You’re Fired!

Earlier this month, the Saskatchewan Court of Appeal issued a decision which, if legally predictable, offers us a useful opportunity to think about some serious questions in Canadian administrative law. At issue in Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, was the constitutionality of s. 20 of Saskatchewan’s Interpretation Act, 1995, which allows a newly elected government to dismiss from office members of boards, commissions, and other administrative agencies (except those appointment can only be terminated by the legislative assembly).

One of the agencies whose members are thus subject to summary dismissal by a newly installed cabinet is the province’s Labour Relations Board. In 2007, an incoming government dismissed its chairperson and vice-chairpersons, appointing in their stead persons with whose ideological leanings it was more comfortable. A number of trade unions challenged the dismissal on administrative law grounds, but that challenge failed. They then challenged the constitutionality of s. 20, alleging that it breached the constitutional principle of judicial independence.

The Court of Appeal unanimously rejected this argument. The question, it found, was settled by the Supreme Court’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, which held that the principle of judicial independence did not apply to administrative tribunals, except insofar as their decisions concerned rights protected by sections 7 or 11(d) of the Canadian Charter of Rights and Freedoms. For all other tribunals ― the majority of them, and in particular all those that deal with citizens’ economic interests, which s. 7 of the Charter does not protect ― legislatures are free to define and limit the extent of their independence. There is a “fundamental distinction between courts and administrative tribunals” (par. 51), the principle of judicial independence applying only to the former.

The unions argued that Ocean Port did not apply, because the administrative body it concerned, a liquor control agency, was of a policy-making character, whereas the Labour Relations Board’s functions were quasi-judicial. That was true, the Court of Appeal found, but not enough to make a difference, because the Supreme Court had not limited the scope of its holding in Ocean Port to administrative tribunals with policy-making functions. Nor did the Supreme Court’s subsequent decisions temper the distinction it had drawn in Ocean Port between courts and administrative tribunals.

This seems the right answer as a matter of law as it is. Whether the law should be this way is a different question. In the immediate context of this case, s. 20 makes all members of administrative tribunals, including those adjudicating disputes that would, if the tribunal did not exist, be settled by judges of ordinary courts, political appointees subject to dismissal by an incoming government for no better reason than ideological disagreement. This is, so far as I know, a very unusual provision in Canadian law. But it is not unusual for administrative tribunals to enjoy very limited independence from the government.

In Ocean Port, the Supreme Court suggests that this is as it should be.

Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. …

Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, 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.  (Par. 23-24)

Perhaps so. But the Supreme Court’s other decisions make it clear that courts must defer to an administrative tribunal’s interpretation of law, except on legal questions considered “of central importance for the legal system” (a category that notably includes constitutional questions). This means that legal questions might be settled beyond the reach of judicial review by tribunals not only lacking all the (admittedly generous) trappings of judicial independence granted to courts, but indeed existing for the purpose of implementing government policy. In other realms, courts very much enjoy drawing a sharp line between law and policy and insisting that the two fields must be kept separate. (The Québec Court of Appeal’s recent gun registry decision, Canada (Procureur général) c. Québec (Procureur général), 2013 QCCA 1138, which I summarized here, is a fine example of that sort of rhetoric.) But in administrative law, the combination of a refusal to extend a constitutional requirement of adjudicative independence to administrative tribunals and the emphasis on deference to such tribunals’ decisions even on legal questions blurs that line into invisibility.

I can think of a couple of explanations for why this might be the case. One is practical: there is, as the courts are fond of saying, a “spectrum” of administrative tribunals, ranging from the entirely quasi-judicial to the obviously policy-making. Between these two extremes, distinguishing between the two categories to decide which tribunals should be granted independence would be very difficult, causing no end of litigation, an outcome courts are ― rightly ― keen to avoid. But if distinguishing between quasi-judicial and policy-oriented tribunals is impracticable, refusing to defer to tribunals’ interpretations of law ― and especially to the decisions of tribunals that lack independence ― is not.

The other explanation might (I am really just speculating here) be due to a common, but, in my view, unfortunate, understanding of the rationale for judicial independence. Both courts and scholars often emphasize the role of judicial independence in constitutional litigation, where the rights of citizens or the powers of governments are at stake. This emphasis, I am afraid, tends to make people forget that it is no less important in “ordinary” than in constitutional litigation that decisions be made according to law rather then anyone’s policy preferences. As it is, it is thought that review of constitutional decisions independent courts is enough.

It isn’t. Don’t count on the Supreme Court to change its approach though. And unless it does, courts will have to defer to administrative tribunals to whom governments can, if the tribunals’ decisions are not to their liking, say “you’re fired!”

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota