Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners?

I have posted a new paper to SSRN, “Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners“, a chapter in a forthcoming edited collection on Administrative Tribunals in the Common Law World. Here is the abstract:

In this Chapter, I explore the tension between two propositions in Canadian public law. On the one hand, administrative tribunals are seen as – effectively – a branch of the executive. On the other hand, the same tribunals are seen as the antithesis of executive discretion, with their members capable of playing a valuable role in the application and development of the law at arm’s length from the political branches.

In Part I, I provide a general overview of administrative tribunals in Canada, describing their infinite variety, highly variable procedures and structures and flexible appointment mechanisms.

In Part II, I describe the jurisprudence on the subordinate constitutional position of administrative tribunals. The focus here is on administrative tribunals as institutions. There is a link between Parts I and II, because the variety of administrative tribunals seems to have contributed to judicial reluctance to impose constitutional requirements of independence that might limit legislative creativity.

However, notwithstanding the reticence of the judiciary to robustly protect the independence of administrative tribunals as institutions, the importance of administrative tribunals in the Canadian legal system is nonetheless manifest. In Part III, I introduce the important legal principles that give administrative tribunals a more elevated status than the jurisprudence on their constitutional position suggests. Indeed, administrative tribunals are in many ways equal partners of courts of law in the interpretation and application of legal norms. In this Part, the focus is more on the members of administrative tribunals than on administrative tribunals qua institutions.

I will conclude by offering some critical analysis on the tension: the tension could be resolved, I argue, by granting administrative tribunals constitutional status or statutory protection for independence but it is not necessary to resolve the tension; Canadian administrative tribunals can continue to be constitutionally subordinate but equal partners to courts of law in the interpretation and application of legal norms. The position is unattractive as a matter of principle but sustainable as a matter of practice.

Download it here.

This content has been updated on September 11, 2023 at 10:11.