Administrative Tribunal Independence: Model Legislation

For many years, Dr Ron Ellis has been Canada’s leading expert on and advocate for administrative tribunal independence, which (outside Quebec) is the poor relation of the common law of procedural fairness.

Dr Ellis has now drafted model legislation on tribunal independence. 

As he describes it:

The Model Act is intended to be the mainstay of an administrative justice system comprised of adjudicative tribunals that are demonstrably expert, optimally competent and inclusive, implicitly independent, and admired on all sides for the impartiality and quality of their decisions, and for the accessibility, fairness, fitness, proportionality, and timeliness of their process.

The Act defines “adjudicative tribunal” and “tribunal” to mean:

an entity or individual person that is not designated as a “court” or “judge” but is authorized by an Ontario statute to exercise an adjudicative function that would otherwise be exercised by a court.

The Act requires the selection of candidates for appointment as tribunal members or chairs to be based on qualifications-driven, competitive assessments by expert panels free of partisan or patronage influences, and projected term-renewals of incumbent members and chairs to be conditional solely on continued good performance, judged objectively.

At the system’s centre, the Act installs a non-partisan, independent “Administrative Justice Council” with guaranteed funding, whose Board of Governors is structured to ensure both the Council’s independence and its expertise. 

The Council’s ten Board of Governor member positions are comprised of two positions reserved for retired judges selected by the government, two positions reserved for senior tribunal adjudicators selected by SOAR, one public-interest position reserved for a person selected by the government, one labour position reserved for a person with senior labour-movement experience selected by the OFL, one employer position reserved for a person selected by the Chamber of Commerce, one clinic position reserved for a person with senior experience in the community legal services clinic system selected by ACLCO, one position reserved for a lawyer selected by the OBA, and one position reserved for an academic, expert in administrative law, proposed by the Chair and approved by at least six of the other members. 

The Act reserves the Chair position for a person proposed by the government and approved by at least 7 of the Board members in a secret ballot.

The appointments to the Board of Governor’s positions are for fixed, renewable terms.

The Council is positioned as the system’s supervisor with the ultimate say in term-renewal decisions, as a principal advisor to the government on administrative justice issues, and as the system’s inspector general, with extensive investigative powers and the responsibility for reporting to the public concerning persistent systemic problems. 

The Act is structured as pre-eminent, quasi-constitutional legislation applicable to all adjudicative tribunals established by current or future statutes, subject only to explicit statutory overrides, with inspection and reporting powers that survive such overrides.

I strongly advise reading the post and the draft legislation.

See further Tribunal Watch Ontario (of which I am a member of the Advisory Council).

This content has been updated on October 21, 2021 at 21:08.