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Administrative Justice: Independence and
Responsibility — Towards a Common Regime
for Independent Adjudicators
France Houle, Pierre Issalys, Pierre Noreau and Martine
Valois*
1. INTRODUCTION
The following is a summary of the findings and recommendations published
by the authors in February, 2014, as the outcome of a four-year research project
dealing with independent administrative adjudicators in Qu´ebec.1 The project was
funded by the Fondation du Barreau du Qu´ebec, the Conf´erence des juges adminis-
tratifs du Qu´ebec, the Association des juges administratifs de la Commission des
l´esions professionnelles and the Canadian Council of Administrative Tribunals.
The process of appointing public office-holders sometimes referred to as “ad-
ministrative judges” periodically comes up for comment and questioning among
the public and in the media. Such adjudicators are to be found in a number of pub-
lic agencies set up either to regulate some sector of the economy or to rule, as part
of the administrative justice process, over individual entitlements or obligations
under a wide range of Qu´ebec statutes. Because the work of these agencies is more
or less closely akin to that of a court of justice, they are often loosely described as
belonging to the class of “administrative tribunals”. Only some of these agencies,
however, come within the statutory description of “bodies of the administrative
branch charged with settling disputes between a citizen and an administrative au-
thority”, i.e. “bodies exercising adjudicative functions” in the narrow sense.2
The authors’ research looks at the environment in which these agencies and
their members deliver administrative justice. The analysis focuses on the status of
administrative adjudicators and brings out a number of issues relating to the pro-
cess by which they are appointed or reappointed. Among the matters surveyed are
the following. In what context, following what procedure and under what criteria
are adjudicators appointed? Does this appointment regime have due regard for the
requirements of independence and impartiality associated with adjudication? Does
it conform to the standards of transparency that are nowadays commonly expected
of public institutions? Does it lead to appointments being made on the basis of
*France Houle, Pierre Noreau and Martine Valois are Professors at the Facult´e de droit
de l’Universit´e de Montr´eal; Pierre Issalys is Professor at the Facult´e de droit de
l’Universit´e Laval.
1La justice administrative : entre ind´ependance et responsabilit´e. Jalons pour la cr´ea-
tion d’un r´egime commun des d´ecideurs administratifs ind´ependants, Cowansville,
´
Editions Yvon Blais, 2014.
2Public Administration Act, CQLR c. A-6.01, s. 5; An Act respecting Administrative
Justice, CQLR c. J-3, s. 9.
220 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
competence, experience, and personal abilities? What are the effects of this ap-
pointment regime on the manner in which adjudicators carry out their functions on
a day-to-day basis? How does this regime compare with the rules governing the
appointment of similar adjudicators elsewhere in Canada? Is the process for ap-
pointing administrative adjudicators in need of rationalization? If so, what are the
available options?
The first part of the study includes a discussion of the statutes and regulations
currently governing the appointment of adjudicators and the performance of their
duties. The second part presents the results of interviews conducted with adminis-
trative adjudicators; this provides some empirical evidence of the effects of the cur-
rent regime on the day-to-day performance of their functions by adjudicators and
the agencies to which they belong. The third and last part develops a set of recom-
mendations aimed at strengthening the independence of administrative
adjudicators.
2. THE INSTITUTIONAL CONTEXT OF ADJUDICATION:
ENVIRONMENT AND REQUIREMENTS
The study extends to the members of fifteen agencies loosely described as
“administrative tribunals”. Agencies brought under this generic term, however, dis-
play wide differences in jurisdiction, form of activity and origin. Some carry out
administrative functions, including functions related to economic regulation. Others
carry out adjudicative functions in the narrow sense, i.e. the hearing of proceedings
against a decision of some minister or agency. Yet others combine these two types
of functions. In all cases, however, what is involved in these functions is individu-
alized decision-making. Such decision-making is therefore the core activity com-
mon to all fifteen agencies. Thus members of these agencies may be characterized
as independent administrative adjudicators:
• Their function consists in making individual decisions in respect of a citi-
zen, pursuant to norms or standards prescribed by law; they are therefore
adjudicators in the broad sense of that term.
• They are part of an administrative agency, i.e. an entity that itself forms
part of the executive branch of Government, but stands apart from the
departmental structure to which it is linked; they are therefore administra-
tive adjudicators.
• Neither adjudicators nor the agency to which they belong are normally
subordinate to any hierarchical authority; further, adjudicators personally
exercise decision-making power, and may not devolve it onto subordi-
nates; these two features combined set them as independent administra-
tive adjudicators.
The specific object of the study is to examine to what extent existing rules and
practices guarantee the independence inherent in the function of such adjudicators.
By its very nature, adjudication implies that some distance is maintained in
relation to persons or entities involved in a matter about which the adjudicator is
called upon to make a decision. In the field in which most of these fifteen agencies
operate, one of the entities directly involved will often be some legal agent belong-
ing to the executive branch of Government. In order to satisfy the requirements of
impartiality in the exercise of individualized decision-making, administrative adju-
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 221
dicators should enjoy an appropriate degree of independence in relation to the rest
of the executive branch.
