The Canada Agricultural Review Tribunal: An Independent Body?

By: Dara Jospe, Faculty of Law, Common Law Section, University of Ottawa, Spring 2012

Table of Contents

  1. Introduction and Identification of Issues
  2. 'How has the common law adopted the Valente factors and applied them to administrative tribunals with no criminal jurisdiction?'
  3. 'To what degree and through what institutional measures can these Valente factors be implemented to safeguard the Tribunal's independence?'
  4. Canada Agricultural Review Tribunal on the Spectrum
  5. How have other tribunals attempted to maintain independence within governmental structures?
  6. Conclusion and Recommendations
  7. Bibliography
  8. Footnotes

I. Introduction and Identification of Issues

A fundamental characteristic of a fair hearing before an administrative body is that the decision-maker and the decision-making process are independent; they should not give either party any preferential treatment or be influenced by any preconceived notionsFootnote 1. This characteristic is vital to the litigants appearing before the tribunals, as well as to the public's confidence in the administration of justiceFootnote 2. "[T]he general public would lose faith in public decision-makers if it were perceived that their decisions were based on irrelevant considerations such as… undue pressure from the government".Footnote 3

The following paper will assess whether the Canada Agricultural Review Tribunal (CART) is an independent administrative body. CART is a quasi-judicial body established by the Government of Canada pursuant to s. 4(1) of the Canadian Agricultural Products ActFootnote 4. CART's mission is:

to provide an independent, fair, informal and timely review of the validity of the administrative monetary penalties issued to any person by a federal agency under the AMP [Agriculture and Agri-Food Administrative Monetary Penalties] ActFootnote 5.

The Tribunal is accountable to Parliament through the Minister of Agriculture and Agri-Food. Consequently, I will determine CART's independence from its Minister.

To do so, I will begin by examining the Supreme Court of Canada's (SCC) decision of R v. ValenteFootnote 6, where the Court first considered the essential conditions of judicial independence for the purposes of s.11 (d) of the Canadian Charter of Rights and FreedomsFootnote 7. Next, I will survey how courts have applied the Valente factors to administrative tribunals with no criminal jurisdiction, and review the differences between courts and administrative tribunals. Subsequently, I will proceed in chronological order through the most significant jurisprudence related to tribunal independence.

Having introduced the background, I will begin the second part of my paper by describing the structure of CART. First, I will describe the origins of CART: how it emerged from two distinct pieces of legislation; and, how it has evolved since 1983. I will emphasize the differences between CART's origins and the origins of other federal boards and tribunals. Specifically, I will stress that CART is one of the only tribunals not listed as an independent institution under Schedule I.1 of the Financial Administration Act (FAA)Footnote 8.

Second, I will describe the current structure of CART by reviewing the CAP Act and the Agriculture and Agri-Food Administrative Monetary Penalties ActFootnote 9. I will assess how these Acts promote CART's independence. I will conclude that both security of tenure and financial security are sufficiently protected by the legislation; however, institutional independence is overlooked and, as such, the Tribunal's independence may be threatened.

I will apply the case law reviewed in Part I to define where CART falls on the spectrum of administrative decision-makers. The courts have held that tribunals that are highly adjudicative are at the end of the spectrum that requires greater independence. Conversely, the courts have deferred to the tribunals' empowering statutes when they are less court-like. I will consider the following factors in determining where CART falls on this spectrum: the types of disputes CART hears; the monetary penalties CART awards; and, the similarities between criminal provisions and the contraventions specified under the AMP Act and Regulations.

Finally, I will examine how other jurisdictions have attempted to maintain independence within governmental structures.

I will conclude by determining that CART is not an independent tribunal and as such, the Government through legislation, or the Minister through Memorandum of Understanding must do more to safeguard CART's independence.

II. 'How has the common law adopted the Valente factors and applied them to administrative tribunals with no criminal jurisdiction?'

A. The Valente Factors

In 1985, the SCC in Valente considered the meaning of an "independent and impartial tribunal" guaranteed by section 11(d) of the Charter. The issue was whether a provincial judge sitting on the Provincial Court in Ontario was an independent tribunal within the meaning of s.11 (d). The focus in Valente was on the relationship of the judges and the Provincial Court to the executive government of Ontario, through the Ministry of the Attorney GeneralFootnote 10.

The Court defined independence:

The word "independent" in s.11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions and guaranteesFootnote 11.

