Opening up the "Open Court" Principle of Administrative Tribunals

By: Zackery Shaver, student-at-law with the Canada Agricultural Review Tribunal (CART)

It is easy to forget that not that long ago, the majority of human information and thought was stored in large stone and brick buildings containing hundreds and thousands of oddly shaped rectangular paperweights called books. Since that time, information has steadily changed mediums, from library to electronic service, from computer to tablet, paid service to creative commons. With this democratization of information and the coming of age of a whole generation that shares an unprecedented amount of their lives through social media, it should come as no surprise that institutions are now being expected to be as transparent in their operations as their users. It is my view that the progress of the last 20 years will spill over well into the next 10 and that the traditional "open court" principle will evolve into an "open door" principle, where it will no longer be enough for content to be available upon request, but rather for content to be made available proactively from anywhere and accessible by anyone.

A view to Transparency and Openness

While this movement has exhibited itself in various different forms from businesses providing detailed financial and strategic information on their operationsFootnote 1, to governments providing advanced solutions for tracking expendituresFootnote 2, to individual’s income tax forms being published for the entire world to seeFootnote 3, it remains to be seen how these actions will translate into the legal and administrative law contexts. We know, as a fact, that the vast majority of the public’s interactions with the "law" will be in an administrative context, whether disputing a parking ticket or applying for veteran’s benefits, however, what does that mean practically for these administrative functions? As Benedict Kingsbury enunciated in a 2009 article discussing global administrative law, "Publicness is a necessary element in the concept of law under modern democratic conditions ... [where] publicness is meant [to be] the claim made for law that it has been wrought by the whole society, by the public, and the connected claim that law addresses matters of concern to the society as such."Footnote 4

As such, a decision that has been wrought in the name of a whole society must necessarily allow the public to understand how that decision has come to be. In Canada, there has been significant discussion in recent memory on the application of "principles of fundamental justice" and "Charter values" in order to make use of Charter protections that would apply in a criminal context, in a somewhat diluted context in administrative actions. To be sure, the application of "Charter values" in the administrative law context is a subject that has filled volumes, however, for my purposes, I will necessarily limit the discussion and conclude that individuals have a general right to know the case before them, a right to be heard and a right to a motivated decision on the matter. While I understand that the exact content and manner of these rights will vary based on circumstances, I would argue that a general basic obligation would exist in these three areas.

The Honourable John D. Richard, a previous Chief Justice of the Federal Court, enunciated this view in a speech he gave to the Canadian Bar Association in 2002 when he said:

To be effective and to be treated as credible adjudicative bodies, administrative tribunals must be accountable. They must be accountable to the legislature and the government for fulfilling their mandate in an objective and impartial manner. They must also be accountable to the Canadians who are affected by their decisions. Judith McCormack has said that "accountability relates to being able to identify what a decision is, who made it, why it was made, who influenced it, and who will be affected by it"Footnote 5

While the insights given by Mr. Richard in the text of his speech relate to the possibility for adequate review of a matter, these same principles may also inform individuals and the public about the nature of the matters that have been set before adjudicative bodies and administrative tribunals. What remains to be seen is how useful such decision-making may be to the individual or to society in general, on whose behalf this decision is made?

So how does the goal of promoting "publicness" within the administrative law context necessarily interface with an administrative tribunal’s general obligation to be accountable to both the legislature and the judiciary? The language of the law is often highly technical and virtually incomprehensible to the masses, while the trials and tribulations of the increasing number of specialised administrative tribunals may end up being even more technical, given the nature of the tribunal’s work. As such, the challenge remains to provide meaningful and understandable information to stakeholders, of which the public is included, while providing specialised services to the end-users of the tribunal or adjudicative body.

Promoting Open and Transparent Decision-Making

The promotion of open and transparent decision-making can also find its source in five key values that have been identified by the United States Congress to be of paramount importance between government and the governed. These are: accountability, efficiency, transparency, participation and collaborationFootnote 6. While these values are in no way definitive, they do provide a basis for measuring how policy and actions may be developed in order for adjudicative bodies and administrative tribunals to meet their mandates while ensuring to balance other considerations than simply the bottom-line.

