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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative - Independence of Adjudicators

. The Corporation of the City of Windsor v. Paciorka Leasehold Limited

In The Corporation of the City of Windsor v. Paciorka Leasehold Limited (Div Ct, 2021) the Divisional Court considered the issue of 'judicial copying' (although here it was by a tribunal) as an aspect of judicial independence:
[49] In Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, the Supreme Court of Canada addressed the issue of “judicial copying”. The Court held that judicial copying raises issues of natural justice because it goes to the issue of whether the decision maker decided the matter independently.

[50] In Cojocaru, at para. 22, the Court emphasized that there is a presumption of judicial impartiality and that the onus is on the party challenging the decision to rebut the presumption:
There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
[51] In Cojocaru, at paras. 35-36, the Court stated that “extensive” judicial copying is to be discouraged but that, on its own, it is not evidence of a lack of independence. The copying must be “of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision”. The Court also held that, while it is expected that adjudicators will make their decisions independently, it is not improper for some copying from the parties’ submissions to take place. The issue is whether the reasoning and assessment of the evidence occurred independently.
. Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals)

In Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals) (Ont CA, 2019) the Court of Appeal canvassed the law governing the independence of administrative adjudicators:
(b) Application of the Trilogy

[26] The Supreme Court’s trilogy of cases on consultations in the course of preparing reasons for a decision – Consolidated-Bathurst, Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952, and Ellis-Don – sets out a framework of considerations for assessing whether there is a reasonable apprehension of bias or lack of independence.

[27] The guiding principle from the trilogy is that the decision-maker must be free to decide cases “in accordance with his own conscience and opinions”: Consolidated-Bathurst, at p. 332. Consolidated-Bathurst establishes that discussions with colleagues are permissible even though they raise the possibility of “moral suasion,” and that adjudicators are entitled to consider the opinion of their colleagues in the interest of adjudicative coherence: at pp. 331-33. The court also recognized that consultation could allow the adjudicator to benefit from the acquired experience of the entire board and foster coherence in the board’s jurisprudence: at pp. 326-28. At the same time, the court concluded that any procedure or practice that unduly restricted independence would be contrary to the rules of natural justice: at p. 323. Accordingly, procedures that “effectively compel or induce” decision-makers to decide against their own conscience and opinions are impermissible: at p. 333.

[28] To reconcile the demands of decision-making by administrative tribunals with procedural fairness, the court held that full-board consultation was permissible if accompanied by appropriate safeguards. As Gonthier J. stated, the question is whether the “safeguards attached to this consultation process are…sufficient to allay any fear of violations of the rules of natural justice”: Consolidated-Bathurst, at para. 53. Consolidated-Bathurst establishes that the fact that the board’s chair or other board members lack any de jure power to impose their opinion on other board members is not a sufficient safeguard, as procedures may still “effectively compel or induce” members to decide against their conscience and opinions: at p. 333. Accordingly, the court must examine the “actual structure of the machinery created to promote collegiality” and “determine the actual situation prevailing in the body in question”: Tremblay, at pp. 968 and 973 (emphasis in original).

[29] The Supreme Court also outlined specific rules that govern the practice of full-board consultation. In Consolidated-Bathurst, the court found it “obvious” that “no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision”: at p. 332. Likewise, in Tremblay, the court found that the tribunal president’s ability to refer a matter for plenary discussion without the permission of the adjudicator was a sufficient basis to find an appearance of a lack of independence: at p. 974. As a result, Ellis-Don held that it was a basic principle that only the adjudicators could request consultation and that their superiors in the administrative hierarchy could not impose it on them: at para. 29. This conclusion is consistent with leading treatises. As Sara Blake states in Administrative Law in Canada, 6th ed. (Toronto: LexisNexis, 2017), at pp. 116-117:
A process for compulsory consultation… is not acceptable. The decision to consult must be up to the decision makers. It should not be imposed on them. If they do not wish to consult, they must be truly free to choose not to do so. Compulsory consultation creates an appearance [of] constraint on their freedom to decide the case.


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