Administrative Tribunals: Adversarial, Inquisitorial, Regulatory and/or Mediative
An administrative tribunal can have adversarial, inquisitorial, regulatory or mediative functions, or any mix of these four.
Sometimes a tribunal is adversarial, with two parties pitted against each other. The classic example in Canadian law is the labour relations tribunal, featuring employers on one side and employees on the other. Another familiar example is the human rights tribunal, entities that have the authority to hear and determine claims of discrimination. In both of these instances, a government actor might be a party, as government is sometimes an employer and sometimes alleged to have engaged in discriminatory conduct. But the essence of the tribunal’s role is to independently and impartially adjudicate a dispute between two parties. The Supreme Court of Canada has described adversarial tribunals in the following terms, by reference to the Canadian Human Rights Tribunal:
The main function of the Canadian Human Rights Tribunal is adjudicative. It conducts formal hearings into complaints that have been referred to it by the Commission. It has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court. The parties before the Tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaint.[1]
Other tribunals are better described as inquisitorial, with an adjudicator eliciting evidence from a party in order to make an informed judgement about the party’s status. The classic example here is provided by the first-instance decision-makers at the Immigration and Refugee Board, which have the authority to make determinations about refugee and immigration status. As has been explained, “[t]he role of members of the Refugee Division at a hearing is characterized as inquisitorial since they not only hear the evidence which is presented before them but must also inform themselves sufficiently about the applicants and the conditions in their country of origin”.[2] The Chair of the Immigration and Refugee Board has exercised his statutory authority to issue guidelines about the conduct of first-instance refugee hearings and has explained the inquisitorial nature of the process in unequivocal terms:
[Refugee adjudicators] may inquire into anything they consider relevant to establishing whether a claim is well-founded. This means that they define what issues must be resolved in order for them to render a decision. A member’s role is different from the role of a judge. A judge’s primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. Case law has clearly established that the RPD has control of its own procedures. The RPD decides and gives directions as to how a hearing is to proceed. The members have to be actively involved to make the RPD’s inquiry process work properly.[3]
Indeed, refugee adjudicators are empowered to seek out evidence to ensure a fair determination of a refugee claim.[4] Simply put, the adjudicator has “the task of probing the legitimacy of claims”.[5]
Still other tribunals can be characterized as regulatory in character. The most obvious examples come from various fields of economic regulation, where prices or rates are fixed, for instance the energy, telecommunications and agricultural sectors. Regulatory tribunals – labelled “administrative boards” – have been described as follows by the Supreme Court of Canada:
Hospital and medical boards regulate the methods and practice of the doctors that bring us into this world. Boards regulate the licensing and the operation of morticians who are concerned with our mortal remains. Marketing boards regulate the farm products we eat; transport boards regulate the means and flow of our travel; energy boards control the price and distribution of the forms of energy we use; planning boards and city councils regulate the location and types of buildings in which we live and work. In Canada, boards are a way of life. Boards and the functions they fulfil are legion. Some boards will have a function that is investigative, prosecutorial and adjudicative. It is only boards with these three powers that can be expected to regulate adequately complex or monopolistic industries that supply essential services.[6]
Regulatory tribunals will often have a mixture of functions, some purely regulatory and some inquisitorial or adjudicative. The Canadian Nuclear Safety Commission, for instance, determines on application by a regulated entity and having heard from staff and interested parties on whether licenses should be granted, and also adjudicates on the imposition of administrative monetary penalties for breaches of licence conditions or regulatory requirements.[7] Similarly, the Canadian Radio-television and Telecommunications Commission has rate-setting jurisdiction but may also adjudicate disputes between regulated entities.[8]
Lastly, some tribunals are mediative, in the sense that their role is to avoid the adjudication of disputes. The leading example is British Columbia’s Civil Resolution Tribunal. Originally envisaged as a “voluntary tribunal”,[9] successive “waves” of legislative reform have created an extensive online dispute resolution jurisdiction.[10] The “mandate” of the CRT is set out in s. 2 of the Civil Resolution Tribunal Act:
(2) The mandate of the tribunal is to provide dispute resolution services in relation to matters that are within its authority, in a manner that
(a) is accessible, speedy, economical, informal and flexible,
(b) applies principles of law and fairness, and recognizes any relationships between parties to a dispute that will likely continue after the tribunal proceeding is concluded,
(c) uses electronic communication tools to facilitate resolution of disputes brought to the tribunal, and
(d) accommodates, so far as the tribunal considers reasonably practicable, the diversity of circumstances of the persons using the services of the tribunal.[11]
As the highlighted portions indicate, the legislature desired to achieve effective and efficient dispute resolution. As the inaugural Chair of the CRT stated, this innovative body:
…provides a template for how transformation and innovation can occur in a public justice context. The CRT model goes beyond incremental measures, such as simply changing forms or allowing online filing. Rather, it inverts the traditional public justice process model by assuming that disputes can be resolved consensually, with the right assistance and expertise.[12]
In brief, the CRT’s online Solution Explorer allows individuals to determine whether they have a justiciable dispute within the CRT’s jurisdiction. The next stage offers the parties an opportunity for negotiation; if these efforts fail to bear fruit, an expert facilitator is appointed and can use a variety of communications methods to lead the parties to a consensual settlement. If settlement cannot be achieved, the matter is prepared (with the ongoing assistance of the expert facilitator) for a tribunal hearing.[13]
The CRT is just the clearest manifestation of the access-to-justice zeitgeist in Canadian administrative law.[14] Many, if not most, administrative tribunals now offer alternative dispute resolution services, to avoid having to adjudicate matters. Of course, there is never anything new under the sun. Despite the apparent novelty of alternative dispute resolution, mediative approaches have long been adopted in the area of supply management for agricultural products. In Canada, government intervention in the area of agriculture is pronounced, with prices for a variety of dairy, meat and vegetables set by official agencies. In some instances, statute provides that prices shall be negotiated between industry stakeholders.[15]
[1] Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884, at para. 23.
[2] Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 FC 741 (TD), at p. 757.
[3] Immigration and Refugee Board, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (December, 2006; Amended December, 2012), §§2.1, 2.2.
[4] Immigration and Refugee Board, Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings (September, 2008; Amended December, 2012).
[5] Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 FCR 385, at para. 35.
[6] Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623, at pp. 634-635.
[8] See e.g. Broadcasting Decision CRTC 2023-22, Complaint by Bell Media against Videotron alleging undue disadvantage and preference regarding the distribution of VRAK and Z.
[9] British Columbia, Hansard, 39th Parl, 4th Sess, 8 May 2012 at 11686 (Hon S Bond).
[10] Daly et al, A Comparative Analysis of Online Dispute Resolution (International Legal Aid Group, 2019), at p. 64.
[11] SBC 2012, c 25.
[12] Shannon Salter, “Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal” (2017) 34 Windsor Yearbook of Access to Justice 112, at p. 123.
[13] Ibid., at pp. 120-121; Daly et al, A Comparative Analysis of Online Dispute Resolution (International Legal Aid Group, 2019), at pp. 72-78.
[14] Access to Civil & Family Justice: A Roadmap for Change (Ottawa, October, 2013), at p. 2.
[15] See e.g. R.R.O. 1990, Reg. 402: Chickens – Marketing, art. 17.
This content has been updated on June 26, 2023 at 12:39.