This need for independence in administrative adjudication is not easily met,
for it has to manage with the tension between two imperatives, both grounded in a
constitutional principle. On the one hand, one must regard the requirements of ac-
countability derived from the principle of responsible government. On the other,
inherent in the rule of law, stands out the duty of independence attaching to anyone
who is called upon to determine the rights or interests of others on the basis of law.
Obviously, tension between these two principles is in no way specific to Qu´ebec; it
may be found at the center of administrative adjudication in many other legal sys-
tems. Each system manages it differently, consistent with the overarching concepts
of public law in that system. Thus, the first part of the study aims at establishing
what foundations, requirements and possible limits apply in respect of the indepen-
dence of administrative adjudicators in the legal context of Qu´ebec.
The study thereby seeks to bring out what factors of general relevance bear on
the appropriate balance to be achieved between responsible government and inde-
pendent adjudication in the case of independent administrative adjudicators in
Qu´ebec.
As far as the independence of courts of justice is concerned, legal doctrine, as
set out in case-law and learned writing, distinguishes between the individual and
the institutional dimensions of independence. Individual independence refers to a
state of mind and describes a decision-maker’s ability to determine an issue without
being influenced by any external pressure. Such ability is part and parcel of the
implied “contract for justice” between a judge and a party coming before him. In-
stitutional independence refers instead to the nature of relationships existing be-
tween a judicial body and other seats of social or political power. As regards rela-
tionships within Government, institutional independence requires that the Judiciary
be sheltered from interference by the Legislative or the Executive. Therein lies the
most salient element of the principle of separation of powers.
Judicial independence as a principle, and more specifically the applicability of
the principle to “administrative tribunals” (whatever is brought within that descrip-
tion), have been over the last quarter of a century the subject of much discussion in
the legal literature. These writings reflect the abundance and sophistication of the
case-law since the Valente3 case in 1985. Thanks to these developments in the law,
the contents of the principle of judicial independence, as well as its role as a pre-
condition to the impartial delivery of justice, now attract a large degree of consen-
sus, as any survey of doctrinal writings will make apparent. Further, it is now clear
that independence as a principle also has validity for at least some “administrative
tribunals”. However, the case-law does not allow for a precise determination of the
scope and consequences of extending the principle to such tribunals; this is a matter
that only legislation can settle. But then, current Qu´ebec legislation does not pro-
vide comprehensive and precise treatment of the matter as regards independent ad-
3R. v. Valente (No. 2), 1985 CarswellOnt 948, 1985 CarswellOnt 129, (sub nom. Valente
v. R.) [1985] 2 S.C.R. 673, 52 O.R. (2d) 779, 23 C.C.C. (3d) 193, 49 C.R. (3d) 97, 24
D.L.R. (4th) 161, 37 M.V.R. 9, 19 C.R.R. 354, (sub nom. Valente c. R.) [1986] D.L.Q.
85, 64 N.R. 1, 14 O.A.C. 79, [1985] S.C.J. No. 77 (S.C.C.).
222 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
ministrative adjudicators. Yet, the matter needs to be addressed adequately in order
to preserve public confidence in the quality of decisions made by adjudicators. Pre-
serving public confidence is particularly important whenever citizens have to defer
to an independent administrative adjudicator for the determination of their rights
and interests in the context of a dispute with some Government entity: such an
adjudicator must indeed be independent, both in terms of his personal outlook and
in terms of institutional relationships involving the agency to whom he belongs.
Structurally, the devolution of activities and decision-making powers on non-
departmental agencies tends to favour the independence of decision-makers. How-
ever, the principle of the government’s responsibility before the National Assembly
inevitably acts as a counterweight to the autonomy conferred on such decision-
makers and agencies. Indeed, the principle requires, in order that the government
may be held responsible, that the Cabinet or individual ministers exercise some
measure of control over agency activity, even when such activity consists in adjudi-
cation. The government must have the ability to account for the proper working of
agencies, which in turn requires that agencies be accountable before the responsible
minister. In order that channels of supervision and accountability not hamper un-
duly the independence of agencies, they must be carefully designed and spelled out
in precise terms.
While in a number of instances, the Legislature’s intent has been on minimiz-
ing the scope of supervisory powers given to the government, especially as regards
individualized decisions of agencies, several powers associated with the executive
function are liable to disturb the appropriate balance to be kept between the respec-
tive requirements of independent adjudication and of responsible government. An
illustration of this is the power to select, appoint, and remove independent adminis-
trative adjudicators.
