Tribunals and Administrative Agencies Quiz

Administrative Law - Fall 2024

• Administrative law is part of domestic public law
• It provides legal limitations on governmental officials
• It sets out remedies for those dealing with transgressors
• Administrative law establishes rules for the lawmakers
• It concerns the lawful authority of officials to act, potential illegality and actionable wrongs

Natural Justice

• Duty of fairness + duty to be fair + procedural fairness = all synonyms
• Contains historical context relevant to delegation function
• Two central tenets:
  • Audi Alteram Partem: (hear both sides) a person must know the case against them and have opportunity to respond
  • Nemo Judex In Sua Causa Debet Esse: (rule against bias) impartial decision-makers base decisions only on relevant evidence presented
• Rules of National Justice consider all aspects of notice, discussion, case against, and opportunity to answer.

Administrative Agencies

• Government bodies (federal, provincial, territorial) established by statutes to administer specific statutory regimes
• Governing/enabling legislation defines agency's authority
• Agencies cannot act outside their statutory authority (e.g., landlord-tenant board cannot decide human rights issues)
• Constitutional Act, 1867, divides powers by Section 91 (Federal) and 92 (Provincial) regarding agency creation. Federal agencies deal with federal/national and territorial issues; Provincial agencies deal with provincial/local issues.

Three Branches of Government

• Legislative & judicial branches have remained relatively unchanged.
• Executive branch structure has changed considerably, with Cabinet as the key decision-making body.
• Departments (headed by ministers) have main authority over portfolios and still exercise power
• Administrative agencies (boards & commissions) now handle many functions that were previously carried out by departments.
• These are often seen as a "4th branch" of government

Traditional Role and Structure of Executive Branch (EB)

• Two key elements:
  • Accountability of ministers (publicly to legislature).
  • Insulation of civil servants from political influence.
• EB structured with a central department (ministries) each headed by a cabinet minister (federal or provincial) responsible to the legislature for policies and implementation. "Responsible government" means ministers are accountable to the legislature and public for their department's actions.

Civil Servants

• Civil servants carry out department work and are largely insulated from political pressure via mechanisms (e.g., reporting to another civil servant, independent hiring/firing commissions).
• Independent commissions govern civil servant hiring, remuneration, promotion, dismissal, and practices in accordance to legislation.
• Civil service system prioritizes competence and expertise over political connections.
• Tenure security allows civil servants to speak truth to power.

Development of Administrative Agencies

• Increased demands on government, with societal changes in diversity and complexity, led to administrative agencies.
• Simple structures became more complex to respond to social, economic, and technological developments.
• Big world events(WWI, WWII, etc.) required governments to have increased involvement in regulating the economy and influencing social/cultural issues.

First Administrative Agencies in Canada

• Canada (1851): Board of Railway Commissioners.
• British Columbia (1921): Workman's compensation board (BC first administrative agency.)
• Growth of Canadian society, complexity, and diversity, alongside technological advances, spurred development of special-purpose agencies to address emerging problems.

10 Categories of Ontario Agencies

• Advisory Agencies: provide advice for program development (no decision making).
• Operational Service Agencies: deliver goods/services to the public (often at low cost).
• Operational Enterprises: provide goods/services commercially – can compete with private sector or have monopoly.
• Regulatory Agencies: make independent decisions regarding conduct, practice, obligations, rights, and responses for individuals, businesses, or corporations.
• Adjudicative Agencies (Tribunals): similar to courts, resolving disputes over rights, obligations, etc.
• Crown Foundations: solicit, manage, distribute donations to public organizations.
• Trust Agencies: manage funds and assets for beneficiaries.
• Non-Scheduled Agencies: watchdog bodies, ombudsmans, etc.
• Royal Commissions/Inquiries: investigate specific issues and make recommendations.

Reasons for Governmental Creation of Administrative Bodies

• Demonstrate independence: Decisions are seen as separate from political influence.
• Decrease size/workload/budget: Outside agency can manage functions and reduce department burden.
• Decrease conflicts of interest: Agency responsibilities can reduce conflict risks in departments.
• Flexibility in HR: Employment practices, salaries, benefits, tenure, and other requirements, are more flexible for independent bodies.
• Provide expertise: Agencies can hire specialists with needed expertise in particular subject matters.

Why Governments Delegate to Administrative Agencies

• Review: Mechanism for reviewing decisions made by government decision-makers, with appeal option to Tribunal. Resolves disputes between two or more individuals/groups (not only government).
• Resolving issues: resolving disputes between individuals/groups, decisions that significantly affect persons/society (informal process).
• Consequences: Decisions that have impact on a person/society require more formal approach (often handled by Tribunals, rather than informal decision-makers).