As the Court notes, judicial independence is safeguarded in the ConstitutionFootnote 12. The crux of judicial independence is ensuring that judges are free from any interference or influence. As Dickson C.J., notes, "no outsider – be it government, pressure group, individual or even another judge – should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision".Footnote 13

In Valente, the Court considered the essential conditions of judicial independence for the purposes of s.11 (d), recognizing that these must convey "some reasonable relationship to the variety of legislative and constitutional provisions in Canada governing matters which bear on the judicial independence of tribunals"Footnote 14. A unanimous Court identified three essential conditions necessary to ensure independence from government: security of tenure, financial security, and institutional control. Together, these guarantees reassure the public that judicial decision-making is free from interferenceFootnote 15. I will discuss each of these guarantees in turn.

i. Security of Tenure

Security of tenure provides that, once appointed, a judge may serve on the bench until the age of retirement, which is 75. The Executive or another appointing authority can only remove judges from office if an independent investigation shows good reason to do so. Security of tenure therefore prevents the Executive from removing a judge for rendering decisions that do not meet its approval. Consequently, at-pleasure appointments, which allow Cabinet to remove judges without cause and without a hearing, violate constitutional guarantees of judicial independenceFootnote 16.

ii. Financial Security

Financial security, the second guarantee, ensures that "the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive"Footnote 17.

The Executive cannot alter judges' pay for arbitrary reasons, such as dissatisfaction with decision-making. Accordingly, the Executive guarantee judges a fixed salary. In addition, financial security ensures that the amount judges are paid is sufficient to keep them from seeking supplementary income. This is important so that judges are not inclined to take positions which may interfere with their role as adjudicatorsFootnote 18.

iii. Institutional Control

The final guarantee of tribunal independence is institutional control with respect to administrative issues which have a direct effect on the exercise of judicial functions. The Court distinguished between what is desirable, namely the acquisition of greater administrative autonomy, and what is essential: "The essentials of institutional independence… may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function"Footnote 19. Administrative issues which have a direct effect on the exercise of judicial functions are the assignment of judges, sittings of the court and court lists, as well as the allocation of courtrooms and direction of the administrative staff employed in carrying out these functionsFootnote 20. The Court distinguished these administrative issues from an increased measure of autonomy over financial and personnel aspects of administrationFootnote 21. Nevertheless, in Bisson c. QuébecFootnote 22, the Quebec superior court ruled that the government must provide judges with "all the human, financial and material resources necessary for them to perform their judicial function"Footnote 23.

All three essential conditions of judicial independence endeavor to ensure that judges are not put in compromising situations where they may be inclined to make decisions in order to protect their own interests.

B. Application of the Valente Factors in the Administrative Law Context

i. Tribunal independence

The Valente factors guaranteeing judicial independence create a foundation for tribunal independence. However, tribunals differ from courts in at least one crucial way: administrative bodies are created by the executive government and maintain a link with a Cabinet ministerFootnote 24. As Flood and Sossin note:

Given the political nature of the executive branch of government, and in particular its responsibility to create and promote the policies of government, one can easily see how members of the general public may be confused, if not wary, that inappropriate interference may stem from the regular interaction between government departments and tribunalsFootnote 25.

Tribunal litigants might be concerned that the minister may influence the outcome of particular files. This concern may be particularly troubling in areas where the government is frequently an opposing party before the tribunal. Consequently, in Valente, the SCC proposed that the three guarantees of judicial independence could also apply to tribunals.

However, the Valente guarantees should not be applied as strictly to tribunals as they are to courtsFootnote 26. In Matsqui, the SCC maintained that the guarantees of tribunal independence should be applied in a flexible way to account for a specific tribunal's functions. Lamer C.J. notes: "The requisite level of institutional independence will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office"Footnote 27. The Court also established a test to determine independence: "whether a reasonable and right-minded person… would have reasonable apprehension of bias on the basis that the members of the appeal tribunals are not independent"Footnote 28.

2747-3174 Québec Inc v Québec (Régie des permis d'alcool)Footnote 29 provides an example of a contextual application of the Valente factors. There, the Court held that the directors of Quebec's liquor licensing board had sufficient security of tenure despite the fact that their terms of office were limited. The SCC held that tribunal independence does not require that tribunal members hold office for life. Fixed term appointments were deemed adequate because the directors could only be dismissed for specific reasons and they could challenge their dismissals in courtFootnote 30.

In Régie, the respondent also challenged the board's administrative control. It claimed that the amount of contact between the liquor board and the Minister of Public Security jeopardized the board's institutional independence. The Court reasoned, however, that it was customary for a Minister to have several points of contact with a tribunal under his or her jurisdiction. Furthermore, no evidence established that the Minister could affect the board's decision-making. As such, the Court found that the tribunal enjoyed adequate independenceFootnote 31.

ii. Judicial Independence v. Tribunal Independence

Régie demonstrates that courts and tribunals require different degrees of independence. Litigants have struggled to understand why tribunals are not held to the same degree of independence as the courts. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch)Footnote 32 the Court offers a good explanation for this disparity.

