Flaws in administrative justice in Québec under scrutiny of four researchers

Legal experts advocate adoption of umbrella legislation to guarantee independence of members of certain public agencies

An abstract of the study is available in French upon request

MONTREAL, Feb. 17, 2014 /CNW Telbec/ - Research professors from the Faculties of Law of Université de Montréal (France Houle, Pierre Noreau and Martine Valois) and Université Laval (Pierre Issalys) today published the findings of an extensive study into the status of independent administrative adjudicators. These officials, members of some fifteen public agencies in Québec, such as Commission des lésions professionnelles and Régie du logement, have authority to adjudicate disputes or make determinations about the rights and interests of citizens under the provisions of a broad spectrum of Québec legislation. The very nature of their responsibilities requires that they enjoy complete independence in rendering their decisions, if only to substantiate public confidence in the quality and fairness of decisions taken.

Entitled Administrative Justice: Of Independence and Responsibility - Paving the way towards a common regime for independent administrative adjudicators, the report published by the researchers examines the extent to which adjudicator independence is guaranteed. The authors detail the current legal framework, taking into account both Québec legislation and constitutional rules, and present the findings of a survey conducted among  independent administrative adjudicators. They then propose the substance of umbrella legislation which would apply to all adjudicators, including measures necessary to guarantee adjudicator independence in the exercise of their responsibilities.

According to the authors, "The current system lacks uniformity and the protection provided adjudicators, often referred to as 'administrative judges', is generally insufficient if not archaic." Readers will appreciate that the repercussions of rulings made by these administrative decision-makers impact the lives of individual citizens to much the same extent as civil and criminal justice rulings.

The 375-page report details the findings of the study conducted over the past five years and is available in French at Centre de recherche en droit public: websrv1.crdp.umontreal.ca/depot (Usager : presse, mot de passe : entourage)

Administrative justice at heart of democratic life in Québec

Each year, over 140 000 cases are handled by independent administrative adjudicators at the 15 key public agencies under study. Decisions rendered impact basic aspects of the lives of Québecers from the cost of electricity to highway accident compensation to wrongful dismissal.

"Each Québecer will, at least once in his or her life, have recourse to an 'administrative tribunal' and be affected by a decision taken by one of these agencies," the researchers underscore. A citizen appealing to an 'administrative tribunal' must be assured that the adjudicators have the knowledge and skills to render the best decisions possible and that they are poised to rule freely, without external influence or intervention, especially in matters of litigation involving another public authority. Citizens must further be assured that the government, which is responsible for funding these public agencies, demonstrates requisite transparency and rigour in matters relating to organizational management and the selection of members. While preserving government responsibility for ensuring the proper functioning of these agencies, the singular nature of these 'tribunals' requires that there be sufficient distance between the adjudicators and the public or private powers with possible interests in the decisions being rendered. That said, the study points up that neither the law nor current practice is consistent with this goal.

Regimes of variable geometry

An analysis of the legal texts demonstrates that these agencies are not free of executive authority influence. The government, on the advice of a minister, has authority to select and appoint adjudicators, to set or approve rules relating to adjudicator status and activities, and to approve budgets made available to them. These forms of control do not generally allow for intervention into specific cases, but can pose a threat to adjudicator independence in the broader sense.

What is more, appointments, reappointments and revocations of appointments are not always carried out with the rigour and transparency required in the circumstances or based on appointee qualifications. Indeed, for 9 of the 15 agencies studied, the law requires no special qualification or selection criteria. Unlike some other provinces, Québec has no unified regime to regulate adjudicator selection, validate appointee qualifications to exercise their responsibilities, and guarantee independence from government or external sources of intervention or interference. Similarly, adjudicator working conditions, compensation and standards of ethics display a lack of uniformity.

Alarming testimonials

Study findings gleaned from 28 adjudicators in the 15 agencies under study are more worrisome yet. Some recurring situations continue to compromise adjudicator independence.

The absence of selection rules in the majority of agencies studied allows partisan influence and even patronage to interfere in appointments. Data gathered reveals that the Executive Council regularly uses its appointment powers to provide a convenient posting for some favoured candidate, reassign or replace public officials no longer welcome in their position, or offer employment to specific individuals on the eve of a change of government. Important decision-making powers are therefore conferred on individuals who do not always have the qualifications, legitimacy or preparation necessary to exercise the responsibilities incumbent upon them.

Furthermore, it would appear that agency chairpersons are not generally consulted upstream of adjudicator appointments or reappointments even though they are required to review adjudicator performance and are therefore in a position to assess the competency of the individuals in question. On the other hand, some powers of agency chairpersons were found to impact adjudicator independence, including the power to distribute cases and thereby intentionally favor a preferred disposition of sensitive cases.

Lastly, interviews with adjudicators revealed that the Secrétariat aux emplois supérieurs, which assists the Executive Council in the exercise of appointment powers, handles independent administrative adjudicator positions and senior public service administrative positions in the same manner. The selection process therefore does not make adequate allowance for the specifics of independent administrative adjudicator positions.

Necessity of umbrella legislation

With their study now complete, the researchers point, first and foremost, to the disparate and deficient nature of legislation governing independent administrative adjudicators. Having examined in detail the various dimensions of the issue at hand, the researchers recommend a common, uniform regime for guaranteeing adjudicator independence which is essential to the proper exercise of their responsibilities. Some thirty recommendations describe the substance of the proposed umbrella legislation which would govern the selection of independent administrative adjudicators, term of office both initially and upon reappointment, compensation, working conditions, as well as management of the agencies to which they belong.

15 agencies studied

The fifteen agencies studied are the following: Bureau de décision et de révision, Comité de déontologie policière, Commission d'accès à l'information, Commission de la fonction publique, Commission des lésions professionnelles, Commission municipale du Québec, Commission de protection du territoire agricole, Commission québécoise des libérations conditionnelles, Commission des relations du travail, Commission des transports du Québec, Régie des alcools, des courses et des jeux, Régie de l'énergie, Régie du logement, Régie des marchés agricoles et alimentaires du Québec and Tribunal administratif du Québec.

Partners

This study was made possible through financial support from Fondation du Barreau du Québec, Conférence des juges administratifs du Québec, Association des juges administratifs de la Commission des lésions professionnelles and Council of Canadian Administrative Tribunals.

SOURCE: Faculty of Law of Université de Montréal

For further information:

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