Banal Injustice

Canadians often look askance at the American habit of electing judges: Is a fair hearing on the merits truly possible when the judge has one eye on the clock counting down to his or her next date with the ballot? Would you want your case decided by someone whose primary qualification for the job was an ability to network successfully with power brokers? How comfortable would you be having life-altering decisions about your rights made by someone who knows that their continued employment is contingent on their decision being deemed acceptable by prospective campaign financiers? But as Ron Ellis comprehensively demonstrates in Unjust by Design: Canada’s Administrative Justice System, for many adjudicative decisions in Canada, the situation is even worse than that, lacking even the patina of democratic accountability offered by elections.

Before readers cock a dubious eyebrow, some background is in order. The titular “administrative justice system” is the welter of court-like “administrative tribunals” responsible for making decisions about a bewildering array of rights and disputes in this country. Familiar examples include adjudicative bodies dealing with human rights complaints, injured workers’ compensation matters, disability pensions, residential landlord and tenant disputes, parole eligibility and refugee and immigration determinations. Canadians live their lives subject to the jurisdiction of a plethora of these rights-adjudicating bodies.

They constitute, in Ellis’s phrase, “an uncertain topography”—but that uncertainty is not because they function surreptitiously or on the margins of the daily lives of Canadians. Administrative tribunals are critical elements of the judicial architecture in this country. While most Canadians will never see the inside of a real courtroom, either as a defendant in a criminal trial or as a party to civil litigation, they stand a much higher chance of finding their rights being adjudicated by one of the aforementioned bodies or their dozens of cousins. Tribunals in Ontario are estimated to render more than one million decisions a year, and in 2010 alone just the Ontario Workplace Safety and Insurance Board dealt with more than 250,000 applications. To the extent that administrative justice in Canada remains an uncertain or little known topic, it is because it is so diffuse and omnipresent that we generally fail to think of it as a stand-alone system, failing, to lapse into cliché, to see the forest for the trees.

As Unjust by Design documents, however, once the existence of the system is appreciated, we can see that it suffers from debilitating deficiencies that threaten to delegitimize the decisions made by many administrative tribunals. The critique offered by Ellis (who previously served as chair and CEO of the Ontario Workers’ Compensation Appeals Tribunal and is currently a faculty member with Osgoode Hall’s graduate program) is fundamentally about the rule of law in Canada and how a significant component of the Canadian justice system fails to comply with it. In short, the administrative justice system suffers from congenital failures to comply with basic elements of the rule of law such as independence, impartiality and competence, and those failures threaten to destabilize the legitimacy of the critical work done by these bodies.

The deficiencies can be described with relative ease: most administrative tribunals are not independent, they are not impartial and there are limited mechanisms in place for ensuring even the basic competence of their members. To far too great an extent, administrative tribunals are riddled with political patronage appointments of unqualified members, hobbled by uncertain funding and oversight and the decisions they make are buffeted by the winds of political expediency.

A single illustration, cited by Ellis, should suffice to demonstrate how tenuous is the connection between abstract notions of justice and the current administrative justice system. The illustration involves the Immigration and Refugee Board, for decades viewed as the ne plus ultra of patronage-ridden, structurally deficient and politically motivated administrative justice. In 2009, the Conservative federal immigration minister publicly mused that refugee claims made by members of the Roma community were being too enthusiastically approved by the Immigration and Refugee Board; importantly for this story, the members of that board enjoy reappointment to their position at the whim of the minister. Before the minister made his comments, the success rate of application appeals to the board was running around 97 percent; within a year of making the comments, the success rate had evidently dropped to less than 0.1 percent. That stunning reversal of fortune indicates that whatever bases the board was using to make its decisions, substantive merit was not foremost among them. And as Ellis makes clear, such a result is not a function of the political stripe of the current federal government, but is endemic to the system itself: 20 years earlier, Jean Chrétien’s Liberal government viewed Mulroney-government appointees to the board as too obstructionist with refugee claims, and simply replaced them with its own set of patronage appointments more inclined to deliver politically simpatico approvals of refugee claims.

