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THE POLITICAL PROBLEM WITH THE ADMINISTRATIVE STATE
* MARK P. MANCINI
ABSTRACT. This paper argues that, in the administrative state, political controls (such as appointments and reappointments) are a desirable and necessary tool to subject administrative actors to accountability. The paper exhorts human rights advocates to accept some element of these controls (and the risk of abuse of these controls) in the administrative state, while focusing attention on problematic uses of delegated power: particularly, those uses of delegated power that undermine the overall statutory scheme.
KEYWORDS: administrative law, political control, delegation, administrative tribunals, independence, accountability.
* National Director, Runnymede Society. J.D., University of New Brunswick, LL.M., University of Chicago. 55 Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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I. INTRODUCTION
There is a tension1 in administrative law between the principles of political control2 and independence.3 On one hand, political control (power over appointments, reappointments, and other forms of control over tribunals and decision-makers) comes from the desire to subject all power, including delegated power, to the scrutiny of Parliament and therefore the people.4
1 Lorne Sossin, ‘The Uneasy Relationship between Independence and Appointments in Canadian Administrative Law’ in Grant Huscroft and Michael Taggart, eds, Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (Toronto University Press 2006) 50. 2 See Law Reform Commission of Canada, Political Control of Independent Administrative Agencies Study Paper (1979). 3 For the purposes of this paper, I distinguish, like the Supreme Court does, between “impartiality” and “independence”. I am concerned with the latter, as explicated by the Supreme Court in the context of judicial independence. See Valente v The Queen [1985] 2 SCR 673, 685: “…[independence] connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees”. See also generally, in the context of administrative tribunals, Canadian Pacific Ltd v Matsqui Indian Band (1995) 122 DLR (4th) 129. I explore the Valente and Matsqui independence principles below. See also Law Reform Commission of Canada, Independent Administrative Agencies Working Paper 25 (1980). 4 This is the upshot of the idea of responsible government. See A.H. Birch, Representative and Responsible Government (George Allen & Unwin Ltd 1964) 96: “The principle of legal responsibility extends to all acts of the Crown within the administrative jurisdiction of the minister’s department. This is the means for allocating legal responsibility for the state’s presence over its range of influence. Derived from this is the minister’s political responsibility to try to satisfy the House of Commons as to whatever subjects may interest the House in that portfolio. The minister is the ‘constitutional mouthpiece through which departmental actions will be defended or repudiated and from whom it is to be sought’”. See also Geoffrey Marshall & Graeme C Moodie, Some Problems of the Constitution (Hutchinson & Co, 1959)
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In 1980, for example, the Law Reform Commission wrote that because “our constitutional traditions stress the importance of retaining administrators under the supervision of responsible Ministers,”5 administrative authorities should “be established within departmental confines unless there are very good reasons for constituting them as independent agencies.”6 This admonition represents a desire to ensure that delegated law- making does not run afoul of basic democratic protections. On the other hand, there is clearly a desire to prioritize independence, particularly of adjudicative functions.7 While independence is a notoriously slippery concept in Canadian administrative law,8 and it is somewhat unclear in the jurisprudence, 9 the Supreme Court has recognized that agencies exercising adjudicative functions should have some
5 Independent Agencies (n 2) 74. 6 Ibid. 7 For this proposition in administrative agencies generally, see H.H. Janisch, ‘Independence of Administrative Tribunals in Canada: In Praise of Structural Heretics’ (1988) 8 J Nat’l Ass’n Admin L Judges 75, 79. 8 For attempts to deal with the problem, see e.g. Lorne Sossin, ‘The Puzzle of Independence for Administrative Bodies’ (2009) 26 NJCL 1; Lorne Sossin & Charles Smith, ‘The Politics of Transparency and Independence before Administrative Boards’ (2012) 75 Sask L Rev 13; Laverne Jacobs, ‘Tribunal Independence and Impartiality: Rethinking the Theory after Bell and Ocean Port Hotel—A Call for Empirical Analysis’; Laverne Jacobs, ‘A Wavering Commitment? Administrative Independence and Collaborative Governance in Ontario’s Adjudicative Tribunals Accountability Legislation’ (2010) Windsor Yearbook of Access to Justice 285, 294. 9 Jacobs (n 8) 294: “Administrative bodies are said to be “independent” because of the absence of close control over their decision-making by the executive branch of government. “Independence,” however, does not indicate a total lack of connection to the executive or legislative branches of government. On the contrary, administrative bodies usually have a designated Minister of Cabinet who is responsible for reporting on their activities to the legislature”. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
58 JOURNAL OF COMMONWEALTH LAW [Vol. 2 independence at common law.10 This is perhaps most true in the context of human rights decision-making, where statutes protecting human rights have a “quasi-constitutional” status.11 Indeed, the human rights tribunal arose as part of an entire mission to empower administrative actors, under the propositions that agencies could expertly and efficiently deal with social issues of broad importance in a fair manner. Accordingly, independence for these and other tribunals is seen as an unalloyed good; 12 for example, Sossin & Smith suggest that appointments should be made independently from government actors;13 and Justice Abella says that “human
10 Bell Canada v Canadian Telephone Employees Association 2003 SCC 36 [31]. This discussion shows that the Tribunal, though not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights. 11 Ibid. See also Canada (Human Rights Commission) v Simpsons-Sears Ltd. [1985] 2 SCR 321, 329. 12 Sarah Hamill, ‘The Alberta Liquor Control Board and the Question of Administrative Independence, 1924-1939’ (2016) 53 ALR 747, 753: “Clearly, the notion of independence had and still has some degree of cultural importance; independence is, after all, generally seen as an unqualified good”. Sossin, ‘Uneasy Relationship’ (n 1) 52: “Is there a compelling reason why someone coming before an adjudicative tribunal should enjoy fewer protections of decision-making impartiality and independence than someone coming before a court—especially since many tribunals have jurisdiction that once belonged to the courts?”; Murray Rankin, ‘Accountability of Administrative Tribunals: Does the Present Design Ensure Independence?’ in Governance of Public Institutions, Professions, Corporations, Tribunals and Courts: Ethics, Responsibility and Independence (CIAJ annual conference, La Malbaie, 2004), 2: “All administrative justice suffers if people that “the system” is stacked against them”. 13 Sossin & Smith (n 8) 51.
