Administrative Law

Chapter 2 – Administrative
Tribunals and Agencies
 Introduction
1. The structure of executive branch has changed
dramatically over the last century (the other two branches
of government’s structures have remained relatively
consistent over this time)
2. This is partly because of the evolution and growth of a
network of administrative agencies that has been a
response to the “growing complexity of Canadian society”
3. ABCs now perform functions that were previously
performed by government departments – at arm’s length
from the Minister and Ministry staff
4. Some commentators have gone so far as to call this
network of administrative agencies “a fourth branch of
government”. It certainly should be regarded as a separate
sector within the executive branch.
Protections from political interference in tribunal
decision making come from administrative law
1. Administrative law requires there to be no
political interference in Tribunal decision-
making unless the interference is authorized by
the enabling statute
2. It requires all legal and political actors to stay
within their own respective areas of jurisdiction
3. It ensures that all litigants that come before
tribunals receive procedural fairness (i.e., at a
minimum, the right to be heard and the right to an
unbiased decision-maker)
Categorizing agencies, boards, and commissions
based on the functions they carry out

Agencies, boards and commissions perform

a wide variety of functions:
• They give advice
• They set standards
• They regulate businesses and professions
• Provide goods and services
• Determine people’s fundamental rights and
social entitlements (e.g., to accident
benefits)
 8 Categories of Administrative
Agency
1. Advisory agencies
- These agencies provide advice to a ministry to assist in the
development of policy or the delivery of programs (e.g., the
Livestock Medicines Advisory Committee)
2. Operational service agencies
- These agencies deliver goods or services to the public usually at
a low fee (or no fee)
- An example is the Ontario Marketing Partnership Corporation who
publishes an Ontario Summer Magazine to Ontarians at no cost
(provides Ontarians with information as to upcoming festivals and
events in Ontario)
- It is downloadable here:
http://www.ontariotravel.net/TCISSegmentsWeb/gn/travelGuides/
magazine.xhtml?_nfpb=true&_nfls=false&language=en
 Eight (8) Categories of
Administrative Agency
3. Operational enterprises
- These agencies sell goods or services to the public in a commercial manner
(e.g., LCBO)
4. Regulatory agencies
- These agencies make independent decisions and exercise autonomous
authority over some area of human activity (e.g., Workplace Safety and
Insurance Board)
5. Adjudicative agencies
- These agencies make independent decisions, similar to those of courts to
decide on some of our most important rights and entitlements (e.g., Ontario
Human Rights Tribunal)
6. Crown foundations
- These agencies solicit, manage and distribute donations of money or other
assets to support public organizations such as art galleries
7. Trust agencies
- These agencies administer funds or other assets for beneficiaries under a
statute (Ontario Public Service Pension Board)
 Continued
8. Watchdog agencies – such as the
Ontario ombudsperson and Royal
commissions of inquiry
Multi-purpose agencies may have a
variety of functions
• An agency may have a combination of
advisory, regulatory, investigative, policy-
making, adjudicative, and other functions
• Agencies may have to follow one set of rules
when carrying out one function and another
set when carrying out another function
• Sometimes the functions of an administrative
tribunal overlap (e.g., many tribunals perform a
hearing function and a re-consideration of the
hearing decision function)
 Why did government decide to create
administrative agencies and tribunals?
1. To demonstrate independence (e.g., a commission of
inquiry)
2. To reduce the size, workload or budget of a
department
3. To reduce conflicts of interest (e.g., p. 26)
4. To provide flexibility in human resources and to reduce
labour costs (government can set lower wages and
limit the length of appointments; deny members
tenure; appoint members that have no prior experience
or qualifications for the job)
5. To provide expertise and specialization (e.g., the
Human Rights Tribunal, the Social Benefits Tribunal,
etc.)
 Continued
6. To ensure the public is heard – the government can appoint
members of the public or interest groups to an administrative
agency for a specific purpose
7. To signal a new approach or different approach to an existing
problem (e.g., the area of human rights in the workplace was
unregulated until the Ontario government created the Human
Rights Tribunal of Ontario)
8. To achieve uniformity – to help coordinate the activities of many
departments (e.g., 27)
9. To avoid permanence – government may want the flexibility to
create a body to deal with a current issue then disband the body
once the issue is addressed (e.g., the Federal Government, under
