Tribunal Competence and Expertise

Here is my blog post on the doctrinal law relating to tribunal competence and expertise for the Tribunal Watch Ontario/Windsor Law webinar on independence and impartiality.

Here is what Tribunal Watch Ontario’s Statement of Principles says

Adjudicators must be optimally competent and the tribunal equally competent in the exercise of its mandate. Adjudicators must have dispute resolution skills, subject matter expertise, and experience in decision writing.

Commentary

An important reason for having specialist adjudicative tribunals in place of generalist courts is that disputes in designated areas of law are resolved by adjudicators with competence and expertise in that area of law, together with expert knowledge of the context and legal landscape.

Candidates for appointment to the tribunal must be able to demonstrate either relevant subject-matter expertise or dispute-resolution expertise, and, ideally, both. Tribunals are obliged to commit to ongoing training and professional development, and their budgets must reflect this.

While it is expected that adjudicators will have a commitment to public service, it must be recognized that adjudication is a profession.To attract the most competent adjudicators, compensation must be competitive, training must be comprehensive, and reappointment decisions must be predictable and merit-based. To build an enduring community of professional adjudicators, the tribunals and the tribunal justice system must have the resources, reputation and inclusiveness to be an attractive part-time or full-time option for professionals at all stages of their careers.

The Statement of Principles makes a useful distinction between subject-matter expertise and competence and dispute-resolution expertise and competence. Both are vital. In many regulatory regimes, competence in dispute resolution – finding ways to ensure a matter comes to a conclusion satisfactory to all concerned – is at least as important as subject-matter expertise.

With this distinction in mind, I will analyze the Canadian black-letter law on expertise and competence. From a doctrinal perspective, the law sometimes requires expertise and competence in these areas – mostly through the demands of the common law – and generally facilitates the development of expertise and competence.

Requirements of Expertise and Competence

Legislation

Occasionally, legislation provides directly or indirectly for what might loosely be described as expertise and competence requirements.

Directly, the Canadian Environmental Protection Act requires that review officers (appointed to the Environmental Protection Tribunal of Canada, of which I am a part-time member) are “knowledgeable about the conservation and protection of the Canadian environment, environmental and human health, administrative law as it relates to environmental regulation or traditional aboriginal ecological knowledge” (1999, SC 1999, c 33, s. 247). But as the Federal Court has noted on a couple of occasions, this provision mandates knowledge but not expertise: Canada (Minister of the Environment) v. Custom Environmental Services Ltd., 2008 FC 615, at paras. 21-22; Canada v. Atlantic Industrial Services, 2014 FC 775, at paras. 25-26, 29.

Indirectly, the Competition Tribunal Act provides for an advisory panel composed of people “knowledgeable in economics, industry, commerce or public affairs and may include, without restricting the generality of the foregoing, individuals chosen from business communities, the legal community, consumer groups and labour” (RSC 1985, c 19 (2nd Supp), s. 3(3)). But, of course, this is very much an indirect way of ensuring knowledge.

Another strategy is employed in the Adjudicative Tribunals Accountability, Governance and Appointments Act. Adjudicative tribunals must develop a “member accountability framework” which contains, amongst other things, “a description of the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed as a member of the tribunal” (2009, SO 2009, c 33, Sch 5, s. 7(2)(b)).

I use the word “loosely” advisedly. Nothing in these provisions guarantees substantive subject-matter expertise or competence, as opposed to general knowledge of an area of public administration. Moreover, there is no clear reference in these provisions to competence in dispute resolution.

Common Law

Historically, the expertise of tribunal members relative to courts was a key component of the standard of review analysis, playing an important role in determining whether deference is appropriate. Expertise was, however, quite fluid: the concept always had an ‘I’ll know it when I see it’ quality: see Lorne Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Difference?” (2003) 27 Advocates‘ Quarterly 478.

With the Supreme Court of Canada’s reformulation of administrative law in Vavilov, however, the conceptual fluidity has been reduced. The Supreme Court abandoned expertise as a factor in determining the standard of review and, in formulating a reasons-first approach to reasonableness review noted that a decision-maker may “demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear” (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 93). What matters now is whether the reasons for decision adequately justify the outcome, not whether the decision-maker has expertise in some general or metaphysical sense. Accordingly, the contemporary common law of substantive review requires that subject-matter expertise and competence must be demonstrated by tribunal reasons. Outputs matter more than inputs.

Whereas Vavilovian reasonableness review requires tribunals to demonstrate subject-matter expertise and competence in their reasons, the common law of procedural fairness 

requires that the outputs of tribunal decision-making process demonstrate the application of dispute-resolution expertise and competence. Tribunal members must run fair hearings, giving individuals a “fair crack of the whip” (Fairmount Investments Ltd v Secretary of State for the Environment, [1976] 2 All ER 865, 874 per Lord Russell of Killowen). Tribunals are masters of their own procedure, but only as long as they respect the rules of fairness (Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 SCR 560, at pp.568-569). Here, again, outputs matter more than inputs: if a decision-maker has failed to live up to the requirements of procedural fairness, statutory references to expertise will not save their decisions.

In terms of requiring expertise and competence, therefore, it is thus fair to say that the common law is more influential than statute.

Facilitating Expertise and Competence

Statutes and the common law provide floors, not ceilings. Tribunal appointment processes, training for new members and continuing professional development can go over and above – sometimes far over and far above – the requirements of expertise and competence (see, for example, the Immigration and Refugee Board’s recent Quality Assurance Framework).

Statutes provide no bar to the acquisition of further expertise and competence. Indeed, they facilitate it. Expertise and competence can be acquired on the job. Working regularly in a particular area permits the acquisition by adjudicators of “experience in the questions they consider over the course of their appointments” (Canada (Deputy Minister for National Revenue) v. Mattel Canada,2001 SCC 36, [2001] 2 SCR 100 at p. 116, per Major J). This is especially true of expertise and competence as it relates to dispute resolution, where the ability to bring matters to a conclusion satisfactory to all concerned is very much an acquired skill.

Nor does the common law erect barriers to developing tribunal expertise and competence. Indeed, the flexible approach Canadian courts have taken to adjudicative independence allows tribunals to foster internal dialogue and discussion (Iwa v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282). As long as tribunal members are not directed to adjudicate in a particular way by a hierarchical superior, tribunals can put in place processes for dialogue, discussion and even internal review – in order to foster expertise and competence – without breaching the requirements of the common law (see, a contrario, Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518).

Conclusion

From a doctrinal perspective, tribunal expertise and competence are important: statute and (especially) the common law require and facilitate the development of expertise and competence. Many of the objectives of the Statement of Principles can thus be achieved by administrative tribunals within the existing framework of black-letter law. In terms of compensation and reappointment, however, as discussed in my previous post, the current state of the law on tribunal independence means that political reform is necessary to improve the situation. More attention could also be paid to enshrining requirements of expertise and competence in statute. As such, the Statement of Principles and Tribunal Watch Ontario’s work, are a valuable contribution to public discourse.

Read the other contributions, by Michael Gottheil, Lori Mishibinijima, and Marion Overholt here.

This content has been updated on October 21, 2021 at 21:40.