CHAPTER 1
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ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS
1.1 General Characteristics of Administrative Proceedings
1.1.2 Independence and Impartiality
1.1.2.1 Independence
1.1.2.1.2 Individual Independence
Individual independence involves being free from all outside interference:
the core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider - be it government, pressure group, individual or even another judge - should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.103 Citation 103
A judge or arbitrator must be sheltered from all undue pressure, both internal and external, that would prevent him or her from making a conscientious decision. This might involve institutional or systemic pressure, as the Supreme Court noted in Consolidated Bathurst and Tremblay. In both those cases the Court considered the decision-making process of administrative tribunals of a collegial nature. The consultation mechanism, the intervention of a third party or of the tribunal's legal advisers must not "constitute undue influence such that it deprives them [the decision makers] of their intellectual independence and gives rise to a feeling in the parties that their case will be decided by someone other than the judges and for unknown reasons".104 Citation 104 This does not mean that they are not subject to all kinds of influences like any other individual: "the test of independence is not a lack of influence, but rather the freedom to decide in accordance with their conscience and opinions".105 Citation 105
To maintain the impression of independence that a judge or arbitrator must convey, "professional principles must be observed".106 Citation 106 These principles vary in accordance with whether law courts, administrative tribunals, arbitrators or others are involved.
In our system, the Regulations provide expressly that the chairperson of a board may, at any time prior to the decision of the board, "refer any question arising in relation to a claim for benefits to the Commission for investigation and report" (R. 82). In itself, this report must not have the effect of limiting the decision-making independence of the board members. Naturally, this report is different from the "representations" referred to in R. 83(1), which all the parties, including the Commission, are entitled to make.
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