In the search for appropriate balance between the independence required by
the functions of administrative adjudicators, on the one hand, and the government’s
responsibility before the National Assembly, on the other, one is confronted with
the classic issue of the relationship between law and policy in the context of action
by public authorities. This search for balance also brings out contemporary tensions
permeating the management of public action. Quite frequently nowadays, conflict-
ing views are advocated in this regard: an approach based on regulation through
law is set against a managerial approach, derived from market-related practices and
focused on operational concerns. As a consequence, the achievement of measurable
outcomes and the insistence on tight management of Government resources may
well collide with a view of individualized adjudication as a highly specific activity,
characterized by independence of the adjudicators. Indeed, fully integrating inde-
pendent administrative adjudication into the general business of the supervising de-
partment would rapidly reduce adjudication to a mere instrument of departmental
policy. This would disrupt the balance between independent adjudication and re-
sponsible government. Such pitfalls can only be guarded against through promoting
and protecting adjudicator and agency independence.
3. SOME GENERAL FINDINGS
A number of features clearly stand out from the general profile of the fifteen
agencies covered by the study. For all of them, individualized adjudication ac-
counts for the major or predominant part of agency activity, if not for the totality of
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 223
such activity. In all cases also, the government or a minister have been granted
statutory authority enabling them to influence, in a general way, the manner in
which adjudicators carry out their functions. For instance, the government or the
responsible minister have regulation-making powers, or at least powers of approval
over regulations, in matters that affect adjudicators; they have direct or indirect
control over the budget made available to adjudicators; and of course they select
and appoint adjudicators, as will be described later. While the study does indicate
that the supervisory powers exercised through the departmental structure do not
allow the government to intervene in a specific case, at a more global level the
independence of administrative adjudicators may be at risk.
Further, the study shows clearly that Qu´ebec, unlike some other provinces,
approaches the matter of selecting and appointing independent administrative adju-
dicators without the benefit of a single, unified statutory framework based on prin-
ciples of general application. The present state of the legislation makes it difficult
to formulate findings that would apply across the board to all agencies comprised
of independent adjudicators. This, of course, is no reason to abstain from defining
common requirements, especially with a view to ensuring the independence of indi-
vidualized adjudication, and inducing thereby some rationalization of that part of
our administrative justice system. In-depth analysis of the missions and functions
of the various agencies involved would assist in defining permanently the features
of any agency charged with making individualized decisions through independent
adjudicators.
4. THE LACK OF UNIFORMITY IN THE STATUS OF
ADJUDICATORS
The researchers conducted a detailed survey of legal rules governing the status
of independent administrative adjudicators. Part of this legal status is defined by the
enabling statute of the agency to which they belong. Generally speaking, it is to
that statute, together with complementary rules, not all of them of a legal nature,
that one should look to for specification of the following matters: the number and
qualifications of adjudicators, criteria and procedure for selecting and appointing
adjudicators, remuneration and conditions of employment, the direction and distri-
bution of work within the agency, ethical standards for adjudicators, lines of au-
thority within the agency, the length of term as well as criteria and procedure for
reappointing adjudicators, and the grounds and procedure for removing an adjudi-
cator from office.
Again, this aspect of the Qu´ebec system of administrative justice displays very
little homogeneity among statutory provisions. Thus, while in the case of some
agencies the number of adjudicators is precisely set out in the statute, in other cases
the applicable provisions will instead specify a minimum and a maximum number.
In yet other cases, the number of adjudicators is entirely left at the government’s
discretion. The same occurs with regard to the qualifications required from pro-
spective appointees. In most cases (nine out of fifteen), no qualification is required
by statute, whereas in the case of the remaining agencies, legal qualifications are
required, often only indirectly, for at least part of the agency’s members.
Of course, such absence of specification might be made up through the exis-
tence of a rigorous selection process. But again, in the majority of cases (nine out of
fifteen) no such selection process is provided for in the legislation. In one of these
224 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
cases (the Commission qu´eb´ecoise des lib´erations conditionnelles) a selection pol-
icy document has been published, but it carries no binding effect. Statutory provi-
sion for a selection process only exists, therefore, in the case of six of the agencies;
for five of these, the process must be established through a regulation, such a regu-
lation having been indeed adopted (the anomalous case in this group in the R´egie
de l’´energie). The regulation, in turn, provides for the establishment of selection,
for the examination of candidates by a committee, for a committee report assessing
the candidates, for a time-limit within which appointments may be made from a
short list of candidates selected by a committee, etc.
Much the same may be observed with regard to the setting of the remuneration
paid to independent administrative adjudicators; lack of homogeneity is com-
pounded here by lack of precision. The overall effect of rules in this respect is to
leave the matter of remuneration and conditions of employment within the purview
of the government, as is case with all senior officials of the Executive branch. Four
agencies, having in common their being subject to the disciplinary jurisdiction of
the Conseil de la justice administrative (namely, the Commission des l´esions
professionnelles, the Commission des relations du travail, the R´egie du logement
and the Tribunal administratif du Qu´ebec), come under slightly different rules, but
this does not detract from the overall finding; their enabling statute takes some care
to confer more visibility, stability and binding effect to the rules governing remu-
neration, but in actual fact these rules do not distinguish adjudicators serving in
those four agencies from the rest of senior office-holders.