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2020] THE POLITICAL PROBLEM 59 rights” are the “heart of justice,” and a general norm of independence its “soul.” 14 But independence and political control are not equal values on a balancing scale. In fact, independence is merely a function of how much political control is exerted over particular agencies; and so political control is the dominant principle over independence. This is because (1) the administrative state is a creature of statute, limited by the terms of the enabling power; 15(2) administrative tribunals are formally, if uneasily,16 placed in the executive branch of government, “appointed and funded by the executive and…subject to executive-led procedures, practices and policies”17 and always subject to legislative override.18 The idea is that tribunals are under the control of political masters: executives exercising delegated power can control tribunals, for which control they are responsible. But the situation is not always so clear-cut. Indeed, sometimes, politicians can abridge delegated power not by infringing on
14 As cited by Nurjehan Mawani, ‘Issues of Independence, Accountability and Ethics facing Administrative Tribunals and the experiences of the Immigration and Refugee Board’ (The Council of Canadian Administrative Tribunals 1999 International Conference) 2-3. 15 See Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 [108]. For a classic statement of the “subordination” of administrative decision- makers (and by extension, executives) to law, see A.V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1885) 40. 16 Sossin takes a slightly different view: “I would argue that adjudicative tribunals similarly enjoy a distinctive and nuanced relationship with the political executive, based in part on the constitutional constraints imposed by the rule of law. In this sense, tribunals are neither an integrated part of a single executive whole, nor a headless fourth branch of government unaccountable to the executive”. Sossin, ‘Uneasy Relationship’ (n 1) 52. 17 Sossin & Smith (n 8) 51. 18 Ocean Port Hotel v British Columbia (General Manager, Liquor Control and Licensing Branch) 2001 SCC 52. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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“independence” generally, but by specifically running afoul of the limits on delegated power. This paper argues that this undermining of delegated power, rather than the lack of independence per se is the real political problem with the administrative state. Following this principle means that the only instances of political control that should concern human rights and independence advocates are those that are used to undermine accountability; to undermine a legislative delegation entrusted to the executive. Speaking of independence in the broad sense, then, is the wrong way to go about the problem. An executive can undermine delegated power with or without violating a general norm of independence. Instead, when executives undermine delegated power, they commit a core evil with which administrative law is concerned to prevent: the transgression of delegated limits.19 The overall goal, in line with this political problem, is to tightly confine executive discretion so it does not run counter to the purpose of the delegated power; broad delegations to the executive that permit such undermining should be disfavoured on this account. This paper is divided into three parts. In Part I, I explore the role of accountability and its relationship to independence in the administrative state. The goal here is to show that accountability, as a principle, is dominant over the independence principle; independence is abrogable. Executives are accountable to the legislature for the exercise of delegated powers over decision-makers. This means that this accountability relationship can be severed by an executive that
19 Vavilov (n 15) 108-110.
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2020] THE POLITICAL PROBLEM 61 fails to abide by limitations on discretionary power. This is the core political problem in the administrative state. In Part II, keeping this background in mind, I demonstrate the political problem in the administrative state: the idea that executives can undermine delegated power. To introduce this concept, I address two examples of putatively problematic political controls: the case of the Saskatchewan Labour Board in 2007 and the 2018-19 controversy over appointments to the Ontario Human Rights Tribunal, and distinguish between them from an accountability perspective. These cases set up a distinction between the use of political controls that further a legislative delegation, and a use (or misuse) of delegated power that undermines the legislative delegation. In the latter case, executives are not acting as faithful agents of delegated power, and by failing to do so, they violate the law governing the use of their political controls. This is the core political problem of the administrative state that requires a solution. In Part III, I canvass responses to the political problem. One response seeks to instantiate a general norm of independence in the administrative state by, among other things, disaggregating appointments from the government into an independent commission. This, I argue, is inconsistent with the idea of accountability. Instead, I suggest that the evil that should be protected against is the executive undermining of delegated power, because such undermining violates the terms of delegated power, the core problem at the centre of judicial review. To that end, I propose statutory amendments that deal with the Ontario Human Rights Tribunal example as a case where the executive may have acted contrary to legislative delegation; these should be the sorts of situations administrative law is designed to prevent. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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While I do not purport to square the circle of how to reconcile agency independence with political accountability,20 I do hope to bring some attention to the unavoidability of a general norm of political accountability. I argue that, if human rights advocates wish to protect tribunal independence, they cannot depend on the good-will of executive actors, like a previous generation of administrative law functionalists did;21 nor should they pursue the blunt instrument of legislative reforms designed to limit the legitimate role of the executive in having a say in the structure and function of administrative agencies.22 Instead, they should focus on protecting the scope of power delegated to tribunals so that the executive cannot subvert that lawfully delegated power.
II. ACCOUNTABILITY IN THE ADMINISTRATIVE STATE
The very existence of tribunals is part of a larger story about the delegation of power from Parliament and legislatures to executive actors. This sort of delegation is not necessarily problematic, because Parliament can easily control its delegated power through the convention of responsible government and
20 Some have said that this topic “defies resolution”: Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (University of Toronto Press 1985) 128. 21 Following the Hegelian line that people in the bureaucracy were “patriotic” and possessed a “disinterested ambition”: Hegel, Philosophy of Right (G Bell 1896) 191- 192. 22 Some of these reforms are explored in Ron Ellis, Unjust By Design (UBC Press 2013). Additionally, I characterize some of the reforms advanced by Sossin & Smith (n 8) in this category.
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2020] THE POLITICAL PROBLEM 63 the related norms of accountability and control.23 But when Parliament delegates power to a putatively independent tribunal, a new balance is struck. Because pure independence is not of the Westminster world,24 an awkward relationship is set out between the independent agency and its executive overseers.25 In this section, I first outline the basic constitutional principles animating delegation to administrative tribunals, highlighting the importance of political accountability and control. I then move on to discuss how the Supreme Court’s precedents support this general idea of accountability as the centerpiece of the law in this area. The core concept here is that with accountability as the driving norm in the administrative state, there is always a potential for an executive to abridge the law governing it: this is the core political problem in the administrative state.
23 See generally Benedict Sheehy & Don Feaver, ‘Re-Thinking Executive Control of and Accountability for the Agency’ 54 Osgoode Hall LJ 175, 183: defining accountability as “public accountability of the executive branch of government, within the institutions of representative democracies and ultimately to the electorate, for its use of power in the administration of the public good…” Parliament exercises control through the idea of ministerial accountability. 24 The Westminster tradition of Parliament refers to “a Parliament with effectively unified executive and legislative branches and the institution of ministerial responsibility”. See Arthurs (n 20) 185. 25 Ibid 177: “Agencification was done without attention to the founding principles of these constitutions, which sought to strike a balance between the exercise of control powers on the one hand and accountability obligations for the exercise of those powers on the other. Rather, the agency evolved organically as a solution to specific technical, economic, and logistical imperatives in distinct historical, political and legal contexts”. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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A. Delegation to Agencies and Accountability
Delegation to executive actors is not a new phenomenon. Despite Lord Hewart’s vigorous protestations,26 the tool of delegation was not unknown to the English legal tradition. While a broad history and account of delegated power is beyond the scope of this paper, since at least the time of Henry VIII,27 Parliament delegated power to executive actors. Some connect the tool of delegation to the idea of parliamentary sovereignty. As Parliament came into its own after the 1688 English Bill of Rights, and it was rendered supreme over the Crown,28 each delegation of power was a particular instantiation of the victory of Parliament over the Crown.29 Because it was Parliament’s choice to delegate power to executive actors, it could be Parliament’s choice to control and rescind that delegation. Overall, it is Parliament’s law that governs over executives and subordinates. This is the logic advanced by the Supreme Court of Canada when it was confronted with cases in which litigants made the argument that a particular delegation of power was an unconstitutional delegation of lawmaking power. In the
26 See Chief Justice Lord Hewart, The New Despotism (Ernest Benn Limited 1929). 27 See Rene Reyes, ‘Nondelegation Doctrine in Comparative Context: Britain’s Great Repeal Bill and The Shadow of Henry VIII’ U Penn L Rev 166 71, 78: norms surrounding delegation have been “developing at least since the reign of Henry VIII”. 28 Walter Bagehot, The English Constitution (Chapman & Hall 1867) 179: “The rule of Parliament was definitely established in 1688”. 29 C.T. Carr, Delegated Legislation: Three Lectures (CUP 1921) 48.
