CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.1 General Characteristics of Administrative Proceedings

1.1.1 The Board is a Tribunal

1.1.1.1 A True Tribunal

Under the original 1940 Act, the board was known as the "court of referees."^{4 Citation 4} In 1971 and 1996, Parliament dropped the expression "court" in favour of the term "board," which is well known in the world of labour. Be that as it may, in public law Parliament has not adopted a sacramental expression to identify what may conveniently be referred to as an administrative tribunal.^{5 Citation 5}

In public law tradition, a tribunal is defined by its function. Thus, in such major statutes as the Charter of Human Rights and Freedoms and the Act respecting the Barreau du Québec, the Quebec legislature defines a tribunal as "any organisation sitting in Quebec and there exercising a judicial or quasi-judicial jurisdiction".^{6 Citation 6} A substantial body of decisions has striven to define this expression.^{7 Citation 7} In some provinces like Ontario, tribunal has a broader meaning and applies to persons having "a statutory power of decision".^{8 Citation 8}

Since various groups of institutions are capable of performing such functions, the legislature and the case law have tended to target those that can be described as tribunals in the strongest sense of the term. In 1981, the Supreme Court stated that it was not necessary to rely solely on the facades of procedure but rather to look to the nature of the question that the tribunal must decide:

In 1995, the same Court used the expression "adjudicative functions" to describe this function.^{10 Citation 10} In 1996, the National Assembly officially enshrined this designation in the Act respecting administrative justice, in a chapter defining "the rules specific to decisions in the exercise of an adjudicative function", which speaks of "a . . . body of the administrative branch charged with settling disputes between a citizen and an administrative authority . . . "^{11 Citation 11} The Quebec legislature thus adopted the statements in the 1994 Rapport du groupe de travail concerning the reform of administrative justice:

[Translation]

The fact that the Board of Referees is not a permanent institution but a body created each time a claimant or an employer files an appeal (A. 111 Employment Insurance Act) does not deprive it of its status as an administrative tribunal that perfectly embodies the essential characteristics of the adjudicative function in the administrative branch.

The Act and the Regulations use a form of terminology that normally belongs to the adjudicative function; the terms used there include appeal, grounds of appeal, hearing, practice and procedure, testimony, parties, filing of the decision, inter alia (A. 111-114 Employment Insurance Act; R. 78-83 Employment Insurance Regulations). The Court of Appeal and the Umpire have regularly described the board as an "administrative tribunal" or even as a "judge";^{13 Citation 13} it participates in the administration of justice.^{14 Citation 14}

Some commentators have felt that the board is not a full tribunal in the sense that it has authority to make decisions concerning only the facts and not the law. The Supreme Court decision in Tétreault-Gadoury makes a distinction between the board and the Umpire for purposes of determining who may render a decision on the constitutional validity of the Act.^{15 Citation 15} In our judgment, the Supreme Court wrongly suggested that only the Umpire may decide questions of law. This would be contrary to the Act itself, which authorizes the board to rule on the right to benefits, the imposition of penalties and other subjects. Section 115 Employment Insurance Act lists the grounds of appeal to the Umpire, which presuppose that the board has already rendered a decision on questions of law: failure to observe a principle of natural justice, acting beyond its jurisdiction, an error of law in its decision and so on. To be sure, s. 117 Employment Insurance Act indicates that the Umpire "may decide any question of law or fact that is necessary for the disposition of an appeal" whereas no such indication is given with respect to the board; s. 114 Employment Insurance Act, on the other hand, states that a decision of the board "shall include a statement of the findings of the board on questions of fact material to the decision". It would be incorrect to conclude from these provisions that only the Umpire may decide questions of law. In our view, s. 117 Employment Insurance Act is not indispensable because it goes without saying that an appeal tribunal presided over by a Federal Court judge will rule on the law. Subsection 114(3) Employment Insurance Act concerns the reasons for decision, which must at the very least deal with the "questions of fact material to the decision". If the board is a true tribunal, it has a statutory jurisdiction of a public nature.^{16 Citation 16} How then can a board adequately exercise a jurisdiction that is conferred on it by law, decide a dispute concerning the right to benefits or the imposition of major penalties without having to interpret the Act and the Regulations and necessarily expressing opinions on questions of law? In Cooper, the Court had to consider a tribunal on which the Act did not expressly confer the power to examine questions of law and the role of which was "primarily and essentially a fact-finding inquiry"; it found that "in the course of such an inquiry a tribunal may indeed consider questions of law".^{17 Citation 17} Finally, as Issalys has said, [Translation] "the board's decision must be based on legal reasoning".^{18 Citation 18} A long line of authority shows that the board regularly has to interpret not only the Act and the Regulations but also other related legislation.^{19 Citation 19} It has to examine and interpret the provisions of contracts of employment or collective agreements.^{20 Citation 20} It has to render opinions on the legal classification of a transaction or an agreement.^{21 Citation 21} It must also rule on "the legal nature of an agreement or a clause in a contract".^{22 Citation 22} The board is a "tribunal of fact as well as of law".^{23 Citation 23}

Since it has the jurisdiction of a true tribunal, the board may and even must exercise this jurisdiction conferred on it, even where another tribunal such as a labour arbitration tribunal, or a civil or criminal court, hears a case dealing with the same facts.^{24 Citation 24} The rulings of these tribunals or the evidence before them are not binding on the board, even if the board can or must, as the case may be, take them into consideration.

A question of law may be defined as a question involving the interpretation and application of a statutory or regulatory provision, or a principle or judicial rule established in the case law.^{25 Citation 25} A question of fact involves the statement of the occurrence of an event, the existence of a thing or a person, as well as the statement of an opinion about them.^{26 Citation 26}

It could be argued by some that the Board of Referees is not a true tribunal because it does not have the power to summon witnesses, issue subpoenas or convict persons of contempt of court. This assumption would be wrong. These powers are part of the inherent jurisdiction of the superior courts but any other tribunal must have them conferred on it expressly by law.^{27 Citation 27} Thus, a number of administrative or quasi-judicial tribunals are not authorized to exercise this kind of power. However, the case law has recognized that such a tribunal may request the assistance of a superior court, which does have jurisdiction to summon a witness before the administrative tribunal.^{28 Citation 28}

Since it is a tribunal, the board is in some regards subject to the rule of precedent or stare decisis with regard to the judgments of the superior courts, that is the Supreme Court, the Federal Court and the Umpire; however, this does not include the decisions of the other boards.^{29 Citation 29} It is essential therefore that the board members be familiar with the decisions of the Federal Court and the Umpire.

The board is a true tribunal even though the majority of its members do not have legal training, which is common in many administrative tribunals where multidisciplinary backgrounds are the rule.^{30 Citation 30}

 

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