From the standpoint of the independence of adjudicators, no issue seems to be
raised by the rules governing the distribution of assignments within each of the
agencies under study. Assignments are handed out by the chairperson or a vice-
chair and are not subject to interference from the government. Further, chairpersons
also have authority to determine the composition of panels of members, to rule on
situations suggesting that an adjudicator may be involved in a conflict of interests,
and to promote a high level of quality and consistency in adjudication — one
means to the latter being the development of broad policy guidelines through dis-
cussion among the agency’s adjudicators. The carrying out of those mandates by
the chairperson should not normally involve the strong-handed exercise of hierar-
chical authority; yet, empirical evidence from the study suggests that it sometimes
does. In addition, the chairperson is also charged with periodically assessing each
adjudicator’s performance of his or her duties. Insofar as it has no impact on that
adjudicator’s financial security, measuring “performance” is not by itself inimical
to the independence associated with adjudication. Overall, considering only the
normative framework, it would not seem that the authority conferred on an
agency’s chairperson entails a significant risk for the independence of adjudicators
in relation to the agency to which they belong; much would seem to depend, how-
ever, on the manner in which such authority is exercised.
With regard to ethics, independent administrative adjudicators are subject to
standards that are defined very differently depending on the agency. The fifteen
agencies covered by the study come under three different sets of standards. One set
is established under the Act respecting Administrative Justice; it applies to four
agencies: Commission des l´esions professionnelles, Commission des relations du
travail, R´egie du logement and Tribunal administratif du Qu´ebec. Then, each of the
two agencies directly related to the National Assembly (Commission d’acc`es `a
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 225
l’information, Commission de la function publique) has its own set of ethical stan-
dards. And finally, the nine other agencies come under the Regulation respecting
ethics and professional conduct of public office-holders. These three regimes differ
sharply as regards the machinery for imposing disciplinary sanctions. Nevertheless,
all three appear, on the whole and in terms of substance as well as procedure, to
foster individual independence and minimize the risk that ethical standards become
an instrument in the hands of the Executive or of other adjudicators.
Issues related to the length of terms of office and to reappointments do not
arise in the case of the Tribunal administratif du Qu´ebec, since its members are
appointed to serve until retirement, during good behaviour. For five of the other
fourteen agencies, the enabling statute provides for uniform five-year terms; such is
the case with the four agencies specializing in the settlement of disputes (Bureau de
d´ecision et de r´evision, Commission des l´esions professionnelles, Commission des
relations du travail, and R´egie du logement) and with the R´egie de l’´energie. For
the other nine agencies, however, appointments may be for any term under the
maximum of five years. Reappointment is dealt with in a variety of ways. Thus, in
the case of the three agencies coming under the disciplinary authority of the Con-
seil de la justice administrative (Commission des l´esions professionnelles, Com-
mission des relations du travail, and R´egie du logement), the five-year rule is
mandatory for reappointments as it is for initial appointments. The enabling statutes
of three other agencies (Bureau de d´ecision et de r´evision, Commission de protec-
tion du territoire agricole, and R´egie des alcools, des courses et des jeux) do not
even mention the possibility of reappointments. Other statutes contemplate reap-
pointments, but say nothing as to the rules that would apply. The appointing author-
ity therefore enjoys a wide discretion in fixing the length of appointments. Further,
some agencies (e.g. the Commission qu´eb´ecoise des lib´erations conditionnelles) in-
clude several categories of adjudicators, with different rules as to the length of ini-
tial appointments and the possibility of reappointments. The procedure leading to a
reappointment is another area of stark contrast between the detailed rules set out in
the case of the three agencies coming under the disciplinary authority of the Con-
seil de la justice administrative (Commission des l´esions professionnelles, Com-
mission des relations du travail, and R´egie du logement) and the informal and
opaque arrangements prevailing in the case of the eleven other agencies, where
specific provisions may only be found in the orders-in-council dealing with an indi-
vidual’s initial appointment.
As regards revocation of appointments, again, an adjudicator’s position will
depend on the agency to which he or she belongs. Members of the four agencies
coming under the disciplinary jurisdiction of the Conseil de la justice administra-
tive enjoy a relatively safe position; the agencies’ enabling statutes spell out in
precise terms the grounds on which revocation proceedings may be instituted. This
also holds true for the two agencies having a direct relationship with the National
Assembly (Commission d’acc`es `a l’information and Commission de la fonction
publique). Allowing for some variations, the position of adjudicators belonging to
the nine other agencies is much more insecure, since authority to appoint implies
authority to revoke. Orders-in-council appointing persons to such offices indeed
specify, as a condition of the appointment, that the appointee “agrees that the gov-
ernment may revoke [his or her] appointment at any time, without notice or com-
226 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
pensation, on grounds of defalcation, mismanagement, gross fault or any ground of
equal seriousness, proof of which lies upon the government”.