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2020] THE POLITICAL PROBLEM 65 famous cases,30 the Court held that there was no constitutional problem with Parliament delegating power away to the Cabinet or other executive actors because it retained ultimate control over the delegated power. In one of the most famous cases, Hodge,31 this was precisely because the legislature (in that case of the province of Ontario), was “supreme” in its own right, and could assert that supremacy through the tool of delegation. More specifically, Parliament is free to delegate broad powers to the executive. In turn, the executive must be accountable for the use of delegated powers. Accountability in the Westminster system is a system of Jeremy Waldron calls “agent accountability.”32 Normally, the executive is accountable, as an agent of Parliament, for the exercise of delegated statutory powers. The executive also cannot abridge the limits of delegated power as a faithful agent of Parliament; and when it does so, it abridges the basic accountability relationship. As recently noted by the UK Supreme Court in Miller No. 2, in assessing the lawfulness of a parliamentary prorogation, “…the policies of the executive
30 See In Re George Edwin Gray [1918] 57 SCR 150 (Fitzpatrick CJ): “Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government”; Reference As to the Validity of the Regulations in Relation to Chemicals Enacted by Order in Council and of an Order Of the Controller of Chemicals Made Pursuant Thereto [1943] SCR 1, 17-18 (Rinfret J): “The powers conferred upon the Governor in Council by the War Measures Act constitute a law-making authority, an authority to pass legislative enactments such as should be deemed necessary and advisable by reason of war; and when acting within those limits, the Governor in Council is vested with plenary powers of legislation as large and of the same nature as those of Parliament itself”; R v Furtney [1991] 3 SCR 89, 104: “There is no prohibition against delegating to any other body. The body of Parliament to delegate its legislative powers has been unquestioned, at least since the Chemicals Reference…” 31 Hodge v The Queen (1883) 9 App Cas 117. 32 Jeremy Waldron, Political Political Theory: Essays on Institutions (Harvard University Press 2016) 169. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
66 JOURNAL OF COMMONWEALTH LAW [Vol. 2 are subjected to considerations by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of power.”33 Put differently, the executive cannot undermine those powers, but it must faithfully execute them and account to the legislature for the exercise of powers. For that reason, the 1688 balance between accountability and control is important because of the values that it promotes; primarily, political control and accountability. These concepts concentrate political power (control) so that one can easily trace who is accountable for legislative power. When Parliament delegates power straight to a Minister, the recipients of the delegated power are strictly accountable for the exercise of that power in the House of Commons. The executives are subordinated to the law. Everyone—most importantly, the public—knows that a Minister with control over a particular department is politically responsible for what goes on in that department. Indeed, “without ministerial responsibility and prime ministerial control of the machinery of government, our Constitution will not work because the power of the state will not be subject to democratic control.”34 So it goes, the people control Parliament.35 Parliament controls the executive through the principle of responsible government. The courts, in some
33 R v Cherry and Miller [2019] UKSC 41 [46]. 34 Nicholas D’Ombrain, ‘Ministerial Responsibility and the Machinery of Government’ (2008) 50:2 Canadian Public Administration 195, 197 [D’Ombrain]; MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund 1967) 258. 35 See Burke’s Politics: Selected Writings and Speeches of Edmund Burke on Reform, Revolution and War, Ross Hoffman ed., (Alfred A. Knopf 1949) xxxi.
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2020] THE POLITICAL PROBLEM 67 cases, control the executive.36 All of this establishes the important principle of balance alluded to in the non-abdication cases, by merging control and accountability.37 In the 19th century, the convention of responsible government developed in Canada as the means by which Ministers were accountable to Parliament. The practical reality of a responsible government system is that members of Parliament—and more importantly the public—know that “there is one [person] to whom they may address their questions, who cannot evade the duty of answering them.”38 Through the means of Question Period, and in the modern era, the use of social media, the public can effectively keep tabs on problematic instances of executive action or delegated law- making. The political control associated with the idea of responsible government subjects the executive to ultimate democratic control, without which “our Constitution will not work.”39 Under this theory, Parliament cannot evade the strictures of the Constitution by simply delegating power away. Indeed, the method of “control and supervision” envisioned by the Supreme Court is responsible government: “final responsibility for the acts of the Executive rests upon Parliament. Parliament abolishes none of its powers, none of its control over the Executive, legal or constitutional.”40 But in Canada, like the US, the rise of the administrative state upset this balance between control and accountability.41 This is because Parliament began delegating legislative power
36 Vile (n 34) 254. 37 See Gray (n 30) 170. 38 Birch (n 4) 20. 39 D’Ombrain (n 34). 40 Chemicals Reference (n 30) 12. 41 Sheehy & Feaver (n 23) 197. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
68 JOURNAL OF COMMONWEALTH LAW [Vol. 2 to agencies that, while formally part of the executive branch, do not find an easy fit in the existing structures of government,42 and are only “marginally under the control of [their] political masters…”43And so, a different set of problems arises when Parliament wishes to create an independent agency insulated from political control. In the extreme case, if an agency is created to make laws with full independence from Parliament and Ministers, Parliament has created an island of power that finds no connection back to the people. In such a case, no one is strictly politically accountable for the exercise of lawmaking power, because Ministers are only “answerable”—but not accountable—for the lawmaking activities of independent agencies. Principally, this divides control and accountability from their typically merged structure to an “unacceptable degree.”44 Parliament cannot exercise control over Ministers in relation to delegated legislative power exercised by agencies, because Ministers are not responsible for those delegated legislative powers. For Parliament to countenance such a situation, it must retain actual control over those it empowers to create laws, in order to maintain the constitutional balance. Put differently, Parliament should not be able to do indirectly what it cannot do directly. This is already an established principle of law when it
42 Ibid 177: “Agencification was done without attention to the founding principles of these constitutions, which sought to strike a balance between the exercise of control powers on the one hand and accountability obligations for the exercise of those powers on the other. Rather, the agency evolved organically as a solution to specific technical, economic, and logistical imperatives in distinct historical, political and legal contexts”. 43 Vile (n 34) 399. 44 Sheehy & Feaver (n 23) 197.
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2020] THE POLITICAL PROBLEM 69 comes to delegation. Parliament cannot, for example, delegate power to the executive to breach the Constitution; this is because Parliament itself cannot unjustifiably breach the Charter.45 The principle should be no different in the context of independent agencies, if the constitutional rule is to apply to Parliament with the same force in every context and if “[t]he Constitution is not to be mocked by substituting executive for legislative interference with freedom.”46 Ultimately, the goal is to ensure that all functions of government are subject to legislative control, with the creation of a focal point for democratic accountability. Pushed too far, the goal of separating accountability and control47 by delegating to an independent agency upsets the balance in the English system and diverts democratic accountability away from Ministers. The bottom line of this is that the constitutional principles underlying delegation insist on some baseline level of control over administrative decision-makers. Administrative decision-makers and executives must ultimately be subordinate to the law governing them;48 and executives must faithfully execute the law.
45 Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624 [21], quoting Peter Hogg, Constitutional Law of Canada (3rd ed 1992), vol 1, 34-8.3 and 34-9: “Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority”. 46 James v Cown [1932] A.C. 542, 558 (Lord Atkin). 47 Sheehy & Feaver (n 23) 178. 48 Dicey (n 15) 40. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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B. Independence
There is another principle that is said to define the relationship between Parliament, the executive, and administrative actors; independence. As noted above, independence of adjudicative functions is seen as a primary good of administrative decision-making. But as I will show below, independence is an abrogable principle; the real problem, as I will note, is when an executive undermines delegated power, not necessarily when she abridges a notion of “independence.” It is important to state at the outset that independence in Canadian administrative law is a complex concept. The starting point is a “partial and patchwork quilt” of common law and “quasi-constitutional” protections associated with a general norm of independence.49 While these principles have a constitutional character in the context of judicial independence,50 they have been adapted by the Supreme Court in the context of administrative tribunals.51 In absence of clear legislative language—or where “legislation can[not] be reasonably and clearly interpreted”52—these common law requirements can supplement silent or incomplete statutes. The essential features of judicial independence include, as is well known, include security of tenure, financial security, and
49 Gerald Heckman & Lorne Sossin, ‘How Do Canadian Administrative Law Protections Measure Up to International Human Rights Standards? The Case of Independence’ (2005) 50 McGill LJ 193, 234. 50 See Valente (n 3). 51 Matsqui (n 3). See also International Woodworkers of America, Local 2-69 v Consolidated-Bathurst Packaging Ltd. [1990] SCR 282, 332-33. 52 Keen v Canada (Attorney General) 2009 FC 353 [68].
