Improving Administrative Justice in Manitoba
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Manitoba Law Reform Commission 432-405 Broadway, Winnipeg, Manitoba, R3C 3L6 T 204 945-2896 F 204 948-2184 Email: [email protected] http://www.gov.mb.ca/justice/mlrc IMPROVING ADMINISTRATIVE JUSTICE IN MANITOBA: STARTING WITH THE APPOINTMENTS PROCESS Report #121 November 2009 Library and Archives Canada Cataloguing in Publication Manitoba. Law Reform Commission Improving administrative justice in Manitoba: starting with the appointments process. (Report; 121) Includes bibliographical references. ISBN 978-0-7711-1553-0 1. Administrative agencies -- Officials and employees -- Selection and appointment – Manitoba 2. Administrative agencies -- Officials and employees -- Selection and appointment -- Canada 3. Administrative agencies -- Canada 4. Administrative courts -- Officials and employees -- Selection and appointment – Canada 5. Executive advisory bodies -- Officials and employees -- Selection and appointment – Canada 6. Independent regulatory commissions -- Officials and employees -- Selection and appointment – Canada 7. Corporations, Government -- Officials and employees -- Selection and appointment – Canada 8. Civil service reform – Canada 9. Patronage, Political – Canada I. Title. II. Series: Report (Manitoba. Law Reform Commission); 121 KEM488.M36 2010 342.7127 0664 20109620003 Copies of the Commission’s Reports may be ordered from Statutory Publications, 20 - 200 Vaughan Street, Winnipeg, MB R3C 1T5; however, some of the Commission’s Reports are no longer in print. The Manitoba Law Reform Commission was established by The Law Reform Commission Act in 1970 and began functioning in 1971. Commissioners: Cameron Harvey, Q.C., President John C. Irvine Hon. Mr. Gerald O. Jewers Hon. Mr. Justice Perry Schulman Legal Counsel: Darlene Jonsson Leah Craven Administrator: Debra Floyd The Commission offices are located at 432-405 Broadway, Winnipeg, MB R3C 3L6 Tel: (204) 945-2896 Fax: (204) 948-2184 Email: [email protected] Website: http://gov.mb.ca/justice/mlrc The Manitoba Law Reform Commission is funded by grants from: The Government of Manitoba and The Manitoba Law Foundation TABLE OF CONTENTS Page # CHAPTER 1 - INTRODUCTION 1 A. OVERVIEW 1 B. SCOPE OF REPORT 5 C. TERMINOLOGY 6 D. ACKNOWLEDGEMENTS 6 CHAPTER 2 – PARTISANSHIP AND THE APPOINTMENTS PROCESS 7 A. GENERAL 7 B. CATEGORIES OF ADMINISTRATIVE BOARDS 10 1. Nature of a Board’s Function 10 (a) Adjudicative Tribunals 12 (b) Regulatory Boards 12 (c) Public Trust Agencies 12 (d) Corporate Enterprises 13 (e) Service Delivery Agencies 13 (f) Advisory Councils 14 C. CONCLUSION 14 CHAPTER 3 - OVERVIEW OF FORMAL AND INFORMAL APPOINTMENTS MECHANISMS 16 A. FORMAL MECHANISMS 16 1. Order in Council Appointments 16 2. Ministerial Appointments 17 3. Standing Committees 18 4. Conclusion 18 B. INFORMAL MECHANISMS 19 CHAPTER 4 - BOARD APPOINTMENTS POLICIES IN OTHER JURISDICTIONS 22 A. NOVA SCOTIA 22 1. History of Reform 22 2. Best Candidate Objective 23 3. Selection and Screening Criteria 24 (a) Adjudicative Boards 24 (b) Non-Adjudicative Boards 25 4. Accountability 26 5. Summary 27 B. BRITISH COLUMBIA 27 1. Review of Administrative Justice 27 2. The Administrative Justice Act 28 3. Appointment Guidelines 29 4. Summary 32 C. ONTARIO 32 1. History of Reform 32 2. The Public Appointments Secretariat 33 (a) Openness and Transparency 33 (b) Accountability 35 3. Summary 35 D. NEW BRUNSWICK 36 1. History of Reform 36 2. The New Appointments Policy 37 3. Summary 39 E. ALBERTA 40 1. History of Reform 40 2. Governance Framework 41 3. Summary 43 F. YUKON 43 G. PRINCE EDWARD ISLAND 44 H. NORTHWEST TERRITORIES 45 I. SASKATCHEWAN 46 J. NEWFOUNDLAND AND LABRADOR 47 K. NUNAVUT 48 L. MANITOBA 48 M. CANADA 50 1. History of Federal Appointments 50 2. The Public Appointments Commission 51 (a) The Federal Accountability Act 51 (b) The Public Appointments Commission Secretariat 52 (c) Federal Immigration and Refugee Board 53 3. Governor in Council Appointments 55 4. Summary 55 N. UNITED KINGDOM 56 O. CONCLUSION 58 CHAPTER 5 - ELEMENTS OF GOOD APPOINTMENTS POLICIES 60 A. OPENNESS AND TRANSPARENCY 60 B. ESTABLISHING MERIT-BASED CRITERIA 63 1. Reappointments 65 C. MINIMIZING PARTISAN INFLUENCES 68 D. ACCOUNTABILITY MECHANISMS 74 CHAPTER 6 – LIST OF RECOMMENDATIONS 78 EXECUTIVE SUMMARY 80 RÉSUMÉ 87 CHAPTER 1 INTRODUCTION A. OVERVIEW On the last day of the first session of the Manitoba Legislature in 1871, enabling legislation creating seven administrative boards or statutory delegates was passed.1 Maintenance of public order, health and safety was high on the list of legislative priorities with the establishment of the Bar Society, the Medical Board and the granting of disciplinary powers to the Chief of Police. Physical and social infrastructure planning