The decision not to reappoint raises an issue different in nature, but having a
comparable impact. Again, members of the Tribunal administratif du Qu´ebec are
sheltered from this difficulty by their being appointed during good behaviour. But
members of the other fourteen agencies under study are confronted with a very
different position. True, members of the three agencies coming under the discipli-
nary jurisdiction of the Conseil de la justice administrative enjoy the right to re-
ceive prior notice that the examining committee intends to make an unfavourable
recommendation; but beyond that point, no clear time-frame applies to the process-
ing of their case. As far as the other eleven agencies are concerned, orders-in-coun-
cil appointing their members provide that the appointee shall be given six months’
advance notice of the responsible minister’s intention to recommend a reappoint-
ment. Until that deadline has passed, the adjudicator will be uncertain about his
position; once it has passed without notice being received — which occurs fre-
quently — uncertainty persists. Such insecurity of tenure is apt to undermine an
adjudicator’s independence; the work environment thus created is hardly conducive
to serene application of legal rules, as the empirical part of the study has disclosed.
Finally, the study has surveyed post-term rules. These differ according to the
different types of situations contemplated. Thus, conflict of interests rules prevent
some public office-holders to engage into activities considered as incompatible
with their former office. Other rules, on the other hand, aim at preserving an adjudi-
cator’s financial security for some time following his departure from office. This is
meant to avoid that an anticipated sharp decrease in income interfere with an adju-
dicator’s independence of judgment. Such a safeguard applies essentially to persons
who, before their tenure of office, did not belong to the public service. Public ser-
vants appointed to an office of independent administrative adjudicator go on leave
without pay and are entitled, at the end of their term, to return to their former de-
partment. Making allowance for such distinctions, an examination of post-term
rules as they apply to each of the fifteen agencies under study suggests that they do
not materially differ and discloses fairly homogeneous treatment.
5. SUMMARY OF FINDINGS
Overall, the survey of the rules that govern the status of independent adminis-
trative adjudicators has shown the difficulty of formulating any statement of gen-
eral application concerning that status. Any such statement immediately calls for
qualifications or exceptions to account for the special case of this agency or that.
On most aspects of the matter, the most that can be achieved in the way of valid
generalization is to distinguish between two groups of agencies. On the one hand,
the group made up of the four agencies coming under the disciplinary authority of
the Conseil de la justice administrative enjoys as a group a fairly homogeneous
regime, as well as clearly stronger safeguards for adjudicator independence. On the
other hand, the motley group of eleven agencies, displaying a great diversity of
regimes, does not — apart from the Commission d’acc`es `a l’information and the
Commission de la fonction publique — benefit from the same degree of concern
for the independence of adjudication.
Through this diversity of rules, one clearly discerns that statutory safeguards
for the independence of adjudicators serving in these fifteen agencies are of uneven
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 227
strength and are in many respects subject to the exercise of discretion by other
actors in Government. Granted, some provisions of statutes or regulations do in-
clude safeguards tending to ensure that individualized adjudication will be carried
out with all due independence. However, other provisions leave room for direct or
indirect influence from the Executive over such adjudication. This is particularly so
as regards the provisions governing appointments, the criteria for selecting appoin-
tees, the process leading to reappointments, and the revocation process.
6. FINDINGS FROM THE EMPIRICAL RESEARCH CONDUCTED
AMONG ADJUDICATORS
An empirical investigation was also conducted among independent adminis-
trative adjudicators themselves as part of this study. Twenty-eight adjudicators be-
longing to the fifteen agencies under study agreed to take part in a semi-directive
interview.
An exhaustive analysis of these interviews discloses a state of affairs that, in
some respects, gives even more cause for alarm. While the interviews confirm
some of the findings based on the survey of statutes and other relevant norms, they
also reveal the problematic nature of situations that, viewed strictly from the angle
of textual analysis, might not appear objectionable; as it turns out, such situations
do indeed undermine, on a regular basis, the independence of adjudicators belong-
ing to the agencies under study.
Thus, the interviews are evidence that requirements of transparency, legiti-
macy, and competence, all three being preconditions of adjudicator independence,
are not complied with, to a very substantial extent: in at least nine of the fifteen
agencies, the absence of criteria for selecting appointees, as well as the opaque
character of processes, both at the selection stage and for reappointments, are quite
incompatible with those requirements. For lack of any adequate normative frame-
work, it becomes impossible to verify that prospective appointees or incumbent
adjudicators do meet the proper standards of independence.