Ellis uses language that, particularly when coming from an esteemed lawyer, abuts on the apocalyptic. The administrative justice system is, in his words, “shameful,” a “train wreck,” a “national scandal,” a system that “ignores the rule of law” and is “at a minimum, careless of competence.” Although his tone may be more anxious than others writing on the topic, Ellis is no Cassandra decrying a problem only he can discern. Across the country, dozens of reports and studies have been commissioned and written over the last few decades, each vigorously advocating for fundamental reform of Canada’s administrative justice system. But as with so many virtuous proposals that do not enjoy front-page attention and offer no obvious electoral upside, they have been shelved by governments content to continue availing themselves of a convenient vehicle for their patronage needs.

At the heart of the problems set out in Unjust by Design is the fragility of the job security enjoyed by administrative tribunal members. A comparison with judges is instructive: members of the Canadian judiciary are appointed for life, with removal from the bench happening only in the rarest circumstances and for the most egregious transgressions; judges have no fear that their continued employment is subject to their rendering a decision in a particular case which the government of the day deems favourable. Administrative tribunal members, by contrast, are subject to what Ellis terms “idiosyncratic removal.” They are appointed to short, fixed terms (usually of three to five years’ duration), and governments routinely exercise their reappointment power in a capricious, ideologically motivated fashion, with incoming governments clearing the decks of appointees remaining from the prior government or removing those who deliver unpopular decisions (or, apparently just as often, refusing to reappoint adjudicators for no discernible reason whatsoever). Because governments are not required to provide any reasons for a failure to reappoint, speculation abounds as to why qualified individuals were let go. Was Judy Parrack not reappointed to the British Columbia Human Rights Tribunal, despite the recommendation of the tribunal’s chair, because she had rendered a decision in a case involving McDonald’s Restaurants that had caught the eye of Ezra Levant and became the subject of mocking op-eds? Was Paul Kennedy not reappointed as chair of the RCMP Complaints Commission because he oversaw a report critical of the conduct of RCMP officers in the Robert Dziekanski fiasco? The lack of a transparent and objectively administered reappointment process means that adjudicators toil in an atmosphere of uncertainty and second guessing.

In addition to brittle job security, administrative tribunals are tainted by rampant political patronage. Patronage consists of two related but separate activities, in both cases subordinating issues of qualification and competence: “reward” appointments for friends of the government and “motive” appointments, whereby ideologically acceptable candidates are given positions in the hopes that they will exercise their powers in a manner that furthers the government’s goals. While reward patronage is becoming less common (although certainly it has not been eliminated), motive patronage remains a problem. Because governments in many cases enjoy unfettered power to remove or reappoint adjudicators at the end of their terms, the incentives remain strong for adjudicators, even those who were not appointed because of their ideological compatibility with the government of the day, to skew their decisions so as to please their political overlords.

The persistence of patronage speaks to another of the primary deficiencies of the administrative justice system: the competence of adjudicators. Because patronage appointments prioritize partisan loyalty, actual qualifications for the job are sometimes a secondary concern. This results in occasional public flare-ups: in 2003 Peter Showler, the outgoing chair of the Immigration and Refugee Board, decried the “devastating blight” of patronage on the workings of the board, which resulted in “mediocrity and incompetence” among its members. In 1990, the former chair of the National Parole Board spoke of how “dangerously inexperienced appointees have been foisted upon” the board by successive federal governments. Efforts to reform the most egregious failings appear to be mostly illusory: ministers retain final decision-making authority over appointments, vacancies are rarely advertised, qualifications are so broadly worded as to permit virtually anyone to qualify and governments generally structure the appointments system such that they have the discretion to appoint from a pool of qualified candidates (some of whom will inevitably have the requisite partisan credentials) rather than being forced to appoint the most qualified candidate. Even recent reform efforts (such as 2009 legislation passed by the McGuinty government in Ontario) end up offering incremental merit-based reforms in one area only to tighten governmental control in another.

