CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.1 General Characteristics of Administrative Proceedings

1.1.3 An Accessible, Informal, Effective Procedure

1.1.3.1 Speed and Efficiency

The slowness of justice, about which complaints have often been made, has many causes: time limits for remedies, overcrowding of hearing schedules, cumbersome processes, adjournments and delays, counsel not available and so on. What is the situation in the case of boards of referees?

The Act provides that an appeal must be brought within 30 days of the date on which the decision is communicated to the appellant. However, s. 114 Section 114 of the Act provides that the Commission may extend this time "in any particular case for special reasons". The Commission's decision on this request for an extension may itself be appealed to the Board of Referees.

The Federal Court of Appeal has ruled on several occasions that the Board of Referees cannot purely and simply substitute its opinion for that of the Commission. The discretionary power has been conferred on the Commission,^{215 Citation 215} although it must exercise this power judiciously; the Court uses the expression "judiciairement." The Commission must not have acted "under the influence of irrelevant considerations or without taking relevant factors into account".^{216 Citation 216} The Court refers to the test for abuse of discretionary power set out in the traditional authorities: "It is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been there, might have exercised it otherwise."^{217 Citation 217}

Once the appeal has been validly filed at the Commission office, whether or not it is accompanied by a request for a hearing, the process quickly takes its course. The Manual (c. 13) gives precise instructions to the clerk for drawing up the hearing schedule: "it must above all be ensured that the appeal is heard as soon as possible"; 90 percent of appeals should be heard within 30 days of the date of their receipt.

With a few exceptions, a period of 60 minutes is scheduled at each hearing and following this time the board will deliberate and render its decision.

It may accordingly be felt that everything is in place for the board to do justice quickly and efficiently, even though incidents do occur such as requests for adjournment, problems in obtaining a quorum and requests for telephone hearings. The statement made about the Umpire in s. A. 113 Section 113 of the Act, "all appeals shall be dealt with by the Umpire as informally and expeditiously as the circumstances and fairness will permit", could also be applied to the board. Moreover, the case law is to the same effect: "The provisions of the legislation concerning appeals seem to envisage a hearing that proceeds quickly and without formality . . ."^{218 Citation 218} Accordingly, the fact that the chairperson cuts short redundant debate does not create a breach of natural justice in and of itself.^{219 Citation 219}

 

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