The empirical part of the study also demonstrates that the appointment pro-
cess, as a whole, does not preserve the appropriate balance between the principle of
independent adjudication and the principle of responsible government (the latter,
derived from the democratic principle). In the absence of rules, in the proper sense
of the word, to govern the selection of adjudicators, an examination of actual prac-
tice confirms that such an imbalance leaves the process open to party political in-
fluences, indeed to patronage, in the exercise of the appointing power. Analysis of
the interviews also brings out the fact that the staff of the Secr´etariat aux emplois
sup´erieurs does not differentiate appointing a candidate to an office of adjudicator
from appointing someone to a senior position as administrator of state; this indis-
criminate approach hampers the design of an appointment process that would suit
the specific requirements and duties attached to adjudication.
The empirical research into actual practice shows that the power to appoint
and reappoint adjudicators, and to set the length of their term of office, is regularly
used to provide a convenient posting for some favoured candidate, to reassign pub-
lic officials no longer welcome in their position, or to offer employment to specific
individuals on the eve of a change of government. Important decision-making pow-
ers are thereby regularly conferred on individuals who do not have the appropriate
228 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
qualifications. As is made clear by the interviews conducted as part of this study,
such a course of action may undermine the very legitimacy of appointments.
On a more general level, the uneven level of competence among adjudicators
in a given agency generates a form of dependence: adjudicators that are less well
prepared for these functions, or that are simply incompetent, depend on other adju-
dicators. This becomes particularly apparent where adjudication is being conducted
by panels of adjudicators. Clearly such a state of affairs undermines the indepen-
dence of those that lack the necessary abilities — including even the ability to write
a decision.
The interviews also provide evidence that the absence of rules concerning the
reappointment of adjudicators, and the fact of the reappointment process being con-
ducted by the Secr´etariat aux emplois sup´erieurs, a unit placed directly under the
Executive Council, are both incompatible with the notions of transparency and le-
gitimacy that should govern the accession to the office of independent administra-
tive adjudicator. The empirical part of the research confirms that the exercise of the
government’s appointing power is left without guidance and thus exposed to arbi-
trary decisions being made. Under such conditions, the exercise of that power may
result in adjudicators unanimously viewed as competent being replaced by others
less well prepared (or less competent).
In the case of the six agencies for which a precise procedure has indeed been
established for the selection of appointees and the reappointment of incumbents,
the interviews demonstrate that the reappointment process is often viewed as cum-
bersome and useless, incumbents being systematically reappointed.
The empirical part of the research also shows that the fact of the government
retaining discretion in the matter of reappointments has undesirable consequences
on the state of mind of adjudicators whose appointment comes up for review. At
the very least, this situation and the attendant uncertainty raise a doubt as to the
ability of some adjudicators to perform their duties serenely, or indeed to preserve
their independence of judgment, while the decision on their reappointment is still
pending; some interviewees, at least, had witnessed such situations among their
colleagues.
On the issue of salary determination and employment benefits, absence of uni-
formity among adjudicators is also viewed by them as creating the risk of arbitrary
treatment of individual adjudicators. Interviewees were quite explicit about this
matter. This situation may well give rise to tensions within groups of adjudicators.
Finally, the empirical research shows that adjudicators serving in an adminis-
trative office within an agency (i.e. as chair or vice-chair) play a more significant
role than would be expected on reading the relevant statutory provisions. On the
one hand, it appears from the interviews that even though the chairperson is re-
quired to provide an annual assessment of the performance of every adjudicator in
his agency, such assessments carry little weight in the making of decisions about
reappointments. Indeed, the interviews suggest that, generally, the chairperson is
not involved in the decision to appoint an adjudicator to his agency nor in the deci-
sion to reappoint an incumbent. Yet, on the other hand, interviewees hinted at the
possibility that a chairperson might use his or her authority to distribute cases
among adjudicators in order to favour certain general outcomes on issues consid-
ered as sensitive, thereby undermining the independence of adjudicators or that of
the agency.
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 229
7. THE STATUS OF ADJUDICATORS IN COMPARATIVE LAW:
NOVA SCOTIA, BRITISH COLUMBIA, ALBERTA AND
ONTARIO
The study also contains an examination of the legislation and policies gov-
erning the status of independent administrative adjudicators, including the
processes for their selection and appointment, in four provinces of Canada: Nova
Scotia, British Columbia, Alberta, and Ontario. The legal and administrative re-
gimes of the various provinces display significant differences, both among them-
selves and in relation to the current regime in Qu´ebec. These differences indicate
that the issue of independence as it relates to administrative adjudicators should be
approached keeping in mind the legal, political and historical environment that is
specific to each institutional system.
Unlike Qu´ebec, those four provinces have dealt with the status of independent
administrative adjudicators within a broader policy framework that extends to the
selection and appointment of members for all agencies of Government. This global
approach is particularly conspicuous in the case of Alberta. The other three prov-
inces have treated separately the status of office-holders whose functions corre-
spond, more or less, to those exercised in Qu´ebec by independent administrative
adjudicators; nevertheless, they have also given attention to the selection and ap-
pointment of the members of other types of Government agencies.
