity, there has been a serious impediment to the development of the common law by the courts in the UK…

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[23] [T]here are other issues which arise from the resolution of disputes firmly behind closed doors – retarding public understanding of the law, and public debate over its application. A series of decisions in the courts may expose issues that call for Parliamentary scrutiny and legislative revision. A series of similar decisions in arbitral proceedings will not do so, and those issues may then carry on being taken account of in future arbitrations. As has been put: “Arbitration confidentiality perpetuates public ignorance of continuing hazards, systemic problems, or public needs”. Such lack of openness equally denudes the ability of individuals, and lawyers apart from the few who are instructed in arbitrations, to access the law, to understand how it has been interpreted and applied. It reduces the degree of certainty in the law that comes through the provision of authoritative decisions of the court. As such it reduces individuals’ ability to fully understand their rights and obligations, and to properly plan their affairs accordingly.

It is also worth bearing in mind the comments of the Supreme Court of Canada, regarding the need for more supple judicial procedures, that private dispute resolution procedures are not a panacea, for “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined” (Hryniak v. Mauldin, [2014] 1 SCR 87, at para. 26).

Similar concerns arise in the area of public law, perhaps with greater force. To begin with, where public power is being exercised, its exercise ought in principle to be public and open to scrutiny by politicians, lawyers, the media, civil society and members of the community: “open justice is a fundamental aspect of a democratic society” (Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 SCR 522, at para. 81). Regulatory power ought to be exercised in a way that is justifiable, intelligible and transparent (Dunsmuir v. New Brunswick, [2008] 1 SCR 190, at para. 47). Moreover, judicial applications of the principles of administrative law to particular factual settings can give guidance to officials on how they ought to exercise their powers. Anecdotally, I have heard complaints that some institutions which do not wish their dirty linen to be aired in judicial review proceedings push applicants into settlement proceedings which would not have the effect of laying down general rules of conduct.

Accordingly, there is good reason to hesitate before extending alternative dispute resolution procedures to the administrative setting. It is notable in this regard that the Competition Tribunal’s consent orders regime is public (Competition Tribunal Rules, SOR/94-290, ss 76-96) and that agreements of the parties may not simply be rubber-stamped by the Tribunal (Canada (Director of Investigation and Research) v. Palm Dairies Limited (1986), 12 CPR (3d) 540). Similarly, in Johnson v. Canada (Minister of Citizenship and Immigration), 2005 FC 1262, at para. 14, Dawson J. noted the need for a “cogent reason, other than their consent, for setting aside a decision of a tribunal“.

Caution needs to be exercised with measures such as arbitration, mediation and negotiation, especially where organs of the state are involved. If administrative tribunals are to take steps to foster alternative dispute resolution, these steps should be taken publicly, subjected to informed debate and carefully scrutinized by members of the legal and wider communities.

This content has been updated on April 1, 2016 at 09:34.