ADMINISTRATIVE LAW – CHAPTER 2 – ADMINISTRATIVE AGENCIES AND TRIBUNALS

1. How the system of agencies developed, and how agencies have modified the traditional approach to administering and enforcing laws.
2. The issues that agencies raised for government accountability and independence, and how this led to the development of a body of "administrative law."
3. Where administrative agencies fit into the executive, legislative, and judicial branches of government.
4. The kind of agencies that governments establish and why they establish them.
5. What administrative tribunals are and how they compare with other agencies.
6. The kinds of decisions that are likely to be referred to tribunals rather than to government officials, and
7. How tribunals are similar to courts and how they are different.

The structure of the executive branch of government in Canada has changed dramatically.
ABCs: Agencies, aboards and Commissions: recognized as a separate sector within the executive branch.
What issues these "hybrid" entities raise for government accountability and independence?

In its traditional form, the deductive branch of the federal and provincial governments consists of centralized departments or ministries, each headed by a Cabinet minister who was a member of Parliament or the provincial legislature.
The traditional departmental structure rested on two cornerstones: accountability of the minister to the public as a member of the legislature, and insulation of the civil service from political influence through an independent system of hiring, remuneration, promotion, and dismissal.

Special-purpose agencies were established outside the traditional structure of the executive branch to allow the government to carry out civil service functions with greater flexibility, efficiency, and expertise.
1851 - Board of Railway Commissioners under the Railway Act.
1912 - Workmen's Compensation Board of British Columbia.
1945-1984 - number of agencies doubled in Ontario;
1989 - Ontario's ABCs: 580; and 1500 across Canada.
1990 - 120 federal administrative commissions, boards and councils.

Ontario's Management Board Secretariat divides the agencies into 7 categories:
1. Advisory Agencies.
2. Operational service agencies.
3. Operational enterprises.
4. Regulatory agencies.
5. Adjudicative agencies or "tribunals."
6. Crown foundations.
7. Trust agencies.

1. To demonstrate independence.
2. To reduce the size, workload or budget of a department.
3. To reduce conflicts of interest.
4. To provide flexibility in human resources.
5. To provide expertise and specialization.
6. To ensure representativeness.
7. To signal a new or different approach.
8. To achieve coordination or uniformity.

The need of an appropriate balance between accountability and independence required the development of a body of "administrative law" to regulate how government in general -and the executive branch in particular- carries out its functions.

Many administrative agencies are multipurpose bodies: they have several functions.
In order to ensure fairness, administrative law often requires multipurpose agencies to separate their functions and follow different rules when carrying them out.
E.g. Provincial law societies.

Investigators, prosecutors, and adjudicators are different people, and the activities of investigators, prosecutors, and decision-makers are isolated to prevent each of them from unduly influencing the others or usurping the others' functions.
Failure to ensure separation may invalidate the process.
"No one will be a judge in his own cause"

"No one will be a judge in his own cause."
The prosecutor and the decision-maker may not be the same person.

A further requirement that ensures to separation of functions is that an adjudicator may not delegate his / her decision-making authority.
The decision-maker must be sufficiently independent from the prosecutor, and the prosecutor must have a reasonable level of independence from the investigator.

Tribunals can also be called boards or commissions.
They are created by special statutes passed by Parliament or a provincial legislature for the purpose of adjudicating (settling) disputes between individuals and/or companies, and between individuals or companies and the government, over statute-based rights, entitlements and duties.
The government creates different kinds of decision-making processes for different kinds of decisions, guided by principles of efficiency, effectiveness and fairness.
For straightforward administrative decisions, the government usually delegates the decision-making function to an internal decision-maker, who is permitted to use informal procedures in making decisions.

Where there is a dispute between a person and a government official who has made a decision that adversely affects that person, or where is a dispute between two or more parties, the government often establishes a quasi-judicial tribunal to resolve the dispute.
- The Ontario Child and Family Services Review Board.
- Land-use planning tribunals such a as Ontario Municipal Board.
- Ontario's Criminal Injuries Compensation Board.
- Property Tax Assessment review boards.
- Federal and provincial parole boards such as the Ontario Parole and Earn Release Board.

Are often viewed as part of the executive branch, but also perform functions similar to the judicial branch.
Because they do not fit neatly into either branch, tribunals are described as hybrid.
Politicians and civil servants often view tribunals as being too independent, while parties subject to their decisions regard them as not being independent enough.

Every administrative tribunal is governed by its enabling legislation: the statute that creates it for a specific purpose, and by other statutes that set out its powers and duties. Where the statue is silent on the rights of the parties, common law requirements for fair procedures supplement the powers and duties of a tribunal.

A government often establishes a tribunal when:
1. G wants to create a mechanism t review the decision of a government decision-maker.
2. The decision-maker must resolve a dispute between two or more individuals or companies rather than deciding an issue strictly between the government and an individual.
3. The decision has serious consequences for a person or for society. The higher the stakes involved, the more likely it is that the agency initial decision will be a tribunal.

The government may create a specialized tribunal:
1. To demonstrate the impartiality of a decision-making process and avoid any perception that the decision-maker is biased.
2. To ensure fairness of procedure and outcome...
3. To send a message to the community that the issue is important...
4. T distance the government from potentially unpopular or controversial decisions.
5. To allow for citizen participation...
6. To involve experts in the decision; or
7. To handle cases more efficiently or cost-effectively...