We can glimpse, then, how it is that our administrative justice system is structurally incompatible with the delivery of justice, understood as impartial and independent decision making. A lack of job security is coupled with rampant patronage leading to a deficiency of competence. Budgetary control resides with the political masters of administrative tribunals, a subservience that is married to a lack of administrative control over their own operations. These all conspire to mean that many administrative tribunals in Canada are deficient to such an extent that the quality of justice they deliver is not just disturbingly suspect but, as Ellis contends, unconstitutionally so.

Unjust by Design does not merely catalogue the failures of Canada’s administrative justice system, it offers a grand plan for reform. Although the details of that plan are too extensive to neatly summarize, suffice it to say they aim to address the issues of impartiality, independence and competence by functionally creating a new class of professional adjudicators who would be subject to oversight by a new governing council, government ministry and professional school. In this regard, Ellis’s enthusiasm and obvious concern for the topic perhaps race ahead of practical politics. The proposals are ambitious almost to the point of utopianism—although if you take seriously the deficiencies of the system as Ellis has described them, it is critical that at least some of the proposals be implemented.

Although Unjust by Design is a book worthy of devoted attention, it is not without its faults, one editorial, one of significant substantive importance. As to the first, given the subject it is perhaps inevitable that the book reads as being written for a specialized legal academic audience. Even so, its origins in the author’s graduate work at Osgoode Hall Law School do not excuse structural oddities such as having basic terminology not explained until nearly a third of the way through the book or having the book’s more arresting anecdotes (such as those cited in this essay) buried amidst lengthy jurisprudential discursions. Unfortunately, the author’s “Invitation to Discussion,” which opens Unjust by Design (pointing readers to his website administrativejusticereform.ca), may be stymied by a book whose impact is likely only slowly to ripple outward from the insular audience at which it is aimed. The issues addressed by Ellis would be well served by a more populist approach.

While it may seem churlish to critique a book on a complex topic for being too dense for its own good, one substantive failing of the book is of even deeper concern because it reveals an ambiguity in Ellis’s project of reform. The failure relates to the province of Quebec. Ellis expressly excludes Quebec from his analysis, apart from occasional comparative glances, because of what he describes as Quebec’s “radical and progressive reform” of its administrative law system in the mid 1990s. The sporadic references to Quebec’s current administrative law architecture indicate that it has moved to address many, if not most, of the concerns that Ellis has about administrative tribunals in the rest of the country. Unfortunately, we are provided only partial indications, and not a comprehensive explanation, of what Quebec has accomplished in reforming its administrative law system. We are offered not even a hint of how it came to be that the Quebec government managed to recognize and act upon the rule of law crisis described by Ellis, which the rest of the country seems content to ignore. For a book as stridently reform oriented as Unjust by Design, that seems a curious and frustrating omission.

The issues addressed in Unjust by Design are of critical, although largely unappreciated, importance. Ron Ellis faced a significant challenge of persuasion: the tediousness of administrative law is dangerous because it can mask significant injustice. The matters dealt with by administrative tribunals are rarely of the type that elicit much concern from those not directly involved. They are the quotidian and the banal: disputes over rent and damage to a rented apartment; a few hundred dollars a month in disputed disability payments from the government; the compensation to which a victim of crime is entitled; a workplace injury that renders someone unemployable. But precisely because these are the workaday issues of our society, it is critical that they not be ignored and left subject to a decision-making system so bereft of basic elements consistent with the rule of law that their validity is rendered questionable.

I am left hoping that Ellis will have the energy to pen or contribute to another book, consisting of much the same material as is found in Unjust By Design, but presented in a manner accessible to lay readers and capable of concretizing their concerns and firing their sense of aggrievement. The delivery of justice is not an accounting process, but small injustices have a tendency to accumulate and can eventually have systemic consequences. It is better to heed the message of Unjust by Design sooner than later.