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2020] THE POLITICAL PROBLEM 71 administrative independence. In Matsqui, Chief Justice Lamer53 wrote that the principles associated with judicial independence apply as “part of the rules of natural justice even in the absence of constitutional protection.”54 These principles together describe the norm of “institutional independence,”55 which at common law are applicable in administrative contexts. Independence can also vary based on the decision- maker. For example, human rights tribunals are, at a certain level, a sui generis sort of administrative decision-maker. This point was made in Bell Canada,56 in which the institutional independence of the Canadian Human Rights Tribunal was at issue. Specifically, the question was whether the Canadian Human Rights Commission could issue guidelines to the Tribunal about “a class of cases,” “and the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.”57 Chief Justice McLachlin and Justice Bastarache concluded for the Court that the Human Rights Tribunal should have “a high degree of independence from the executive branch.”58 This is because the “Tribunal functions in much the same way as a court…”59 and is primarily adjudicative in nature.60 In each case, the inquiry is focused on “what combination of functions the legislature intended the tribunal
53 Heckman & Sossin (n 49) 235: “While Justice Sopinka appeared to write for the greatest number of judges on this point, it is Chief Justice Lamer’s decision that has become the dominant articulation of institutional independence in Canada”. 54 Matsqui (n 3) [79]. 55 Ibid [83-84]. 56 Bell (n 10). 57 Ibid [1]. 58 Ibid [24]. 59 Ibid. 60 Ibid [23]. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
72 JOURNAL OF COMMONWEALTH LAW [Vol. 2 to serve, and what procedural protections are appropriate for a body that has these particular functions.”61 Notwithstanding this largely functional analysis that is seemingly designed to protect the independence of human rights tribunals, the Court ultimately concluded in Bell that the exercise of the guideline power did not impact the independence or impartiality of the Tribunal, 62 because it was a form of law “akin to regulations” 63and because the guideline power was “constrained.”64 While it might be tempting to think that Bell establishes that independence dominates accountability in Canadian administrative law, fundamentally independence is abrogable, consistent with the general idea of political accountability. The holding illustrates that there are no real constitutional constraints on the ability of Parliament to abrogate the independence of tribunals, even adjudicative tribunals, no matter the strength of substantive or pragmatic reasons to delegate to the tribunal in the first place.65 Put differently, Parliament can delegate the power to the executive to abrogate a broader notion of independence, because control always supercedes independence. This principle was most clearly set forth in Ocean Port, which Bell does not change. In the case, a litigant made the
61 Ibid [22]. 62 Ibid [37-38]. 63 Ibid [37]. 64 Ibid [50]. 65 David J Mullan, ‘Ocean Port Hotel and Statutory Compromises of Tribunal Independence’ (2002) 9 Can Labour & Emp LJ 193, 195: “Absent a constitutional justification, however, there is no warrant for courts to ignore provisions in statutes which in effect exclude any common law prescription of the need for independence or, for that matter, impartiality”.
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2020] THE POLITICAL PROBLEM 73 argument that principles of judicial independence were strictly applicable in the context of administrative decision-making, relying on the PEI Judges Reference for the proposition that judicial independence protections applied outside the context of judges who have the protections of ss.96-101 of the Constitution Act, 1867.66 Chief Justice McLachlin ultimately rejected this argument because legislatures may oust any common law protections afforded to members of tribunals.67 This was because agencies have a “primary policy-making function” that is designed to specifically implement government policy; and for that reason, “it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.”68 Some have suggested that Ocean Port might be read as being applicable only to agencies with a “primary policy- making function,” rather than adjudicative bodies.69 That is, Ocean Port insists that legislatures and the executive are the primary controllers of the administrative state; but this conclusion might be tempered when we consider a desire for independence when an adjudicative body is at issue. While it is difficult to tell what the Court would do with Ocean Port in the modern day, fundamental principles work against this putative division between “policy-making” and “adjudicative” bodies.
66 See Ref re Remuneration of Judges of the Prov. Court of PEI [1997] 3 SCR 3. 67 Ocean Port (n 18) [22]. 68 Ibid [24]. 69 Ellis (n 22) 224. Ellis generally argues that Ocean Port only applies to so- called policy-making or regulatory bodies, not adjudicative bodies. But when power is delegated to various administrative actors, that delegation need not distinguish between types of decision-makers. The distinction between adjudicative versus policymaking is an external categorization that does not necessarily arise in the context of delegated power itself. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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This distinction is not endemic to administrative power. In fact, whether the body is policy-making or adjudicative, it runs on the same fuel: delegation is the “dynamo” of modern government.70 If that is the case, then the same concerns obtain with delegated power no matter its end-manifestation. The political requirement of control exists in both cases. Even if a body is adjudicative, it is still designed to effect government policy, and it is still an importantly political project. Therefore, the distinction between policy-making and adjudicative bodies is something that is external to the nature of delegated power and its conditions for control. In either sense, political control remains a constitutional necessity. Before moving to the next section, it is necessary to address a major criticism that could be made against the perspective offered thus far. That is, one can argue that the principle of accountability is a largely chimeric legal principle that does not speak to the way the state actually operates. Scholars as eminent as David Mullan have suggested that the accountability function of traditional constitutional arrangements is overstated. For example, Mullan has suggested that tribunals, as the “fourth arm of government,”71 should not be evaluated against some “specious constitutional model”72 ; rather, they should be assessed according to their function. In comparison, to Mullan, “[a]ny theory of accountability based on
70 Louis L Jaffe, Judicial Control of Administrative Action 33 (1965). 71 David J Mullan, ‘Administrative Tribunals: Their Evolution in Canada from 1945 to 1984,’ in Ivan Bernier and Andree Lajoie, Regulations, Crown Corporations and Administrative Tribunals (University of Toronto Press 1985) 155. 72 Judith McCormack, ‘The Price of Administrative Justice’ (1998) 6 CLELJ 1, 32.
