LGST 331 Unit 2: Administrative Agencies and Tribunals

demonstrate independence; reduce size, workload, budget of departments; reduce conflicts of interest; provide flexibility in HR and reduce labor costs; provide expertise and specialization; ensure representativeness; avoid permanence; signal new or different approaches; achieve coordination and uniformity.

Government can use administrative agencies to make or enforce decisions they don't want to.

traditional system - government ministers were responsible for things. over time, this got more complex so agencies came into effect for these reasons:
demonstrate independence; reduce size, workload, budget of departments; reduce conflicts of interest; provide flexibility in HR and reduce labor costs; provide expertise and specialization; ensure representativeness; avoid permanence; signal new or different approaches; achieve coordination and uniformity.

Public doesn't expect much time given by civil service or politicians to particular issues; agency/tribunal/commission can sit for months hearing/receiving evidence/docs, render decision.
Courts have specific rules where boards don't, some can bypass certain rules.

Review Agencies: investigate, report, advise.

Agencies dealing with appeals, mediations and adjudication.

Agencies dealing with the individual.

Economic regulatory agencies dealing with large sectors of the federal or provincial economies.

Agencies dealing with land planning, property values, assessment, and land compensation.

Socio-economic issues like wage, jobs, pension, benefits.

Material control and marketing boards.

Deal with natural resources and their conservation.

Deal with healthcare.

Deal with financial matters.

...

The adjudicative bodies in administrative law are called "tribunals," also known as "administrative justice tribunals" or "administrative tribunals." A tribunal is an agency whose main function is to decide disputes between opposing parties; for example, whether a government department or ministry has not provided a service to which an individual or company is entitled, or whether government or a business has improperly treated or violated the rights of an individual. Tribunals function similarly to courts in that they are required by statute or by common law to follow procedures similar to those of courts in deciding disputes between individuals and/or companies, or between individuals or companies and the government, over statute-based rights, entitlements, and duties.

Like courts, tribunals generally must follow a fair process, which means that affected persons must have the right to be heard, and to be heard by an impartial decision-maker. This entails rules governing notice, disclosure, the presentation of evidence, the questioning of witnesses, adjournments, submissions, and representation by counsel or other agents. Like courts, tribunals generally must
ensure that all parties have been given reasonable notice of the proceedings before the hearing begins;
ensure that all parties have an opportunity to present their case;
ensure that all parties have been informed of the case they have to meet;
allow all parties to present evidence and to cross-examine witnesses or test the accuracy of the evidence against them in other ways;
grant adjournments if a party would otherwise be deprived of a reasonable opportunity to present its case fully;
allow all parties to be represented by a lawyer or agent;
avoid any statements or actions that would suggest that the tribunal has prejudged issues or harbours a bias for or against a party;
apply the law that governs the proceedings and take into account considerations that are relevant under that law;
give all parties a chance to make final submissions; and
give reasonably clear reasons for its decision.

The two main systems are the adversarial system and the inquisitorial system:
The adversarial system: The parties themselves 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. It is required, though, to give the parties extensive opportunities to put forward their case and to challenge the case put forward by others. The adversarial system is based on a number of assumptions: that the parties are in the best position to decide what evidence is useful; that both parties have adequate financial resources and access to information to participate effectively in the process; and that there is no substantial power imbalance between the parties. In an adversarial system, one of the parties usually has the burden of proof.
The inquisitorial system: Often found in Europe, this system requires the tribunal to conduct the investigation and collect the evidence. Adjudicators may have greater latitude to examine and cross-examine the parties and witnesses, and may even call witnesses on their own initiative. An inquisitorial system can help re-establish the balance between "weak" citizens and "strong" government, particularly if the adjudicator's authority to obtain information does not prevent the parties from also playing a substantial role in bringing forward evidence and making representations. In the inquisitorial system, the tribunal itself may have the burden of finding enough evidence to determine whether a party is entitled to a remedy.

A statute suggests that a particular tribunal is inquisitorial rather than adversarial if it
refers to the decision-making process as an "inquiry" rather than a "hearing";
says the tribunal "may" hold a hearing or inquiry rather than "shall" hold one;
gives the tribunal power to collect evidence independently of the parties;
requires the tribunal to determine what constitutes the public interest or what is necessary to protect public health or ensure public safety, rather than to resolve a dispute between individuals about property or money; or
requires that the adjudicators have special expertise in the subject matter.

Under section 92 of the Patent Act, RSC 1985, c P-4, the federal minister of health may establish an advisory panel consisting of representatives of provincial health ministers, consumer groups, and representatives of the pharmaceutical industry, and consult with this panel before deciding whether to appoint a person to the Patented Medicine Prices Review Board. (See Chapter 15 of the course textbook for a description of the Board.)

Under section 37 of the Canada National Parks Act, SC 2000, c 32, the federal Cabinet may establish a Wildlife Advisory Board for the traditional hunting grounds of a Cree band within Wood Buffalo National Park. Although called an "advisory" board, unlike most advisory bodies, this Board may make regulations—subject to the approval of Cabinet—respecting the issuance of permits for hunting, trapping, and fishing by the Cree band in their traditional hunting grounds.

The Canadian Dairy Commission, established under the Canadian Dairy Commission Act, RSC 1985, c C-15.

The Canada Industrial Relations Board, established under the Canada Labour Code, RSC 1985, c L-2.

To obtain access to a record, an individual must apply to the ministry or agency that has possession or control over the record. Within 30 days, the institution must issue a decision whether or not to release the record. If the institution refuses access to the record, the requester may appeal the refusal to the Information and Privacy Commissioner.

A person who has made a request for access to a record, for access to his or her own personal information, or for correction of his or her personal information, may appeal a refusal to the Commissioner. There is no specific form or format required. The person need only mail or deliver to the Commissioner a letter stating what was requested, the reasons given for refusing access, and the reasons he or she believes that the decision was unreasonable. The Commissioner has published a suggested appeal form and a suggested form for authorizing a person to act as agent on any appeal. Both forms are available on the Commissioner's website at Information and Privacy Commissioner of Ontario . The person must pay a fee prescribed by a regulation under the Act and must make the appeal within 30 days after notice is given of the decision that is being appealed.
On receipt of the notice of appeal, the Commissioner must notify the decision-maker, as well as any "affected person." An affected person is a person to whom the requested information relates, and whose personal or economic interests may be affected by the disclosure of the requested records.
The Commissioner will usually appoint a mediator, who will meet with the parties to attempt to narrow or resolve issues in the appeal. If mediation does not resolve all the issues, the Commissioner will appoint an adjudicator to conduct an inquiry. In the inquiry, the adjudicator will receive written submissions ("representations") from each of the parties. Although not required by the Act to do so (see below), the adjudicator will share with each party as much of the written representations of the other parties as can be disclosed without revealing the contents of the records at issue or other confidential or privileged information.
The process for appeals is addressed in greater detail in a Code of Procedure and several Practice Directions issued by the Commissioner, which are available at: Information and Privacy Commissioner of Ontario .