The information on this page is the sole opinion of the author and does not constitute a legal opinion. If you need legal information contact a lawyer.
- have no oversight,
- are not required to follow case law from appeals courts, divisional court or superior court
- are not required to follow decisions of other tribunal members.
- can use their own interpretations on rules in the Act they are charged with adjudicating
- are adjudicated by experts in the field, not judges
- preside over hearings, not courts
- members are not bound by the Judges rules of conduct
To be effective and to be treated as credible adjudicative bodies, administrative tribunals must be accountable. They must be accountable to the legislature and the government for fulfilling their mandate in an objective and impartial manner. They must also be accountable to the Canadians who are affected by their decisions.
Judith McCormack has said that “accountability relates to being able to identify what a decision is, who made it, why it was made, who influenced it, and who will be affected by it”12 Courts play an essential role in ensuring the accountability of administrative tribunals by safeguarding the general right to procedural fairness. Through judicial review, the courts ensure that parties are provided with the opportunity to know the case to be met, have the right to respond and are guaranteed that the decision will be made by an unbiased adjudicator.(See Ref 1 below) Administrative tribunals operate in public view, individuals affected by the decision receive notice of the hearing and are afforded the opportunity to make representations, usually by way of an oral hearing. Decisions, including the evidence and the reasons on which they are based, are available to the public and are frequently in writing.13
The provision of written reasons has many benefits. The Supreme Court of Canada in Baker, while recognizing the possible expense and delay involved, confirmed that reasons foster better and more transparent decision making, they are a tremendous asset on appeal and, importantly, they allow those affected by the decision to understand how the adjudicator reached the result.14 Despite the extensive discussion on this issue in the administrative law context, there has been little direction as to when the duty of procedural fairness requires a tribunal to provide written reasons. 15 However, the Supreme Court of Canada has recently provided some guidance on this issue in the criminal context.
In R. v. Sheppard, the Supreme Court of Canada set out a number of propositions relating to appellate intervention in a criminal case based on insufficient reasons.16 Such principles while not directly applicable to the administrative law context, still provide compelling rationales which could obligate an administrative tribunal which is adjudicative in nature to provide reasons for their decision. Ten propositions were outlined in the Sheppard case, I would like to focus on five of them.
The first proposition in favour of the reasoned decisions is that the delivery of reasons is inherent in a judge’s role as a decision-maker. As such, reasons constitute part of his or her accountability for the discharge of the responsibilities of the office and of the duty which she or he owes to the public at large.
The second proposition rests on whether the functional need to know has been met. Reasons for a decision may be important to clarify how the result was reached.
The third, fifth and ninth propositions relate to an individual’s ability to appeal. A reasoned decision of a tribunal can be useful to a party who has a statutory right of appeal from that decision. Reasons assist the parties in considering a potential appeal or judicial review. Further, reasons provide for more meaningful appellate review as they help in ascertaining the correctness of the tribunals decision. As in the criminal context, non-existent reasons with respect to findings of credibility may provide adequate grounds for appeal in the administrative law context.
In the Sheppard decision, Justice Binnie emphasized that the requirement of a reasoned decision should be “given a functional and purposeful interpretation.”17 Therefore not every deficiency in the reasons will provide a ground for appeal. The obligation to provide reasons will vary depending on the nature of the administrative tribunal, the nature of the decision before it and its enabling statute. Ultimately, as Justice Binnie concluded, “what is sought is an intelligible pathway through his reasons to his conclusion.”18
The Courts play an essential role in the accountability of administrative tribunals.19 The open processes and the transparency of decision-making which have been structured through judicial review is the primary source of day-to-day accountability of administrative tribunals. Through judicial review, the courts have been able to assist administrative agencies in fulfilling their function as instruments of justice by protecting the rights of individuals who come before them. Judicial review has imposed a transparency of procedure, fairness and impartiality on the functioning of administrative agencies, permitting them to establish credibility in the eyes of the public. Public acceptance of and support for their decisions are secured by the principles of natural justice which assures public knowledge of how the decision was made and why the conclusion was reached. Enhancing such openness encourages and fosters the legitimacy of our administrative justice system by allowing tribunals to engage in independent decision-making based upon established and discernable principles of law.
Introduction – What is Case Law?
The law in Canada is made of two parts: Case law and Legislation. Both are primary sources for Canadian law.
- Case law is made up of the written decisions of judges in court cases and tribunals. Case law comes from all levels of courts in Canada.
- In the common law in Canada, judges must follow the principle of stare decisis, which requires that judges follow the previous rulings (i.e. precedents) of other judges in higher courts in their province or territory and the Supreme Court of Canada on the same issue. Decisions from the same level of court or other provinces or jurisdictions may assist judges in reaching a decision. The body of case law is comprised of these decisions.
- Leading cases are those decisions that have been cited and followed in subsequent cases. In Canada decisions of the Supreme Court are binding on all other Canadian courts unless distinguished.
- The use of stare decisis and precedent in Canadian law promotes the principle that the law should be applied consistently throughout Canadian Courts.
- Prior to 1949, Canadian Supreme Court decisions could be appealed to the Judicial Committee of the Privy Council (J.C.P.C.) in the United Kingdom, and decisions from J.C.P.C. up until 1949 can still be binding on all Canadian courts.
- Case law from other Commonwealth jurisdictions can also have persuasive authority, particularly those from the English House of Lords or Court of Appeal, and the Australian High Court.
- Decisions from non-Commonwealth jurisdictions may also have persuasive authority depending on the level of court of the decision, the reputation of the judge and the jurisdiction involved, decisions from the United States Supreme Court are one example.
- Administrative tribunals are not courts of law in the strict sense, and the doctrine of stare decisis does not apply to their decisions. These decisions can, however, be reviewed by the courts.
It appears from this last line that Administrative Tribunals are not required to acknowledge Case Law. They are free to create their own brand of justice and there is no oversight to keep the Tribunals in line.. This means that the Law in Canada is really made up of three parts where Administrative Tribunals are involved,
- Opinions of an Administrative Tribunal,
- Legislation and
- Case Law.
Should the decision of an Administrative Tribunal be appealed to Divisional Court then the Judge is required to follow Case Law.
This implies that to get justice according to Case Law from a Tribunal Hearing, two steps are required.
- Bring your case before the LTB,
- Appeal it to Divisional Court (Costly Endeavour)
Failure to follow the law of the law of the land can only lead to undermine the integrity of the Board and the confidence of the public in Tribunal Justice
Ref 1 : From Luis Dos Santos v Green Acre RV Park – Order_SWT-68358-14
I do not ﬁnd that the evidence presented at the hearing supports this view.
The Applicant referred to the trailer as a “park model‘ and did not provide
evidence of any additions to the trailer itself that rendered the structure as
permanent, beyond the removal of the trailers immediate capacity to be moved.
This Tribunal Member is supposed to be an expert in this field, but has no clue what a comprises a Park Model Trailer. How can we accept a decision from such an EXPERT?