Recently, as is well-known, the Ontario government announced a 30% cut to legal aid. The effects of this cut are already being felt, most prominently at Canada’s largest tribunal. The Immigration and Refugee Board [IRB] announced last week that it expected the legal aid cuts to cause “longer hearings, more postponements and adjournments and more missed deadlines on the part of unrepresented individuals.” According to Maureen Silcoff, President of the Canadian Association of Refugee Lawyers:
Hearings that once took two to three hours will take twice as long…[a]lso, refugees are likely to be unsure of what evidence to provide and which arugments to present, which could in turn, place IRB members in the difficult position of making refugee decisions with limited information…
This is not the first time the IRB has come under the gun for its inability to respond quickly and efficiently to claims. Earlier this summer, the Auditor General reported that wait times at the IRB will increase to 5 years—more than double the current wait time—by 2024. In total, the IRB—which is supposed to be a bulwark of “access to justice” in the administrative state—is not keeping up with the surge of asylum claims made by those seeking entry to Canada.
What does this situation mean for administrative justice? One example does not a trend make, but the combination of existing wait times and the addition of legal aid cuts at the IRB presents a concerning situation for the status of administrative tribunals as a means of effective access to justice. It should no longer be presumed that administrative tribunals are any better than courts at resolving disputes when they are under the thumb of governments that can effectively gut them at any moment.
The starting point for this claim is the existing state of affairs. Access to justice is a term thrown about quite a bit, but it lacks definitional certainty. Most of the time access to justice is bandied about as a term relating to sufficiently quick access to courts, through the means of legal aid, for example. But in today’s day and age, if access to justice is to mean anything at all, it must also ensure that claimants have sufficient access to administrative agencies—an opportunity to challenge actions of those agencies that run afoul of statutory or constitutional rights. Otherwise, access to justice would exclude the whole world of decision-makers that exists outside of courts.
If this is the case, then the legal aid cuts in Ontario are sufficiently problematic to warrant questioning whether the administrative state is functioning as it should. If Parliament and legislatures are to delegate power to these subordinate actors, tasking them with a whole host of decision-making and law-making functions, then they should at least ensure that litigants with legitimate claims have an opportunity to access them. And if they can hobble a major agency so easily, shouldn’t we be concerned?
According to the Supreme Court, the answer is no. The Court, seemingly disregarding previous episodes that sounded the same themes as the legal aid cut and the Auditor General’s report, said the following in Edmonton East:
A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making (at para 22).
Making the same point in a speech in 2017, then Chief Justice McLachlin made a similarly misguided argument:
In sum, without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap. And there is no going back.
And the biggest proponent of the administrative state, Justice Abella, made the same point when she sat on the Court of Appeal for Ontario:
Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly
Rasanen v. Rosemount Instruments Ltd (1994), 17 O.R. (3d) 267 (C.A.) at pp. 279-80
All three of these statements have proven to be untrue, at least in the context of the IRB. Administrative justice is a lesser form of justice if it cannot resolve disputes quickly and efficiently. It is, though, fundamentally a lesser form of justice because it exists under the thumb of government. Government can starve the beast, end its existence, or otherwise hobble its movement as a form of justice. In these ways, the legal aid episode coupled with the effects on the IRB are predictable.
The dangerous part of these comments is the transformation into rationales for judicial deference, as in Edmonton East. Deference to administrative agencies, as I wrote here, should only follow when a court concludes that Parliament meant to legislate deference. Deference is nothing more or less than this; it is not an ad hoc policy issue for judges to assess based on their personal assessments of which agencies are sufficiently accessible. Nonetheless, if access to justice is to be a reason for deference, a broad presumption in favour of the conclusion that agencies are accessible is certainly untrue. The IRB provides but one example, but imagine all of the agencies that will be impacted in Ontario by the legal aid cut.
The broader point here is that access to justice is a policy issue that exists at the behest of the government. It is fundamentally a question of distribution and resources. Similarly, administrative agencies are funded through the Parliamentary Estimates process, and access to those agencies can be gutted peripherally through mechanisms like the legal aid cut. Since both access to justice and administrative agencies exist on the same track, under the control of the same governments, it is possible for the connection between access and the agencies to be severed by the government.
One might say that the same situation exists, at least to some extent, with courts. No matter the truth of that statement, the claim here is that administrative agencies are relatively more efficient than courts. Yet if recent events are any indication, there is at least some reason to question that conclusion.
No matter what comes of IRB or the recent attempts by the government to hobble access to it, the episode should remind us that access to justice sounds in both courts and administrative agencies. And the Supreme Court, counter-intuitively, has instructed us to bend the knee in favour of agencies because they are supposedly more efficient. Query whether this instruction is justified.