The regime set up in any of those four provinces could not be transplanted
wholesale in the Qu´ebec context. However, some features present in one or more of
them could provide useful ideas in the perspective of improving the status of inde-
pendent administrative adjudicators in Qu´ebec. One such idea is the existence of a
uniform statutory framework, governing the selection and appointment of adjudica-
tors. Other ideas include an open, public and transparent process for selecting adju-
dicators; selection criteria emphasizing the competence, experience, and personal
qualifications of candidates; a mechanism for assessing the performance of adjudi-
cators; standard rules governing the length of terms as well as reappointments; a
more precise definition of the authority of chairpersons. Recommendations put for-
ward in the concluding part of the study take into account the experience of those
four provinces, especially in respect of these features.
8. RECOMMENDATIONS
Based on the study summarized above, the researchers recommend that a
framework statute be adopted, laying down the general rules governing the selec-
tion, appointment, and reappointment of independent administrative adjudicators
(Recommendation no. 1). This new legislation should also deal with the remunera-
tion of adjudicators, their conditions of employment, as well as the management of
agencies entrusted with adjudicative functions to be exercised by independent
adjudicators.
The framework legislation should also:
• institute, as an entity directly related to the National Assembly, a Secreta-
riat charged with the administration of the selection process for indepen-
dent administrative adjudicators (Recommendation no. 2);
• set out criteria of competence applying to independent administrative ad-
judicators generally (Recommendation no. 3);
230 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
• provide that any appointment to an office of independent administrative
adjudicator shall have to be justified on the basis of experience, compe-
tence, ability to contribute to the agency’s mission and ability to perform
individualized adjudication (Recommendation no. 3);
• require from every independent administrative adjudicator that he or she
exercise that function with independence, impartiality, and integrity
(Recommendation no. 3);
• provide that no one may be candidate for an appointment as an indepen-
dent administrative adjudicator unless he or she can demonstrate at least
seven years of work experience (Recommendation no. 4);
• provide, in terms similar to those of s. 42 of the Act respecting Adminis-
trative Justice, that independent administrative adjudicators be selected
among persons declared apt according to a procedure established by reg-
ulation; such regulation should determine, in particular: 1) the publicity
that must be given to the recruiting process and the content of such pub-
licity; 2) the procedure by which a person may become a candidate; 3)
the rules governing the establishment of selection committees by the Sec-
retariat; and 4) the information a committee may require from a candidate
and the consultations it may hold (Recommendation no. 5);
• provide that at the conclusion of the selection process, the selection com-
mittee shall declare apt to be appointed to an office as independent ad-
ministrative adjudicator a number of candidates equal to double the num-
ber of positions for which the recruitment process is being held; that the
committee shall transmit to the appointing authority the list of such can-
didates, without setting an order of priority among them but assessing
each of the listed candidates; that the period during which a declaration
of aptitude remains valid shall be determined by regulation; and that the
appointing authority shall appoint candidates from that list, after ob-
taining the advice of the chairperson of the agency to which the appoint-
ment is to be made (Recommendations nos. 6 and 27);
• provide that a selection committee shall be composed of five persons,
two of these representing the public and being chosen from a name bank
maintained by the Secretariat with due regard to the need for broad social
representation and for gender equality in the composition of committees
as well as in the appointment of independent administrative adjudicators
(Recommendation no. 7);
• designate the responsible minister as the appointing authority for inde-
pendent administrative adjudicators belonging to agencies for which he is
responsible, subject to approval of appointments by the government
(Recommendation no. 8);
• provide that the initial term of office for every independent administra-
tive adjudicator shall have a duration of five years, that any subsequent
term shall also have a duration of five years, and that any reappointment
of an adjudicator shall require previous demonstration of his or her com-
petence (Recommendation no. 10);
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 231
• provide, as regards the process leading to the reappointment of an inde-
pendent administrative adjudicator, in particular: that the adjudicator
shall receive notice of the government’s decision at least three months
before the expiration of the adjudicator’s term of office, failing which the
adjudicator shall automatically stand reappointed; that the appointing au-
thority shall reappoint an adjudicator whenever the chairperson of the
agency has recommended that he or she be reappointed; and that the
chairperson shall make such recommendation whenever the adjudicator’s
annual assessment of performance has been satisfactory (Recommenda-
tions nos. 11, 12 and 13);
• mandate the chairperson of an agency to preserve the integrity of the
agency’s adjudicative function, to make recommendations to the ap-
pointing authority concerning the reappointment of adjudicators belong-
ing to the agency, and to report such recommendations, in quantitative
terms, in the agency’s annual report of activities (Recommendation no.