and economic regulation were the other priorities. The Highway Commission was formed to make recommendations on where highways should go, the Board of Education was established, the Lieutenant-Governor in Council was given the authority to appoint licensors charged with granting licenses to carry on business (including liquor and gambling business licenses), and a regime was put in place to regulate ferry tolls. Manitoba now has about 160 administrative agencies, boards and commissions (often referred to as “ABCs”) that operate outside the line departments of government. About 1500 people have been appointed by the government to these boards as full or part time decision makers. The government relies on administrative boards to regulate and adjudicate, to give advice, to administer substantial financial and other assets, including Crown corporations and to provide goods and services. Some of the decisions now being made by administrative boards were formerly made by courts, others would have been made by departmental staff or by politicians and some by private actors, such as hospital boards. Other administrative boards are appointed to take on roles that emerge as governments assume regulatory functions. ABC decisions have a profound impact on our daily lives and include diverse decisions such as those related to human rights, residential tenancies, public utilities, worker compensation, agency review of mental competency or ability to drive a vehicle, liquor licensing, environmental protection and land use and compensation. By one estimate, in excess of one million rights-related decisions are made in Ontario each year by administrative boards.2 A recent study in Alberta described how that government had been transformed in the previous twenty years by a proliferation of administrative boards making regulatory, corporate and service 1 Statutes of Manitoba, 1871-1874 (34-38 Vict.) Chapters X, XI, XII, XIII, XX, XXVI, XXXI. 2 Administrative Justice Working Group (AJWG), Submission to the Ontario Law Reform Commission on Research Priorities (March 2007), online: <www.lawib.utoronto.ca/…/Administrative_Justice…/Law_Commission_%20AJWG_ Submission_%20final_form_%20March_15_%202007...>. In this submission, the Administrative Justice Working Group (AJWG) is self-described as an “ad hoc assemblage of Ontario administrative justice professionals who have come together in an effort to …optimiz[e] the fairness, independence, impartiality, competence and efficiency of the administrative justice system and its tribunals through non-partisan advocacy on behalf of that system.” The AJWG has been meeting since 2003. 1 delivery decisions. “About 50 percent of the Government of Alberta’s annual operating expenditures are now administered through the province’s agencies, boards and commissions.”3 Why have these responsibilities been diverted to administrative boards? One suggestion is because they “offer the prospect of an access-point to the state which projects an image of credibility precisely because the executive cannot directly interfere with how they allocate regulatory goods”.4 Administrative boards are used instead of courts, departmental staff or politicians to make decisions not only because they can make some decisions more efficiently and more openly by tailoring their processes to the decision at hand but, more importantly, because they are experts in the subject matter of the decisions with which they have been charged. Expertise is repeatedly stated by courts, politicians, lawyers and academics to be the raison d’être of administrative boards.5 Yet, the legislation setting up most administrative boards does not, in fact, set out specific qualifications for many positions nor does it mandate that a competency or merit-based approach be taken to appointments. A 2009 research study prepared in support of this report determined that there are almost 250 Order in Council appointments mandated by statute in Manitoba.6 Most of the provisions (164/250) governing these sections contain no direction whatsoever on the qualifications required for the position, stating simply that “the minister may appoint”. Almost all of the rest contain minimal qualifications such as a professional designation, “representative of the interests of the general public” or “interest in the problem of addiction”. 7 In spite of the need for public confidence in the independence and impartiality of administrative decision makers and the desirability of having certain decisions made by expert decision makers rather than generalist judges or politicians, governments across Canada have a 3 Neil McCrank, Linda Hohol, Allan Tupper, “At the Crossroads: The Report of the Board Governance Review Task Force” (1 October 2007), online: <http://www.alberta.ca/home/documents/At_a_Crossroads_-_screen.pdf>