Advantages of Tribunals over Courts

• Peers/Expertise: Members can be peers/experts in the specific subject area.
• Interest Groups: Representation for interest groups.
• Structure Advantages: Often more informal, more accessible, flexible processes, and quicker procedures, with less formal requirements that may not require lawyers.

Similarities Between Tribunals and Courts

• Limits to informality: Tribunals are not entirely informal, statutes set rules for procedure
• Fairness: Follow rules regarding fairness, which involves aspects like notice, disclosure, evidence presentation, witness questioning, etc.
• Common Judicial Principles: similar principles guiding the processes of tribunals and courts, (e.g., a neutral decision-maker).

Substantive and Style Differences Between Courts and Tribunals

• Substantive Differences: Requirements to follow previous decisions, acceptable evidence, disclosure, roles of staff and parties, and requirement to follow adversarial process.
• Style Differences: Identification of decision-makers, seating, ceremonial trappings, swearing oaths.

Similarities and Differences Between Tribunal Members and Judges

• Similarities: impartiality, responsibility/scope of decision making powers.
• Differences: Tribunal members are potentially subject to appointment/dismissal at any time by the government, and tribunal members have more flexibility in activities/associations compared to judges.

Administrative Agencies (A,B,Cs)

• Traditional methods challenged, with concern about balance of accountability and independence
• Separate heads & members from legislative assemblies, civil service.
• Civil servants not always subject to the same accountability mechanisms, thus reducing political influence.
• Patronage process reform.
• Traditional function carried out by different agencies.

Multipurpose Agencies

• Organizations with several overlapping functions, guided by rules to ensure fairness during all functions.
• These bodies deal with distinct areas such as law (e.g., regulatory bodies) dealing with professional conduct/investigations.

Procedural Fairness Measures

• Legislative functions, setting behaviour standards.
• Investigation or inquiry procedures
• Considerations for a fair outcome

Two Key Requirements for Fairness

• Separation of agency functions (investigators, prosecutors, and adjudicators are distinct individuals) necessary when an agency is tasked with multiple functions.
• Ensure fairness by having unbiased, impartial decision-makers who are independent and neutral.

No Delegation of Authority

• Adjudicators cannot delegate decision making to prosecutors or other individuals.

How to Do This (Administrative Agency Structure)

• Internal structure & barriers are put in place to moderate/minimize negative impact of conflicting functions.
• Stages are implemented to facilitate investigations, including mediation and hearing.
• Separation of functions from each other is critical to ensure fairness and impartiality of decision-making.

Administrative Tribunals in ABC

• Agencies required by statute/common law to follow procedures similar to court processes.
• They make decisions in special areas, between individuals/companies, and government (e.g., rights/entitlements.)
• Usually a more formal court-like process is used.

Continuum of Decision Making

• Range from informal, closed-door processes to more formal, adversarial processes (e.g., in a court-like environment).

Quasi-Judicial Tribunals

• Tribunals hear disputes between parties in disputes with government officials.
• Tribunals generally follow a more formal process.

Tribunal Decisions

• Tribunals often uphold rights, benefits, or privileges, enforcing rules to ensure fairness (rules discussed in related chapters).
• Often follow two principles of natural justice.

Place of Tribunals in Government Structure

• Tribunals are part of the executive branch but perform judicial-like functions (making decisions about rights, money etc.).
• The legitimacy of Tribunals are not questioned due to their integral role in government systems.

Independent Parties (VS. TOO/NOT INDEPENDENT)

• Tribunals may be considered not sensitive enough to government policy, or too bureaucratic
• Some fear that political appointment of tribunal members might make them too subject to political interference or less independent from the body appointing them leading to unfair hearing.

Source and Scope of Agency Powers

• Tribunals function under enabling legislation & statutes from the relevant jurisdiction, that define their purposes and duties.
• Supplemented by common law, which sets the requirements for procedural fairness.
• Additional powers are allowed if needed.

Agencies Continued

• Agencies may be mandated to perform multiple functions (e.g., investigating, regulating, or setting policy)
• Agencies are divided into sections/separate bodies; each performs a specific function. This is done to ensure impartiality.

Adjudication (as applied to Tribunals)

• Decision making process involves considering evidence and arguments, and applying relevant law.
• In adversarial systems, adjudicators typically act passively, but can be more active in collecting/evaluating evidence.
• Tribunals may not have an adversarial system, however they use a separate procedure(inquisitorial).
• This system involves the tribunal actively pursuing the needed evidence, similar to investigations.

Adversarial v. Inquisitorial Systems

• Adversarial systems require opposing parties present evidence.
• Inquisitorial systems include active participation by the tribunal in seeking evidence.
• Ontario tribunals use an adversarial system based on statutes.
• Assumes that parties have equal access to resources & information, and there is no significant power imbalance.