Promoting open and transparent decision-making is challenging, particularly as policy regarding how and in what manner content may be made available remains in development. This being said, possible solutions for making content available have veritably exploded with the advancement of the internet as the pre-eminent communications medium and the "cloud" as the primary storage medium of the 21st century. Where case files have largely continued to exist in paper form and required dedicated centralised registry personnel, new and robust electronic case management systems have allowed for the decentralisation of these services, allowing services to be made available in more locations and with shorter lead times. For example, the Social Security Tribunal, established in 2013, operates their case management system through Service Canada locations, with the electronic copy of documents considered the original. Members reside throughout Canada, allowing the flexibility to have members geographically closer to applicants to hear cases, while also having the possibility to hold hearings through written submissions, teleconference, videoconference or in personFootnote 7.

While these solutions have been effective in simplifying processes for the administration of decisions, the use of technology does not appear to have simplified the process of accessing this information. Where the private sphere has leveraged extranets to simplify the sharing of information in business transactions, these "digital war rooms" have not been as popular for case management purposes. Taking the Federal Court and Federal Court of Appeal as an example, information about the nature of a case is presently freely available. Information concerning the names and contact information of the parties, the submissions they have made in a case and the status of the case before the Court are all easily available with a simple search by name or case number. However, due to the limited use of "electronic" submissions, reproduction of case documents has remained prohibitively expensive for interested parties if they don’t happen to be parties to the caseFootnote 8.

By developing permissions-based systems or by supplying online redacted versions of these case files, adjudicative bodies and administrative tribunals would be able to make themselves more open and transparent to the public, while also providing a more easily scalable and accessible means for parties to access case content. This would also obviate the need dedicating significant amounts of space to the storage and maintenance of said files. Such an organisation would also be useful in cases involving judicial review, where the compilation of large files can be both expensive and time consuming.

While the above-noted examples represent but two possibilities in making administrative decision-making more open and transparent, it is important to realise that there are innumerable alternatives that could also respond to the same goals. Given the equally prominent explosion in privacy legislation, it is possible that individuals may not want details relating to their personal lives in the public sphere. While administrative sanctions, to name but one subject, may not be criminal in nature, they could be very damaging to an individual’s reputation within a community. While greater transparency, may lead to a more democratic and fair society, it may also result in one that is more restrictive and over-bearing.

Creating a more Open and Transparent Society

Ultimately, the goal of maintaining open and transparent administrative proceedings and procedures is with the goal of promoting the values of accountability, efficiency, transparency, participation and collaboration. For a society to function as it should, it is necessary for people to understand how to interact in the public sphere. While criminal law often concerns matters where people’s direct actions normally have direct consequences, matters in administrative law may not be as clear and may require specific actions in order to achieve the desired consequences. By making meaningful information available for stakeholders at all levels, dialogue is possible between the administrative body, the legislator, the judiciary and the public. In this way, governance can be collaborative rather than adversarial and provide a forum for continual improvement rather than a forum of continuous frustration.

These values are particularly important in a society where political participation is not a static concept and is not limited to representation in the legislature. Individuals today are able to communicate in real time regardless of where they are located in a country or in the world and are capable of mobilizing interest quickly and efficiently. People are no longer limited by word of mouth, print or mass media, with Twitter, Facebook and innumerable other social apps and websites able to organise people within moments, whether to stage, local, regional, national or international protests. This has led to profound change in the ways that information can be disseminated, as well as creating a profound risk that the information transmitted could be wrong.

As such, it is incumbent on institutional actors to provide accessible and authoritative information in order to avoid such confusion and provide channels for individuals to act on this information. While the concept of a participatory democracy can trace its history back to Athenian times, the scale with which it is possible for individuals to participate within our democracy has reached untold levels and has the ability to be transformative in how individuals interact with their government.

While it may seem grandiose to believe that in making adjudicative bodies and administrative tribunals fully transparent by default, we can create a more progressive, open and participative society, one has only to look at what subjects administrative law concerns to see that this would no doubt be the case. If individuals were better able to understand income tax cases before the Canada Revenue Agency (CRA), paying these taxes wouldn’t cause so much trepidation. If immigrants to Canada knew how their cases stacked up to other similar individuals, would they be as worried of being deported? Information in the 21st century, more than at any time before, gives power to those that wield it. Lawyers have been able to leverage knowledge of the law to make a living for several hundred years now. Given the increasing cost of such specialised knowledge and the relative explosion of administrative law, it would appear only fair to "level the playing field."