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2020] THE POLITICAL PROBLEM 75 the electoral process and the answerability of Cabinet and individual ministers in Parliament is almost completely divorced from the realities of present-day Canadian political life.”73 And to some, tribunals even offer enhanced opportunities for accountability.74 If all of this is true, it is not a foregone conclusion that accountability must be served through the traditional use of political controls. But it is not evidently true that responsible government and political accountability are unknown concepts to modern public life. Nicholas D’Ombrain, for example, argues that “without ministerial responsibility and prime ministerial control of the machinery of government, our Constitution will not work because the power of the state will not be subject to democratic control.”75 The Supreme Court has confirmed that democratic accountability is the lifeblood of the Constitution, stretching back to the Magna Carta and the English Bill of Rights.76 Indeed, in discussing the normative content of the principle of the Rule of Law, the Court has confirmed that the accountability of government to the people means that the people have a final say over legislation that may be unfair.77 This is no small thing. As McCormack notes: No matter how unresponsive, how secretive and how hide-bound a government may be, no matter how insular and inaccessible our actual electoral process is, there is at least the
73 Mullan (n 71) 179. 74 McCormack (n 72) 33: “Not only are Parliament and Cabinet not particularly responsive in this sense, but the role of tribunals in providing forums for public participation stands in contrast to the confidentiality of many government decisions”. 75 D’Ombrain (n 34) 197; Vile (n 34) 258. 76 Reference re Secession of Quebec [1998] 2 SCR 217 [63]. 77 British Columbia v Imperial Tobacco Canada Ltd. 2005 SCC 49 [66]. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
76 JOURNAL OF COMMONWEALTH LAW [Vol. 2 possibility that a government can be removed from power through that process, a possibility that would not exist for tribunal adjudicators with the tenure of judges.78 It is also hard to say that responsible government does not organize the incentives of actors in the system, such that it prevents ministerial actors from acting in certain ways that they otherwise would without the stick of responsible government.79 Responsible government could work in distinct circumstances; and even if it does not work in every case, it is still a necessary condition for the democratic organization of the state, particularly when it comes to the issue of delegation. Put this way, without responsible government, we might be worse off than with it. Connectedly, those like Mullan who attack the democratic principle as underpowered offer no substantive alternative. In the argument from independence, there is a focus on liberating administrative actors from the control of politicians. But there is comparatively little in the argument that shows how accountability remains a valid principle under the independence rubric. Constitutionally, this is a flaw in the independence argument. Put together, these arguments point to a conclusion: accountability is a necessary but not necessarily sufficient condition for the functioning of the democratic state; even if the principle operates in the background and does not always work ideally. But even with that admission, there are examples of
78 McCormack (n 72) [34]. 79 Matthew Palmer, ‘Towards an Economics of Comparative Political Organization: Examining Ministerial Responsibility’ (1995) 11 JLEO 164, 175.
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2020] THE POLITICAL PROBLEM 77 opposition parties holding governments to account for the work of tribunals under their supervision.
II. THE POLITICAL PROBLEM DEMONSTRATED
Thus far, I have argued that accountability and political control, are important parts of the Westminster system of government; more than that, these principles necessarily take precedence over independence as a general pragmatic norm, at least formally. But this is not the typical way in which independence and accountability in the administrative state are conceived. Indeed, many have written about the ways in which political controls can be abused in the administrative state, from the perspective of independence.80 So this argument goes, the exercise of political controls that operates to abridge a tribunal or decision-maker’s independence is still wrong from a legal perspective. But not all exercises of political controls are necessarily legally problematic even if they abridge a tribunal’s independence. This is because accountability, not independence, is the organizing principle of the exercise of delegated power. Put differently, even if an exercise of political controls abridges a tribunal’s independence, it may not undermine the accountability relationship between the legislatures and the executive. The only legally problematic uses of political controls are those that undermine law; those that are unjustified by an executive’s enabling statute. These undermine accountability by permitting the executive to act beyond the limits of the legislature’s law; the executive no longer acts as a faithful agent of Parliamentary will.
80 See, most notably, Ellis (n 22). Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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In this sense, there are two sorts of examples that one could offer to demonstrate this point. One could point to examples where the government exercised political controls that arguably undermined a general norm of independence while upholding accountability relationships by respecting the law; and one could point to examples where independence is at risk from an exercise of political controls, but the real problem lies in the undermining of accountability relationships. The former is not problematic; the latter is. For an example of the former, take the example of the Saskatchewan Labour Board. In Saskatchewan Federation of Labour v Government of Saskatchewan,81 a statute (the Interpretation Act, 1995) permitted a newly elected government to restaff administrative agencies by dismissing existing members. In 2007, the Saskatchewan Party won a majority of seats in the Legislative Assembly of Saskatchewan, under the leadership of Brad Wall. In the wake of this victory the newly appointed Wall government began to pursue a particular labour relations agenda. In order to achieve that agenda, the Cabinet passed an order-in-council terminating the chairperson and vice-chairpersons of the provincial labour board and appointing a new chairperson. This desire for new adjudicators was driven by the new government’s agenda: The government, consistent with the position taken by the Saskatchewan Party before and during the election, had introduced or was about to introduce significant changes to Saskatchewan’s labour relations legislation and considered it desirable, therefore, to appoint a new chairperson to ensure the
81 Saskatchewan Federation of Labour v Government of Saskatchewan 2013 SKCA 61.
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2020] THE POLITICAL PROBLEM 79 new legislation would be interpreted and applied in keeping with the policy choices reflected in the changes. In short, the government saw the matter as one of confidence in the Board to further these policy choices in accordance with their intent.82 In a previous case, the Saskatchewan Court of Appeal concluded on statutory grounds that the Cabinet was empowered by law, and did not abuse that power, by firing the chair and vice-chairs.83 In the case at issue here, the Court reaffirmed the idea that while the relevant statutory background “confer a significant measure of independence and impartiality in the Board”84 and the common law also supplemented this statutory background,85 it was “open to the Legislature to provide otherwise.”86 And so the Court found no constitutional reason to override the Interpretation Act, 1995.87 So, as the Court mentioned in the Saskatchewan Federation of Labour case, there is no general administrative law impediment, from a perspective of independence, to a new executive wishing to imprint its policy choices on adjudicative and policy-making decision-makers. 88 Here, the Saskatchewan
82 Ibid [12]. 83 See generally Saskatchewan Federation of Labour et al v Saskatchewan (Attorney General) 2010 SKCA 27. 84 Saskatchewan Federation of Labour (n 81) [32]. 85 Ibid [26]. 86 Ibid. 87 Ibid [53]. 88 Ibid [16]: “It also comports with long standing practice borne of a desire by successive Saskatchewan governments to ensure that their policy choices in the often contentious field of labour relations are realized in accordance with the intent of the legislation embodying those choices. These choices may on occasion be weighted in one way or another, having regard for the particular mix of social and economic policy considerations they reflect. Hence, they are seldom free of controversy, as they were in this instance”. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
80 JOURNAL OF COMMONWEALTH LAW [Vol. 2 government exercised lawfully delegated political controls over tribunals in a way that upheld the general text, context, and purpose of the delegating legislation. From a legal accountability perspective, there is no issue here, even if one might think that the decision-making independence of the Saskatchewan Labour Board was compromised. Another example presents a different problem; one that arguably undermines the accountability relationship between legislature and executive by enabling the executive to violate the law. In late 2018 and early 2019, news articles began reporting that the Ontario Human Rights Tribunal was experiencing shortages and delays because of a dearth of adjudicators.89 A notice was posted on the Tribunal website to this effect.90 Under the Ontario Human Rights Code, the Tribunal “shall” be composed of members appointed by the Lieutenant Governor in Council. In order to meet this legislative mandate, the Ministry of the Attorney General noted that a “recruitment process” was underway, but that there was no definite timeline in place to fill the vacancies.91 Human rights lawyers were understandably upset about the delays. Janina Fogels, senior legal counsel at the Human Rights Legal Support Centre, said the following in a Toronto Star article:
89 Paola Loriggio, ‘Shortage of adjudicators delaying Ontario human rights cases: lawyers’ (The Canadian Press, 11 January 2019)
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2020] THE POLITICAL PROBLEM 81
We’re definitely concerned about the impact on the claimants who are hoping for a timely resolution to the discrimination they’ve experienced . . . We’re concerned when any dispute resolution system is backlogged but especially one that affects people’s dignity, their livelihood, their ability to get on with their lives.92 But there was at least some reason to believe that these delays were not a result of simple inability to make appointments in time. Opposition politicians charged that the Ontario government “refused” to make appointments to the Tribunal. Indeed, the context of the entire argument was that “…given other actions taken by the Conservatives since they came into office, there is reason to worry about what this delay means, and about the obstruction of human rights that it causes.”93 The implication was that the new Ontario government was starving the Ontario Human Rights Tribunal of the resources necessary to achieve the mandate human rights advocates thought it should. If the allegation is true, and the use of appointments and reappointments were designed to control the way the tribunal operates, there could be a problem from an accountability perspective. Indeed, the appointments issue is the most susceptible to political control by the executive. Ron Ellis argues that reappointments are a particularly arbitrary field of endeavour for members of the executive.94 This was the basic
92 Paola Loriggio, ‘Delays at Ontario human rights tribunal could undermine cases, say lawyers’ (The Toronto Star, 11 January 2019)
82 JOURNAL OF COMMONWEALTH LAW [Vol. 2 contention against the Minister of Justice and Attorney General, Caroline Mulroney. At the beginning of January 2019, it was reported by the Canadian Human Rights Reporter that “eight of the 18 full-time members of the Tribunal” had appointments that were due to expire.95 At that time, “no new appointments, or re-appointments of existing members, have been made.”96 One could argue that both the Saskatchewan and Ontario cases present a problem from the perspective of independence. And this might be true. But this is not a valid basis to impugn the legality (and perhaps even propriety) of the exercise of political controls. Indeed, one should make a clear distinction between the types of controls at play and the sort of action the executive took in each case. In the Saskatchewan case, what the Court had to deal with was a delegation of power to do exactly what the government did: restaff the tribunal. This is, as mentioned above, an unusual delegation. But it is a delegation of power for which the executive can be held accountable in Parliament, and the exercise of the political control is consistent with the delegated grant of power. In this sense, the executive’s actions furthered the delegated appointment power, rather than undermining it. On the other hand, in the Ontario case, something else was afoot. The delegation in that case was to the Cabinet, who “shall” make appointments under the statute. But the Ministry of the Attorney General, and by extension the Cabinet, failed to appoint members. If it is true that the failure was due to the fact that the government wanted to starve the Tribunal, this is
