Administrative Tribunals in Canada

Function and Composition

Administrative tribunals are independent, specialized governmental agencies. They are established under federal or provincial legislation to implement legislative policy. Appointment to such agencies is usually by order-in-council. Members are typically chosen for their expertise and their experience in the sector affected by the legislation.

Administrative tribunals perform a wide range of functions, including:

• research and recommendation (e.g., law reform commissions);
• rule-making and policy development (e.g., the Canadian Radio-Television and Telecommunications Commission and provincial securities commissions);
• grant allocation (e.g., the Canada Council for the Arts and regional development agencies);
• adjudication (e.g., labour relations boards; landlord and tenant boards; immigration and refugee boards; municipal boards; and human rights tribunals);
• the setting of standards (e.g., environmental assessment boards; workers’ compensation boards and health and safety commissions).

In addition to such permanent agencies, there are ad hoc tribunals. These are mandated to deal with a specific subject matter; for example, arbitrators and inquiry commissions.

Nonpartisan Role and Independence

Administrative tribunals function at arm’s length from government. They are expected to exercise their role in a nonpartisan manner. However, the precise relationship between administrative tribunals and government varies. In some cases (such as in the municipal, transportation,  communications and energy sectors), appeals of tribunal decisions may be permitted. Such an appeal would typically be made to the cabinet. However, this is not common; where it exists, it is rarely used.

The selection process for members of administrative tribunals may be vulnerable to abuse through patronage or conflicts of interest. This is true of all order-in-council appointments.

However, legally, tribunals must be independent from government; they must make their decisions free from any influence or bias. Usually, this means that if a tribunal makes an unfair or unreasonable decision, the person affected can appeal the decision to a court.

The Decision-Making Process

Many administrative tribunals have a hearing process. This is used to determine conflicting rights and obligations; or to assign rights or entitlements between competing parties. Many tribunals have wide powers to summon witnesses and records and to take evidence under oath. These tribunals get their powers either directly in their enabling legislation; or indirectly by general laws about the tribunal process. Some tribunals may be governed by multiple statutes or rules of procedure. For example, the Ontario Child and Family Services Review Board gets its powers from the Child and Family Services Act (1990); the Intercountry Adoption Act (1998); and the Education Act (1990). The Conservation Review Board is empowered only by the Ontario Heritage Act (1990).

If a tribunal makes adjudicative decisions based on testimony and evidence, like a normal court, it will tend to function more like a court. Procedure for tribunals is generally less formal than in court. The rules of evidence do not usually apply. However, decisions must be based only on cogent evidence. The decisions of administrative tribunals may be final and not subject to appeal; this depends on what it says in the tribunal’s empowering legislation.

Judicial Review

Even where no right of appeal is provided or when a statute specifically forbids it, superior courts are able to review any administrative tribunal’s function. This is a principle of the Canadian Constitution called judicial review. It usually does not focus on whether the tribunal made the right decision; but whether it made the decision correctly and within the scope of its empowering legislation.

During judicial review, a reviewing court will look at whether the tribunal had the power to make the decision; and whether it treated everyone before it fairly. The fairness of proceedings can involve whether the tribunal considered certain evidence; whether the person affected was given proper notice; or whether the person was allowed to make their case. For the most part, courts will review administrative decisions based on their reasonableness.

If a tribunal acts outside its jurisdiction or fails to act reasonably, a superior court may cancel (quash) its decision. The matter would then be sent back for redetermination. In very rare cases, it may replace the tribunal’s finding with its own. Generally, if a decision is made properly — that is, it is procedurally fair, fairly considered and within the tribunal’s power — courts will not overturn a tribunal’s finding of fact. They will only overturn a decision if the tribunal made an error of law or acted unreasonably in making their decision.

Enforcement

Some administrative tribunals are given the power to enforce their decisions themselves. They would do so either as adjudicative bodies or as regulatory and licensing bodies. It is more common for tribunals that serve regulatory or licensing functions to enforce their own rulings, as they control their membership. Otherwise, tribunals (and anyone else wishing to enforce an order) must apply to the courts to enforce their decisions. In some cases, a tribunal’s empowering legislation will impose criminal or quasi-criminal sanctions — fines or imprisonment — on those who fail to comply.

See also Administrative Law in Canada; Arbitration; Bureaucracy; Public Service; Ombudsman; Court System of Canada.