Possible reasons to have decisions made outside of government bureaucracy:
1. Where it's desirable to have decisions made by a person's peers or by experts...
2. Over time, members of a specialized tribunal can develop expertise in administering a particular sweet of laws...
3. Tribunals can include representatives of interest groups affected by the tribunal's mandate or professionals backgrounds relevant...
4. Tribunals have certain structural advantages over courts.
5. Tribunals can often hear cases quickly and without delay.

Both must:
1. Ensure that all parties have been given reasonable notice of the proceedings before the hearing begins.
2. Ensure that all parties have an opportunity to present their case.
3. Ensure that all parties have been informed of the case they have to meet.
4. Allow all parties to present evidence and to cross-examine witnesses or test the accuracy of the evidence against them in other ways.
5. Grant adjournments if a party would otherwise be deprived of a reasonable opportunity to present its case fully.
6. Give all parties a chance to make final submissions.
7. Allow all parties to be represented by a lawyer or agent,
8. Avoid any statements or actions that would suggest that the tribunal has prejudged issues or harbours a bias or or against a party; and
9. Apply the law that governs the proceedings and take into account considerations that are relevant under that law.

Rules and procedures of tribunals are generally less formal and more flexible than those of courts.
This can be an advantage or a disadvantage to the parties.

COURTS: lower courts are bound by the decisions of higher courts. All judges must interpret the law in the same way that a higher court has interpreted it.

COURTS: require parties to follow complicated rules of evidence that are designed to prevent misleading information from coming before the court. These rules of evidence are difficult to understand and apply correctly, even for lawyers.

COURTS: generally require parties in civil cases to disclose their evidence before the hearing. This results in lengthy delays and substantial costs before the hearing begins, but it reduces surprises and improve the efficiency of the hearing. Disclosure also facilitate settlements and may shorten or eliminate the need for a hearing.

COURTS: rely entirely on the parties to present the evidence and the arguments on which the court will base its decision.

COURTS: usually follow a formal and adversarial process.

COURTS: judges don't identify themselves at a hearing, and court clerks don't identify them either.

COURTS: seating arrangements in courts are standardized. The judge often sits in a dais at the front of the court room, elevated above the participants.

COURTS: have more ceremonial trappings. Everyone stands when the judge enters. The lawyers and agents always stand when they are addressing the judge and when examining or cross-examining witnesses. The lawyers and the judge bow to each other when the judge enters the courtroom, and the lawyers bow to the judge when they leave. In certain courts, judges and lawyers wear robes and gowns.

COURTS: witnesses must swear and oath or solemnly affirm that they will tell the truth.
SPPA = Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

For the most part, the Responsibilities of tribunal members, their Requirements for impartiality, and their scope of decision-making power are similar to those of judges. But there are some differences.

DIFFERENCES BETWEEN TRIBUNAL MM & JJ:
Some of the safeguards afforded to the judges to assist the in withstanding political pressures are not afforded to many tribunal members.
Unlike judges, tribunal members have no security of tenure, and the government may terminate their appointments at any time.

DIFFERENCES BETWEEN TRIBUNAL MM & JJ:
Many tribunal members serve in a part-time capacity, and may be involved in business, professional, volunteer, and social activities that might be unacceptable for judges and may bring their impartiality into question.

DIFFERENCES BETWEEN TRIBUNAL MM & JJ:
Unlike judges, however, tribunal members may have considerable discretion = power to chose a course of action from among a variety of options in applying the law, or they may be expected to apply, interpret or follow government policies.

DIFFERENCES BETWEEN TRIBUNAL MM & JJ:
But while judges are required to decide cases using only the evidence presented by the parties, tribunal members with specialized knowledge and expertise may have some latitude in applying their knowledge or understanding of professional standards and norms in making a decision.

Is the process of receiving and considering the evidence and arguments presented by both sides in a dispute and making a binding decision by applying the relevant law to the issues of the case.
In our tribunal system, the adjudicator is often relatively passive...
He or she is like a referee who makes sure that the parties follow the rules of the game but is not permitted to favour one party or the other.

Two different approaches to the conduct of hearings.

The parties the,selves determine what evidence is brought before the tribunal, and the tribunal is not permitted to actively seek out evidence beyond that presented by the parties.
This system is based in a number of related assumptions: e.g. The parties are in the best position to decide what evidence de is useful.

Requires the tribunal to conduct the investigation and collect the evidence.
In this system, the tribunal itself may have the burden of finding enough evidence to determine whether a party is entitled to a remedy.

A tribunal has some leeway to follow an inquisitorial process if the tribunal's enabling legislation, the statute:
1. Refers to the decision-making process as an "inquiry" rather than a "hearing."
2. Says the tribunal "may" hold a hearing or inquiry rather than "shall" hold one.
3. Gives the tribunal power to collect evidence independently of the parties.
4. Requires the tribunal to determine what constitute the public interest or is necessary to protect public health or ensure public safety, rather than to resolve a dispute between individuals, or
5. Requires that the adjudicators have special expertise in the subject matter.

Federal and provincial parole boards.
Information and Privacy Commissioner in Ontario under the Freedom of Information and Protection of Privacy Act.

Some tribunals combine elements of both processes, adversarial and inquisitorial.
In tribunal proceedings, it depends on the tribunal's mandate, the wording of the enabling legislation, and what is fair in the circumstances.