CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.1 General Characteristics of Administrative Proceedings

1.1.2 Independence and Impartiality

It is a tradition of public law that all tribunals must be independent and impartial. This is one of the principles of natural justice which the Canadian Charter incorporates into s. 7 Section 7 of the Canadian Charter with the words "principles of fundamental justice", and it is also included in s. 2(e) of the Canadian Bill of Rights   Section 2(e) of the Canadian Bill of Rights, when it refers to a fair hearing "in accordance with the principles of fundamental justice". Many decisions have been rendered concerning these provisions and under s. 23 of the Quebec Charter   Section 23 of the Quebec Charter, which is to the same effect. Other provisions such as s. 11(d) of the Canadian Charter   Section 11(d) of the Canadian Charterand s. 2(f) of the Canadian Bill of Rights   Section 2(f) of the Canadian Bill of Rightsalso contain this dual requirement. Whatever the source may be, the Supreme Court and the Federal Court in the final analysis feel that this dual requirement applying to all federal administrative tribunals has a genuine constitutional basis.^{87 Citation 87}

Although the two concepts are closely related,^{88 Citation 88} they differ in that they reflect "separate and distinct values or requirements".^{89 Citation 89} However, they both aim at the attainment of a single objective: that justice be done in an objective and disinterested manner. Furthermore, public law has always required that not only is it of fundamental importance that justice be done "but should manifestly and undoubtedly be seen to be done".^{90 Citation 90} In the case of both independence and impartiality, the reality is just as important as the appearance: it is also a question of impressions^{91 Citation 91} and of perception.^{92 Citation 92}

To assess the degree or level of independence and impartiality required for justice to be done, the case law relies on the judgment "of a well informed person who has examined the question in detail realistically and practically".^{93 Citation 93} This person must be reasonable,^{94 Citation 94} and the fear raised with respect to partiality must itself be reasonable in the circumstances.^{95 Citation 95}

Finally, the requirements of independence and impartiality are not applied uniformly and unequivocally to all tribunals regardless.^{96 Citation 96} These requirements may vary. In the case of administrative tribunals what is necessary, according to the Supreme Court, is "more flexibility".^{97 Citation 97} Thus, the level of institutional independence required "will depend on the nature of the tribunal, the interests involved and other indicia of independence".^{98 Citation 98} The same is true of a reasonable apprehension of bias: "in the case of administrative tribunals much greater flexibility should be shown".^{99 Citation 99} The Supreme Court feels that "it has long been admitted that the rules of natural justice do not have a fixed content without regard to the nature of the tribunal and the institutional constraints under which it operates".^{100 Citation 100} Finally, the Court has stated that the conditions of this independence and impartiality "must take the operational context into account" as well as "knowledge of the operational reality . . . ".^{101 Citation 101}

 

[ previous Previous page  | table of contents  | next Next page  ]