CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

1.1 General Characteristics of Administrative Proceedings

1.1.2 Independence and Impartiality

1.1.2.2 Impartiality

1.1.2.2.2 Institutional Aspect

It was in Lippé and Ruffo that the Supreme Court definitively determined that, like independence, impartiality included an institutional aspect. It concerns the "objective status of the tribunal" when "the system is so structured as to give rise to a reasonable apprehension of bias at the institutional level".¹⁹⁰ Institutional bias concerns the more or less close links that exist between the various parties in a particular justice system. This requires a particular examination of each organization and the role of each of the parties involved. The first case in which the principle was upheld was MacBain, where the Federal Court of Appeal found that there was a situation of institutional impartiality between the Canadian Human Rights Commission and the Human Rights Tribunal because, after conducting an investigation and finding discrimination, the Commission established the Tribunal, chose the members and argued before them.¹⁹¹

This principle was relied on later to challenge municipal courts in Quebec,¹⁹² military courts in Ottawa,¹⁹³ the Conseil de la magistrature (judicial council) in Quebec¹⁹⁴ and the Régie des permis d'alcool au Québec.¹⁹⁵ In the last of these cases the Court spoke of a confusion of roles between the regulators and the lawyers in legal services arguing before them as well as of interference by the employees of the Régie at all stages of the process leading to the withdrawal of licences. This confusion of the roles led to "excessively close relations among employees involved in various stages of the process".¹⁹⁶ In the case of the military courts, the Court found that the system "clearly and objectively creates close links of institutional dependence between the minister, . . . the commanding officer who drafts the indictment, . . . the military authority summoning the Court, appointing members and deciding on the hearing date, . . . the officer who is duty counsel and of course the accused".¹⁹⁷ In another case, however, the Quebec Court of Appeal held that, in the case of the Commission d'appel sur les lésions professionnelles [professional injuries appeal board], the legal department and the secretariat played a "role in supporting the commissioners" that did not violate institutional impartiality.¹⁹⁸

In the case of municipal courts in Quebec, the Supreme Court held that the fact that part-time judges continue to practise law does not violate the requirements of institutional impartiality.¹⁹⁹ This is analogous to the situation of members who act as representatives or lawyers in other cases before other boards. Although that may create some unease, it does not violate the principle of institutional impartiality, at least under the current jurisprudence in administrative law.²⁰⁰

The question of the relationship between the Commission and the Board of Referees is certainly delicate. Strictly speaking, the board is not a creation of the Commission: it is created by the effect of the Act (A. 111) whenever an appeal is filed (A. 114). The chairpersons are appointed by the Governor in Council and the other members by the Commission from two lists, from which the members are chosen "in rotation" (R. 78). The appointment of the members is in fact made by the Commissioner representing workers and the Commissioner representing employers but the appointment to sit on a given Board of Referees is made by the clerk, an official of the Commission, who is required to follow the lists. It is the clerk who draws up the list of cases to be heard by the Board of Referees and plans the hearings. Once appointed, the chairperson is responsible for the proceedings (R. 80(7)).

For a challenge against a Board of Referees to succeed, it would be necessary to establish that the Department or the Commission "can influence the decision-making process".²⁰¹ However, the Supreme Court held in 1995 that there was no institutional bias simply because the members of a property assessment tribunal on a Reserve were appointed and paid by the Band Council, which was a party before the tribunal.²⁰² The same idea was expressed more recently in Katz.²⁰³ Finally, it will be recalled that in 1989, the Federal Court of Appeal considered the relationship between the Employment and Immigration Commission and an adjudicator ruling on cases involving the deportation of permanent residents.²⁰⁴ The Court found that the adjudicator was an official of the Commission and was accountable to the same department as the officers presenting the cases at the adjudication, although they were not both accountable to the same directorate. Furthermore, when the adjudicators required a legal opinion, they requested one from the Adjudication Directorate, which then consulted the Legal Services Directorate; the latter unit also gave opinions to the section that included the officers responsible for pleading before the adjudicators. Officers of this section did not play a monitoring role with respect to the adjudicators; they did not report to the same superiors. As far as the allocation of cases to adjudicators was concerned, "the evidence showed that this was done rationally". Finally, there was no evidence to establish that the Director General of the Adjudication Branch violated the independence of the adjudicators who, according to the relevant directive, had to conduct inquiries "in accordance with the rules of natural justice" as "independent decision-making bodies."

Following this same line of authority in the case law, it seems to us that if we take into account all the specific characteristics of our system of justice by arbitration, boards of referees attain the necessary level of institutional impartiality. It is also necessary to take into account the well-established practice whereby assignments and decisions concerning remuneration are not made arbitrarily.²⁰⁵ Finally, the fact that the assignments are made in rotation on the basis of lists protects the board from pressures that might be exerted by the Commission.²⁰⁶ It can be said, to use the expression of the Federal Court of Appeal, that the assignments are made on a rational basis. It has been held that the system of appointing boards of referees complies with the Canadian Charter.²⁰⁷

The question of compatibility between equal representation on a board and the requirements of institutional or structural impartiality was raised in Quebec in a case involving the former parity review boards (BRP) of the C.S.S.T. and even of the current Commission des lésions professionnelles. On the one hand, we should note that the Supreme Court found in Matsqui that the representation of community interests on a board is not reprehensible in itself.²⁰⁸ On the other hand, the Superior Court of Quebec has in three decisions upheld equal representation in terms of the requirements of independence and impartiality. [Translation] "Both the membership of the BRPs, which are organizations with equal representation and the way in which they choose their members are consistent with the desire that those affected by the Act should be responsible for its implementation."²⁰⁹ We consider that this statement could also apply to boards of referees under our Act.

An Umpire recently ruled that the mere fact that members are employees and union members [Translation] "cannot be held against such a parity committee." ²¹⁰

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