95 Human Rights Reporter (n 93). 96 Ibid.
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2020] THE POLITICAL PROBLEM 83 contrary to the general legislative scheme as a whole, and the purpose of the delegating statute in particular, which implicitly assumes that a Tribunal will be established with appointed members. This undermines the delegation because it abridges the purpose of the legislation animating the use of political controls. In the Saskatchewan case, therefore, there is a clear delegation of legislative power at play that nourished the executive’s actions. In the Ontario case, the executive arguably failed to live up to the delegated power that was given to it by the Legislature. The purpose of these examples is to offer a distinction. In both cases, the “independence” of the tribunals broadly construed was arguably at risk. But the core problem in each case was different. In the Saskatchewan case, the Cabinet merely did what the law allowed it to do. In the Ontario case, the Minister, if the allegations are true, undermined the delegated power by failing to supply enough members for the Tribunal to operate. This latter case should be the focus of any reform efforts.
III. RESPONDING TO THE POLITICAL PROBLEM
An observer might balk at the distinction and argue that both cases, noted above, are problematic from an independence perspective. Indeed, independence is still considered a virtue in Canadian law, even if it is an abrogable legal principle. This is true even if independent administrative tribunals do not easily fit into the constitutional structure—they have been described by one observer as “structural heretics.”97 Despite the way we
97 J.M. Hodgetts, Pioneer Public Service: An Administrative History of the United Canadas, 1841-1867 (University of Toronto Press 1973) 143-147. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
84 JOURNAL OF COMMONWEALTH LAW [Vol. 2 talk about independence, any desire for it is necessarily subject to other constitutional principles because independence “do[es] not serve a constitutional purpose.”98 However, because independence is still considered a virtue, both historically and currently, there are understandable attempts by those sympathetic to the aims of administrative tribunals to instantiate a general norm of independence, through constitutional or statutory means. In this section, I outline two ways to deal with the political problem of the administrative state: the potential for executives to undermine delegated power. The first, which I call the “objection from independence,” builds on the idea of independence as an unalloyed good in the administrative state, and supports broad institutional mechanisms to instantiate the ideal. The question posed is usually: how do we maximize independence?99 Then, I focus on the second way to respond to the abuse: what I call the “statutory scheme” response. The idea is that we should be concerned about independence only to the extent that it is required to protect a tribunal from an executive unlawfully undermining its delegated power in a statutory scheme. This second response defeats the objection from independence.
A. The Objection from Independence
As a general norm, independence was a major motivating factor to create tribunals in the first place. In the
98 J Paul Lordon, ‘The Independence of Administrative Tribunals: Checking Out the Elephant’ (1996) 45 UNB LJ 123, 124. 99 Lorne Sossin, ‘Future of Administrative Justice’ (2001) 21 CJALP 192, 204.
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2020] THE POLITICAL PROBLEM 85 early days of administrative delegation, substantive reasons motivated a desire for independent decision-making. The central element involves a decidedly unapologetic progressive agenda, erected by realist scholars in the 1930s against the supposed individualism of the common law and its judges. Administrative law functionalist scholars like John Willis,100 WPM Kennedy,101 and J.A. Corry102 saw the creation of administrative tribunals as part of a broader project to achieve substantive policy goals. For example, Kennedy said: New standards must be developed in all fields of human endeavor which will be in harmony with the new social philosophy of the age. Care of the sick, the poor, the aged, and the infirm, elimination of slums, control of industry in the interests of humanity, protection of children, universal education, development of natural resources for the benefit of mankind, all demand immediate attention.103 For Kennedy, “administrative agencies served as experimental laboratories in achieving these goals.104 The contrast—rule by courts—was undesirable to the administrative law “functionalists.” The courts were responsible for stunting growth of the welfare state, in the view of the functionalists, and for championing an ideology of
100 See John Willis, ‘The McRuer Report: Lawyers’ Values and Civil Servants’ Values’ (1968) 18 UTLJ 351. 101 WPM Kennedy, ‘Aspects of Administrative Law in Canada’ (1934) 46 Juridical Review 203. 102 J.A. Corry, ‘Administrative Law and the Interpretation of Statutes’ (1936) 1:2 UTLJ 286. 103 Kennedy (n 101) 251. 104 Blake Brown, ‘The Canadian Legal Realists and Administrative Law Scholarship, 1930-1941’ (2000) 9 Dalhousie LJ 36. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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“laissez-faire.” 105They argued that this worldview was ill- suited to the necessities of the modern economy, and the expansion of collective rights, like human rights. 106 The means chosen to achieve these substantive goals— the administrative state and delegation—were also motivated by pragmatic concerns.107 The most important pragmatic justification for our purposes is the desire for independent decision-making. In the world imagined by the administrative law functionalists, a welfare state government would play a greater role in regulating industry. That regulation requires “impartiality” because regulated parties do not want to be subject to whims of shifting political majorities. The idea for the functionalists was that decision-makers would be “free of departmental control and possess security of tenure.”108 Indeed, functionalists saw independence as an absolute good, connected to the substantive goals of the people adjudicating disputes.109 The basic concept here is that independence needed
105 Ibid 65: The first trend was the vicious attack launched against nineteenth century liberalism and its related ideas about the individual and the laissez-faire economy. 106 Willis, for example, spoke ill of lawyers, who he thought stood in the way of progressive bureaucrats: Willis (n 100) 353. 107 See R.C.B Risk, ‘The Many Minds of W.P.M. Kennedy’ (1998) 48 UTLJ 353, 366: “The standard for designing and assessing laws was essentially functional: had they achieved their social ends?” 108 Brown (n 104) 50. 109 James Landis, The Administrative Process (Yale University Press 1938) 28.