14);
• confer on any independent administrative adjudicator who is not reap-
pointed and does not pursue a career in the public sector the right to a
transition allowance (Recommendation no. 15);
• require that any public servant appointed to an office as independent ad-
ministrative adjudicator resign from the public service when he or she is
first reappointed as an adjudicator (Recommendation no. 16);
• bring all independent administrative adjudicators under the disciplinary
jurisdiction of the Conseil de la justice administrative and confer on the
Conseil authority to establish by regulation a code of ethics applying to
all adjudicators (Recommendation no. 18);
• determine, for all independent administrative adjudicators, in terms simi-
lar to those of the Act respecting Administrative Justice, the occurrences
giving rise to disciplinary sanctions, the situations considered incompati-
ble with an adjudicator’s office, the disciplinary procedure, and the appli-
cable sanctions (Recommendation no. 17);
• provide for the annual assessment of an adjudicator’s performance of his
or her duties, set out the purposes of such assessment and confer on the
government authority to establish by regulation assessment criteria (rec-
ommendation no. 19);
• list the factors based on which an adjudicator’s initial remuneration shall
be fixed; confer on the government, in terms partly similar to those of the
Act respecting Administrative Justice, regulation-making authority over
the remuneration and employment benefits of independent administrative
adjudicators; and provide that an independent body shall periodically re-
view scales of remuneration and other conditions of employment applica-
ble to independent administrative adjudicators (Recommendations nos.
21, 22, and 23);
• confer on the chairperson of every agency composed of independent ad-
ministrative adjudicators, in terms similar to those of the Act respecting
Administrative Justice, the authority required to manage the agency’s ad-
232 CDN. JOURNAL OF ADMIN. LAW & PRACTICE [27 C.J.A.L.P.]
judicative activities and, subject to previous consultation of the vice-
chairs and other members, authority to issue directives aimed at fostering
consistency in adjudication (Recommendation no. 24);
• confer on every agency composed of independent administrative adjudi-
cators, in terms similar to those of the Act respecting Administrative Jus-
tice, authority to establish rules of practice and procedure, subject to ap-
proval by the government (Recommendation no. 24);
• confer on the government or the responsible minister authority to issue,
for any agency composed of independent administrative adjudicators, di-
rectives respecting the general policy and objectives of the agency (Rec-
ommendation no. 24);
• require the government, when exercising authority, under an agency’s en-
abling statute, to determine the number of independent administrative ad-
judicators composing the agency, to take into account the agency’s needs
(Recommendation no. 26);
• list, in terms partly similar to those of the Act respecting Administrative
Justice, the duties incumbent on the chairperson of an agency composed
of independent administrative adjudicators, adding thereto an advisory
function to the government prior to the appointment of an adjudicator, as
well as authority to enable an adjudicator whose term of office has ended
to continue hearing and adjudicate matters that he has already begun
hearing (Recommendation no. 27).
Finally, the authors of the study further recommend:
• that the Standing Orders of the National Assembly provide a mechanism
for parliamentary approval of appointments as an independent adminis-
trative adjudicator (Recommendation no. 9);
• that the government, after having carried out an assessment of presently
available training, make available to all independent administrative adju-
dicators, newly-appointed ones having priority of access, basic training
adapted to the requirements of their office and to their level of prepara-
tion (Recommendation no. 20);
• that the government examine the possibility that that the new framework
legislation enable the responsible minister and the chairperson of an
agency composed of independent administrative adjudicators to formu-
late jointly a memorandum of understanding about the management of
the agency (Recommendation no. 25);
• and lastly, that the language of s. 56 of the Charter of Human Rights and
Freedoms be harmonized with the Act respecting Administrative Justice
and the present state of administrative law, through the substitution of
“adjudicative” for “quasi judicial” (Recommendation no. 28).
Adjudication by independent administrative adjudicators contributes to the
achievement of administrative justice in Qu´ebec. That system of justice is different
in nature from the systems of civil or criminal justice. It follows that the safeguards
provided to ensure the independence of administrative adjudication need not be the
same as those required for the courts. Nevertheless, by its very nature, the adjudica-
tive activity of these administrative agencies calls for a basic and uniform protec-
ADMINISTRATIVE JUSTICE: INDEPENDENCE AND RESPONSIBILITY 233
tion of their independence. This uniform threshold must be guaranteed by statute.
What is at stake in this matter has a vast significance, since administrative justice is
bound to expand in the future. With globalization and the increasing speed of com-
munications and social intercourse, priority must be given to preserving sensitivity
to change on the part of institutions involved in adjudicating on rights and interests.
Government, in Qu´ebec as elsewhere, will need to adapt the parameters of its ac-
tion to these new requirements. In this perspective, the need for the speedy, expert,
and affordable determination of issues — traditionally the core business of admin-
istrative agencies engaging in adjudication — will exert ever stronger pressure on
the justice system. Giving this part of the administrative justice system a sound
statutory basis would not only assist in overcoming its present inadequacies but
also prepare it for the upcoming societal challenges. Adopting such a framework
legislation, striking the proper balance between the principle of independent adjudi-
cation and the principle of responsible government is the first and most important
step in a reform initiative that has become necessary.
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