Mulroney, created the Macdonald Commission to consider
whether free trade with the United States was in the best interest
of Canada)
 Multipurpose agencies
Administrative Law Principle (#1): A separation of
powers within a tribunal’s functions is required to ensure
fairness.
1.Administrative law requires agencies to appoint
different people to carry out different functions (e.g.,
prosecutors must be different from hearing judges;
”no one shall be a judge in his or her own cause”) and
to follow different procedure when carrying out the role.
2.Often, different procedures and different rules of
evidence apply to the different functions of a tribunal
to ensure fairness.
 Administrative Law Principle
(#2): No sub-delegation of authority
1. The decision-maker of a Tribunal cannot delegate
his authority to decide a matter to another person
within the tribunal.
2. The prosecutor of a Tribunal, in his or her role, must
similarly be independent.
3. A prosecutor should be able to objectively and
independently review the evidence gathered by an
investigator to see whether it supports the laying of a
charge against the person concerned.
4. If the evidence is suspect, the prosecutor should be
able to refuse to support a prosecution, regardless
of what the investigator might think of the merits of
laying a charge against the person concerned.
 The Source and Scope of a
Tribunal’s Powers and Duties
1. A Tribunal’s powers and duties are governed and
limited by the enabling legislation and any implied
powers that the board has at common law.
Common powers and duties of a Tribunal
1. To hold hearings (various formats are possible depending on
the tribunal).
2. To require witnesses to attend and give evidence at a hearing
(via the issuance of summonses).
3. To receive relevant evidence.
4. To decide a dispute between parties in favour of one party or
the other, on a final basis.
 Advantages of Tribunal Decision-Making
over Government Decision-Making
• Tribunals are more removed from
government than an administrator in a
government department (or a political official)
is
• Tribunals allow for more active and direct
citizen participation
• Tribunals allow experts to be involved in the
decision in a way that often isn’t possible in
courts, where the focus is on individual rights
 Advantages of Tribunal Decision-
Making over Court Decision-Making
• You can have community/interest group
participation on the panel of decision-maker –
may increase the legitimacy of the process and
ultimate decision as a result.
• The specialized expertise of tribunal members.
• Tribunal proceedings can be less formal and
more accessible to the general public.
• Tribunals can often hear cases quickly and
without delay.
Similarities between Tribunals and
Courts’ Decision Making Processes
• A party’s right to be heard.
• A party’s right to an impartial decision
maker (means the decision maker cannot
be bias or have a conflict of interest).
• A party’s right to present evidence
• A party’s right to appeal a final decision or
final order.
 Differences between Tribunal and
Court Decision Making Processes
• Tribunal members are not required to follow the
principle of stare decisis. Superior court judges are
strictly bound by the doctrine of precedent.
• Looser rules of evidence in Tribunal hearings.
• Tribunals can sometimes investigate and adjudicate
the same case.
• Tribunals can sometimes require little or no
advanced disclosure of evidence.
• More allowance for participation by the public in
Tribunal proceedings.
 Adversarial and Inquisitorial
Models of Adjudication
Definition of adversarial
•The parties themselves (and their legal
representatives) determine what evidence is put
before the tribunal.
•A tribunal is forbidden from gathering evidence itself.
•A tribunal member takes a relatively passive role in
the hearing process.
•Let’s consider the underlying assumptions for the
adversarial system set out on p. 41 of the course text.
Definition of Inquisitorial System

• Requires the tribunal to conduct the investigation and

collect the evidence and information
• Adjudicators have much greater latitude to examine
and cross-examine parties and witnesses
• Adjudicators may call witnesses on their own initiative
• Adjudicators may have the burden of proof; the
tribunal itself determines whether a party is entitled to
a remedy
• The contrast is apparent in the following quote from
LeBlanc on p. 41 of the course text
 Ascertaining whether a Tribunal’s decision
making process is adversarial or inquisitorial?

Always look at the tribunal’s governing statute:

1.Is the decision making process referred to as an
“inquiry” rather than a “hearing”?
2.Is the holding of a hearing by the tribunal made
“discretionary”?
3.Is the tribunal given the power to collect evidence
independent of the parties?
4.Is the tribunal required to determine the public
interest, rather than just adjudicate individual rights?
 Continued
5. Does the statute require that the
adjudicators have special expertise in the
matter?