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2020] THE POLITICAL PROBLEM 87 to be prioritized, or at least substantively valued, in administrative decision-making.110 Human rights tribunals are a good example of the pragmatic and substantive justifications for delegation that motivated the functionalists. On the substantive side, human rights tribunals are clearly a part of the social welfare agenda that emerged and the pre-and-post World War II eras, described by the functionalist scholars. They, too, reacted to traditional “conservative” impulses, particular ideals of individualism and laissez-faire, championed by common law judges.111Under traditional causes of action in Canada, those seeking vindication for alleged violations of various protected grounds of human rights at common law were disappointed. Put simply, “[t]he judiciary and the common law had been tried and found wanting.”112 Legislators picked up the mantle, under the new rights-consciousness mindset of the post-war period.113 And, soon, it became apparent that rights protected in human rights statutes are “special and distinct” from any other rights.114
110 Janisch (n 7) 96: “As both Eastman and Landis recognized, if you wish to have independence of judgment, you have to create conditions in which independence of thought will thrive. You cannot have one without the other”. 111 Justice Rosalie Abella, ‘Foreword’ (2012) 1 Can J Hum Rts 1: [The judiciary] tended to submerge the development of human rights under what were seen to be the overriding demands of commerce or the constitutional division of powers”. 112 I.A. Hunter, ‘Human Rights Legislation in Canada: Its Origin, Development, and Interpretation’ (1976) 15 UWO L Rev 21. 113 See Ontario (Human Rights Commission) v Simpsons-Sears Ltd. [1985] 2 SCR4 536 321, 329. 114 Karen Schucher, ‘A Further Diminishing of the Role of Human Rights Tribunals: Cooper v Canadian Human Rights Commission—Bell v Canadian Human Rights Commission’ (1997) 5 Canadian Lab & Emp LJ 173. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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Human rights tribunals, designed to be independent,115 exist to support this goal. Human rights bodies are arms-length from the government precisely because governments and courts were seen as unable to adequately respond to the social needs of marginalized populations, in concert with the substantive reason for delegation advanced by the functionalists. To this extent, independence is seen as a virtue of the Canadian human rights law regime that should be protected, 116 and as a broader part of the international human rights law movement.117 In this sense, modern administrative law scholarship still lives in the thrall of the functionalist justification for administrative delegation. Many scholars start from a different position: that there is a high risk of interference in the administrative state and that administrators should be protected through independence guarantees.118 Countless papers and reports make the case that independence is a distinct and integral part of the human rights system and administrative justice more generally. DesRosiers argues that
115 Ontario Human Rights Commission, Discussion Paper: Reviewing Ontario’s Human Rights System
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2020] THE POLITICAL PROBLEM 89 we require an “administrative model” of independence suited to the “nature and role of administrative tribunals.”119 The model is designed to protect tribunals qua tribunals. Hamill notes that most administrative law scholarship views independence as an “unalloyed good.”120 Heckman and Sossin conclude that independence should be prioritized over accountability concerns, given the other ways in which the executive can control agencies.121 More specifically, Rankin describes three “goods” associated with independence:122 Independence provides decision-makers with some degree of insulation from political factors that might otherwise stall progress in developing administrative law. Independence will produce higher-quality decisions. Independence will protect the appearance and reality of impartiality. These goods, so the story goes, are even more potent in the human rights context, 123 and presumably should be prioritized over accountability concerns. In line with these general comments about independence, some scholarship offers distinct reform proposals that prioritize independence as a constitutional matter. Ron Ellis’ book, Unjust By Design, is largely based around this idea. When it comes to the specific problem of reappointments, which I deal with below, Ellis argues that
119 Nathalie DesRosiers, ‘Toward an Administrative Model of Independence and Accountability for Statutory Tribunals’ in Madam Justice Gene Ann Smith & Helene Dumont (eds), Justice to Order: Adjustment to Changing Demands and Co- ordination Issues in the Justice System in Canada (Themis 1999) 55. 120 Hamill (n 12). 121 Heckman & Sossin (n 49) 68. 122 Rankin (n 12) 1-2. 123 Ibid. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
90 JOURNAL OF COMMONWEALTH LAW [Vol. 2 ministerial discretion should be limited, calling the existing state of affairs “[a] shameful blot on Canada’s justice system….”124 Ellis also suggests an administrative bill of rights, which would instantiate a general constitutional principle of independence,125 while prohibiting patronage appointments.126 The bill of rights would also institute a general independent governing council “with oversight responsibilities for the administrative justice system…”127 The independent governing council would supervise “the discharge of members or chairs for cause, and of the non-renewal of members or chairs for failure to meet standards.”128 The governing council, more specifically, would have a number of functions, consisting of rights of prior approval over, among other things: The accountability relationships and operational context respecting any person or institution that the government proposed be empowered to exercise a judicial function as defined in the Administrative Justice Bill of Rights The terms of reference, processes, protocols, and standards governing the reappointment or non-reappointment of incumbent judicial tribunal adjudicators and chairs. The structural design and operational plans and the constitutive legislation for new or reconfigured judicial tribunals, and of the disposition or reassignment of adjudicators
124 Ellis (n 22) 263. 125 Ibid 234. 126 Ibid 266. 127 Ibid 235. 128 Ibid 235.
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2020] THE POLITICAL PROBLEM 91 or chairs whose positions have been affected by any reconfiguration or discontinuation of a judicial tribunal.129 Ellis’ proposal amounts to a complete redesign of the accountability relationships between Ministers and tribunals, with the insertion of a new independent body with wide- ranging powers to supervise the ways Ministers exercise their functions in relation to delegated power they exercise. Other scholars, picking up on the general theme of greater independence for tribunals, also make the argument for a greater scope of independence through particular legal mechanisms. Sossin & Smith pick up on Ellis’ suggestions, arguing that the appointments process should be disaggregated completely from government.130 Macklin suggests that tribunal members who are dismissed for patronage reasons could have a valid human rights complaint for discrimination on the basis of political opinion—this option, to her, could provide “a striking new way of looking at patronage appointments.”131 McCormack makes the argument that insulating the “overt policy capacity of tribunals as a consequence of protecting their more court-like functions from government influence” may be a desirable way of protecting tribunal independence;132 and she notes that “[v]arious reports and studies have suggested, in a series of protections…[including] overseeing the process by statute, commission, councils or separate ministries.”133 In my view, there are two reasons to be skeptical about a general norm of independence, instantiated through a separate appointments bureau, given the need for administrative
129 Ibid 243. 130 Sossin & Smith (n 8) 51. 131 Sossin, ‘Administrative Justice’ (n 99) 206. 132 McCormack (n 72) 35. 133 Ibid 43. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
92 JOURNAL OF COMMONWEALTH LAW [Vol. 2 agencies to remain accountable : (1) it separates the traditional mechanisms for holding elected officials to account and (2) it is an overbroad policy prescription which fails to attack the real problem with delegated power: executive abuse of that power. Indeed, this last consideration defines the distinction between the Saskatchewan and Ontario cases. As noted above, independence is almost always juxtaposed with accountability. Nonetheless, accountability takes on even more importance in a situation where delegated power is at stake. This is because the delegation of power on its own creates potential conditions for the separation of the accountability and control functions. This is a risk that can be guarded against, but it is a risk nonetheless. The idea is that when a government makes appointments to a tribunal, it is held accountable through the ballot box for those appointments. With the separation of the appointment function into another bureau or commission, the accountability function is diluted; now the government is only held accountable for who it appoints to the independent committee, not for the ultimate choice of who the independent committee selects for the wide variety of tribunals. Whether this dilution is per se unconstitutional is besides the point; it is undesirable from an accountability perspective. Connected to this, separating out the appointment function into an independent board or commission is an overbroad policy prescription.134 It is eminently reasonable for a Minister who is politically responsible for a tribunal to make justifiable appointments to a tribunal. As in the Saskatchewan
