[this letter was sent to Prime Minister Trudeau and Minister of Justice Wilson-Raybould on May 5, 2016]]
May 5, 2016
The Right Honourable Justin Trudeau, P.C., M.P.
Prime Minister of Canada
80 Wellington Street
Ottawa, Ontario K1A 0A2
Dear Prime Minister,
Re: Governor-in-Council Appointments to Adjudicative Tribunals
We were all pleased to see the announcement in February of your intention to develop a more rigorous, open, transparent, and merit-based GIC appointments process for the federal “commissions, boards, Crown corporations, agencies and tribunals”. This is a welcome and long overdue initiative.
Your announcement and the Canadian Bar Association’s April 27, 2016 response, which we endorse, have prompted us to write to encourage you, in developing new GIC appointments processes generally, to pay particular and special attention to the processes for appointing – and re-appointing – the chairs and members of federal tribunals whose function is mainly the adjudication of legal rights disputes including, for example, the Canadian Industrial Relations Board, the Canadian Human Rights Tribunal and the Social Security Tribunal.
This is not to minimize the need for reforms regarding the appointment processes for non-adjudicative, executive-branch bodies – the regulatory agencies, Crown corporations and the like – whose functions are regulatory, administrative or management in nature. We look forward to appointment process reforms for those bodies, consistent with the rule of law, which will optimize their competence and independence, minimize their partisanship, and enhance the extent to which these bodies reflect the populations they serve.
However, as recognized in the CBA’s response, the appointment and re-appointment processes for adjudicative tribunals present a special challenge. The powers of adjudication entrusted to the chairs and members of these tribunals should manifestly respect the rule of law and rest on clear and strong principles of adjudicative independence and impartiality.
The processes for the appointment and re-appointment of adjudicative tribunal chairs and members in Canada’s administrative justice systems, and not least in the federal system, are incompatible with the rule-of-law’s adjudicative principles to the extent that they:
• are perceived to be partisan processes;
• appoint chairs and/or members at pleasure;
• expose chairs and members to arbitrary, mid-term dismissals without cause; or
• render reappointment decisions that are not transparent or merit-based and are often perceived to be arbitrary.
These deficiencies all strike at the heart of the entitlement of Canadians to an adjudication of their rights and obligations by decision makers who are, and are seen to be, independent and impartial. Their nature and justice implications were authoritatively documented in La justice administrative : entre indépendance et responsabilité, the report of a recent empirical study of Québec’s adjudicative tribunals which will serve as an invaluable reference in your planned reform of GIC appointments.
Your commitment to the development of a “new approach” to GIC appointments in the federal system generally presents an opportunity for a careful review of what is needed from a rule of law perspective for adjudicative tribunals in particular, and offers the prospect of fundamental reforms in what has been a long-neglected component of our justice system.
It is a prospect we embrace and an opportunity which we are respectfully hopeful you might seize.
Professor Lorne Sossin, Dean, Osgoode Hall Law School, York University; Professor Emeritus David Mullan (Queen’s University); Professor Laverne Jacobs, University of Windsor, Faculty of Law; Professor France Houle, Associate Dean (études de 1er cycle), Faculté de droit, Université de Montréal; Professor Gerald Heckman, University of Manitoba, Faculty of Law; Dr. Ron Ellis, Q.C.
Cc: The Honorable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada