The Inner Morality of Administrative Adjudication

If we want to develop a morality of administrative tribunal adjudication, we need to look elsewhere than the law of judicial review, with its concern for clamping down on “bad” decision-making. Imagine instead a “good” administrative adjudicator concerned about the acceptability of their decisions to the individuals appearing before them and to Canadian society: they worry less about administrative law than administrative justice, which has been defined as “the justice inherent in decision making”[1] and “those qualities of a decision process that provide arguments for the acceptability of its decisions”.[2] A “good” administrative adjudicator is interested in tribunal excellence. I argue that the attributes of Competence, Compassion, Consistency and Collaboration  are central to achieving tribunal excellence and, taken together, represent the “inner morality” of administrative adjudication.[3]

Competence

First and foremost, adjudicators should be competent. This means that they should have relevant subject-matter expertise. Expertise can be ensured by the careful tailoring of statutory appointment criteria, which may provide that appointees must be familiar with a given area of adjudication, or that appointments are made by individuals knowledgeable of the subject matter. Equally, however, and especially in the era of tribunal ‘clustering’ it is important to point out that expertise can be acquired on the job:[4] working “day in and day out” in a particular area[5] permits the acquisition by adjudicators of “experience in the questions they consider over the course of their appointments”.[6] Ideally, moreover, this expertise would be nourished over time, by ongoing training and development.

Competence includes the ability to manage proceedings effectively – by paying attention to the principles of procedural fairness – and, I would say, independence from external or internal pressure. Adjudicative independence for administrative tribunal members is, of course, not constitutionally guaranteed in Canada[7] (at least outside of Quebec, where it has quasi-constitutional force) but it is nonetheless an important common law principle.[8] A tribunal member who is influenced in his or her decision-making by a superior in the organizational hierarchy or by some external party does not, in my view, qualify as a competent decision-maker.

This combination of substantive and procedural expertise permits adjudicators to deal with matters swiftly and efficiently, ensuring that administrative justice lives up to its ideal as an alternative to the slower and more heavy-handed judicial process.

Compassion

Second, adjudicators should be compassionate. Most people’s rights and entitlements are settled these days by administrative adjudication, not by a full-blown judicial process. The stakes of administrative adjudication are always high and will often, if not always, carry “harsh consequences” for the individual concerned.[9] Many of these are unrepresented by counsel and have had limited or no access to legal advice but nonetheless expect – I would say, legitimately – their ‘day in court’, an opportunity to state their case or, simply, tell their side of the story: “How one is treated is just as crucial as what one gets”.[10]

These realities mean, to begin with, that adjudicators should treat individuals appearing before them fairly and even-handedly, especially where one or more is unrepresented; this may even require ‘active adjudication’ to ensure that an individual is able to make his or her points on the relevant issues. Beyond this, it requires adjudicators to lend individuals a sympathetic ear, allowing them some latitude in raising matters which are not, strictly speaking, relevant to the outcome but which they nonetheless wish to express their views on. Compassion requires openness, at times, to the irrelevant. And, of course, it requires that the outcome be justified to the individuals concerned in the form of reasons for decision, oral or written.

Consistency

Third, adjudicators should be consistent: the disposition of a matter should not depend on the identity of the adjudicator but, as far as possible, on the consistent application of tribunal jurisprudence. As the majority of the Supreme Court rightly observed in Vavilov,citizens “are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker”.[11]

There are two aspects to this: an adjudicator should be faithful to his or her own previous decisions – a norm of personal stare decisis, as it were – and also to the decisions of other tribunal members. Put in stark terms, the outcome of an administrative hearing should not turn on which tribunal member turns up, or whether they are in a good or bad mood.

Consistency within a tribunal structure is important but so too is consistency with the general law of the land. This is not to suggest that administrative adjudicators should be parrots or apes, mindlessly copying or repeating the words of the superior courts, but that they should take care in borrowing concepts of common, civil or indigenous law that they use them in a way appropriate to the specialized adjudicatory domain in question. Administrative adjudicators can[12] and should put their own spin on the law of the land but also, so as not to befuddle their colleagues and those subject to their jurisdiction, explain why they did so.

It should, finally, be obvious that reasons are essential to the achievement of consistency. Whether there are statutory or other obligations to provide reasons or not, an adjudicator should provide them, for otherwise it will be impossible to live up to the demands of consistency.

Collaboration

Finally, adjudicators should be collaborative, within and across tribunals. In any given multi-member tribunal, members should work together with their fellow tribunal members to improve their work, ensure accurate decisions, safeguard their independence and learn how to treat individuals appropriately. Collaboration may take many forms: regular meetings, informal or formal voluntary peer review of draft decisions or the adoption of guidelines to aid in the resolution of matters coming before the tribunal. Collaboration may be especially important where – and I, of course, do not have any particular province in mind in making this remark – new tribunal members are appointed who do not have the requisite skill set: it will be up to their colleagues to act collaboratively to demonstrate how they can become competent adjudicators.

Tribunal members should also, as it were, reach out across the aisle to members of other tribunals in their province or further afield, learn about best practices there and mould them for the purposes of their home tribunal. Here, collaboration is likely to be more informal, by telephone or by email, or on the margins of events held by national administrative justice organizations.

Collaboration supports the other virtues. Its importance for the achievement of consistency is fairly obvious but it also furthers competence and compassion: the sharing of expertise makes for more competent adjudicators and the sharing of experiences makes for more compassionate adjudicators.

In a separate post I will address the difficult issue of maintaining and cultivating these virtues in a world of constraints.

[1] Michael Adler, “Understanding and Analyzing Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), at p. 129.

[2] Jerry Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (Yale University Press, New Haven, 1983), at pp. 24-25.

[3] Lon Fuller, The Morality of Law rev. ed. (Yale University Press, New Haven, 1969).

[4] Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), chapter 3.2.1.

[5] Mattel v. 3894207 Canada,2006 SCC 22, [2006] 1 SCR 772 at p. 794, per Binnie J.

[6] Canada (Deputy Minister for National Revenue) v. Mattel Canada,2001 SCC 36, [2001] 2 SCR 100 at p. 116, per Major J.

[7] Walter v. British Columbia, 2019 BCCA 221.

[8] Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518.

[9] Vavilov, at para. 133.

[10] Bernardo Zacka, When the State Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017), at p. 9.

[11] Vavilov, at para. 129.

[12] Nor-man

This content has been updated on April 8, 2020 at 13:33.