134 Sossin & Smith (n 8) 51.
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2020] THE POLITICAL PROBLEM 93 example, it is also legitimate—if the law allows it—for a government to restaff a tribunal. If the public finds those appointments undesirable, or the practice of reappointment itself is undesirable, there is always a democratic remedy: the ballot-box. The creation of an “independent commission” to make appointments would further sever the accountability and control mechanisms that are central to the idea of political accountability. In this sense, there is a clear distinction between the Saskatchewan and the Ontario cases. In the Saskatchewan case, the Interpretation Act permitted the Saskatchewan government to restaff the tribunal as it saw fit. This was a lawful exercise of delegated power, because the Saskatchewan government would be held accountable for its exercise. A general norm of independence would undermine that accountability, and be an overbroad way of dealing with the specific problem. In the Ontario case, however, if the allegations are true, the government failed to exercise its appointment power for putative reasons extraneous to the legislative grant of authority. In such a case, another remedy is required.
B. The “Statutory Scheme” Response
Another way of viewing the problem of undermining delegated power is to prevent the executive from undermining the power in the first place. As early as Roncarelli, it was recognized that “there is no such thing as absolute and untrammeled ‘discretion’”135 and that “there is always a perspective within which a statute is intended to operate.”136 Put this way, executive discretion to control tribunals is naturally cabined by the statute that delegates that power to the
135 Roncarelli v Duplessis [1959] SCR 121, 140. 136 Ibid. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
94 JOURNAL OF COMMONWEALTH LAW [Vol. 2 executive. The discretion must be exercised according to the statutory grant of authority. The real problem with executive discretion, then, is not that it abridges independence; but that it has a potential of being misused to undermine the limitations on statutory power that arise in the context of a delegating statute. The goal should be to cabin executive discretion tightly so that it, necessarily, cannot undermine delegated legislative power. Broad delegations, on this understanding, should be avoided. The starting point for this argument is, as noted above, the subordination of executives and administrative decision- makers to Parliament’s law. The enabling statute is the fundamental organizing principle of all administrative decision-making, because administrative decision-makers only receive their powers from statute. 137 The same is true of executive actors; in enabling administrative decision-makers, the legislature can also enable executives to control decision- makers. The controls exercised by executives, like the decision- makers themselves, must be governed by the enabling statute and the limits put on the use of controls by that statute. Transgressing the terms of delegated power is the core evil with which judicial review is concerned, and it is the basic problem in the context of political controls. The problem in the Ontario case was the transgressing of limits imposed by legislation on the exercise of executive power. There, there was a legislative delegation to the executive to fill spots on the tribunal. But the government failed to do so— ostensibly because it did not consider the Tribunal a priority, or
137 Vavilov (n 15) [108].
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2020] THE POLITICAL PROBLEM 95 worse, because it wanted to gut the Tribunal. In such cases, the executive has undermined the legislative delegation and the statutory scheme empowering it. One can imagine various statutory amendments that can prevent the executive from undermining legislative delegations in the appointments context. In the Ontario context, the allegation was that the Attorney General delayed appointments to the Tribunal, apparently to undermine the work of the Tribunal. For now, let us assume that this is true. The problem, then, is the specific use of a delegated power of appointments to undermine the very delegated power at issue—the power of the Ontario Human Rights Tribunal to accomplish its tasks in a timely manner. For example, an amendment to the Ontario Human Rights Code, or the imposition of a regulation that imposes a period of time in which a Minister’s assessment of a reappointment must be made would solve potential problems of delay. While Ministers should have the right, as in the Saskatchewan Labour case, to appoint new members to a tribunal, those appointments should be made in the shortest period of time possible, so that the legislature’s intent to establish a tribunal in the first place is not disrupted. This particular amendment would ensure that a Minister’s ability to politically control a tribunal is maintained, while ensuring that the regime created by the Legislature is respected by Ministers bound to execute the law. This is not a frivolous or overly technical amendment. In 2016, the Office of the Auditor General of Ontario reported that there were “[s]ignificant delays in the appointment and reappointment processes in the last five years.”138 The Auditor
138 Office of the Auditor General of Ontario, 2016 Annual Report of the Office of the Auditor General of Ontario, c 4, sec 4.02: The Provincial Public Appointment Process, 693. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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General said the following about the delays experienced in the administrative state: In our review of a sample of 1,400 new appointments in the last five years between 2012 and 2016, we found that it took on average almost 16 months to fill these vacant positions despite frequent monitoring and reporting of existing and upcoming vacancies months ahead of the end date of the outgoing members’ terms. The delay in 421 of these appointments caused 33 provincial agencies to drop below their legislated minimum number of members and 163 other entities not to have legislated public representatives on their boards as required. The remaining 979 appointments, at agencies with no legislated minimum requirements, had similar delays, taking an average of 15 months to make new appointments.139 While it does not appear that, in 2016, the Tribunal was in the cross-hairs for this particular problem, the situation in Ontario in 2018 would be solved by taking seriously the Auditor General’s 2016 conclusion. Imposing time-limits would at least help the public to recognize when a Minister is failing to meet her duty under the law. This has the salutary effect of concentrating political accountability for the Tribunal on the responsible Minister. Additionally, legislation should prescribe the minimum number of tribunal members required at any given time, and could ensure that there are no gaps in between terms of various members. Under the OHRC, for example, there are no minimum number of members required to staff the tribunal at a particular time. Further, the OHRC, at s.32(5), delegates
139 Ibid.
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2020] THE POLITICAL PROBLEM 97 power to the Cabinet to appoint Tribunal members “for such term as may be specified…” The possibility is that a number of appointments could run out, bringing the Tribunal to a standstill, in absence of some legislated minimum. Amendments to the statute that required staggered terms and a statutory minimum number of members would preclude a Minister from replacing all of the members of the tribunal at a given time; but it would not attack the right of Ministers to have a right to appoint the members of a tribunal. While it appears that, in some cases, even this legislated minimum was not enough to prevent certain tribunals from falling under its minimum number of members (at least in the 2016 Auditor General report), it would again have the effect of concentrating responsibility on a Minister for her failure to abide by what the Legislature said the law requires. Finally, these statutory amendments could allow for the possibility of judicial review. In the Retired Judges case, the Supreme Court noted that a Minister “as a matter of law, [is] required to exercise his power of appointment in a manner consistent with the purpose and objects of the statute that conferred the power.”140 If a statutory text confines the appointment power, there is a chance that a litigant whose case is delayed at the Ontario Human Rights Tribunal could base a case around the statutory limitations on the appointment power.
IV. CONCLUSION
For some time, independence has been seen as a dominant feature of administrative decision-making. In the abstract, as the functionalists emphasized, it is quite important.
140 CUPE v Ontario (Minister of Labour) 2003 SCC 29 [49]. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM
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The question, however, is whether it forms an adequate legal basis on which to impugn the exercise of political controls by executives. This paper has argued that independence cannot be taken this far. Instead, the core political problem in the administrative state is the potential for executives to use political controls to undermine the very power they have been delegated to implement. This upsets the basic accountability relationship in the administrative state, by permitting the executive to run afoul of the law governing it. This undermining of legislative power cannot be addressed by doubling-down on independence; rather, targeted statutory amendments should be offered—for example, in the Ontario case—to prevent such undermining.