The British Columbia Liquor Appeal Board found that Ocean Port Hotel was in violation of the Liquor Control and Licensing Act. On judicial review, Ocean Port submitted that the Board lacked sufficient independence to render a fair decision, because the Board members served at-pleasure appointments. Furthermore, as an administrative tribunal exercising "adjudicative functions", the Board ought to have had the same degree of independence as courts.Footnote 33

The SCC disagreed and held that the constitutional protections of judicial independence do not apply to administrative decision-making bodies. The Court maintained that judicial independence ensured both the separation of powers and the protection of the judiciary from executive interferenceFootnote 34. However, administrative tribunals are not separate from the executive branch:

Administrative tribunals… 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 the 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 itFootnote 35.

In Ocean Port, the Court asserted that Parliament determines, and expresses in statute, the degree of independence required of a particular tribunal. Absent constitutional restraints, courts must respect Parliament's intent. Furthermore, because tribunal independence is a common law principle, the legislature can override it with express statutory languageFootnote 36.

Since Ocean Port however, courts have seen an increased push for administrative tribunals to have the same independence as courtsFootnote 37. This may be a result of the SCC's decision in Ell v. AlbertaFootnote 38, where the Court extended the constitutional protection of judicial independence to justices of the peaceFootnote 39. In fact, in McKenzie, Justice McEwan reviewed the Ell decision and concluded: "It now seems clear that essentially anything broadly labelled a "court" or with at least one foot within the "judicial branch" of government will attract constitutional protection"Footnote 40.

In McKenzie, the Court extended the principle of independence to administrative tribunals that have court-like powers and procedures. Justice McEwan held:

The question left unanswered by Ocean Port was what to make of tribunals that are not "government" decision makers. In finding that tribunals such as the Liquor Appeal Board are not constitutionally required to be independent, the court was addressing a decision-making entity with functions that could not conceivably be folded straight back into the courts, owing to its nature. Its policy-making and policy-driven adjudicative responsibilities are of a type that could only ever be supervised, not performed, by courts.

Tribunals that are assigned responsibilities lifted straight from the courts' jurisdiction are obviously different… the same function, depending solely on whether it is located in a court or in a tribunal, may require the constitutional protection of a fair and independent arbiter, or may be left to whatever cowed or needy sycophant the government, in its absolute discretion, thrusts into the judgment seat. This is such an affront to the notion of "a fair and public hearing by an independent and impartial tribunal," guaranteed in writing elsewhere in the constitutional firmament, and is so fundamentally illogical and arbitrary, that it cannot be reconciled with the concept of the rule of law itselfFootnote 41.

As Bryden notes, this passage refers to four different situations where constitutional principles should apply to tribunals: first, tribunals that exercise jurisdiction that has been removed from a court; second, tribunals that hear legal disputes between private parties; third, tribunals that exercise judicial functions that could be folded back into the courts; and fourth tribunals that adjudicate on a judicial or quasi-judicial basisFootnote 42.

In Bell, the Court emphasized the existence of a wide range of types of tribunals and that to establish the appropriate degree of independence all the functions of a given tribunal must be considered when determining where on the spectrum it falls:

All aspects of the tribunal's structure, as laid out in its enabling statute, must be examined, and an attempt must be made to determine precisely what combination of functions the legislature intended that tribunal to serve, and what procedural protections are appropriate for a body that has these particular functionsFootnote 43.

The Court applied this reasoning to the Canadian Human Rights Tribunal and considered several factors: the main function of the tribunal is adjudicative; it conducts formal hearings in a manner similar to formal trials; it is empowered to find facts, interpret law, apply law to the facts, and award remedies; the Tribunal is not involved in crafting policy; and individuals' dignity is affected by the Tribunal's decisions. Consequently, the Court determined that a high degree of independence was appropriate. The more judicial-like the functions and processes, the more likely the requirements for independence will apply.

Canadian jurisprudence emphasizes a judicial recognition that tribunals must be allowed to operate effectively and independently. However the amount of independence will differ depending on the functions of the tribunal. It is necessary to determine where CART falls on this spectrum in order to ascertain whether it is independent enough. First, however it is important to examine the structure and function of CART.

III. 'To what degree and through what institutional measures can these Valente factors be implemented to safeguard the Tribunal's independence?'

A. Canada Agricultural Review Tribunal

CART was created by statute in 1983 as the Review Tribunal under the Canada Agricultural Products Standards Act and then continued in 1985 under the CAP ActFootnote 44. It was given new responsibilities in 1997 under the AMP Act to review the validity of administrative monetary penalties (AMPs) levied by the Canadian Food Inspection Agency, and later by the Canada Border Services Agency and the Pest Management Regulatory AgencyFootnote 45. This task now accounts for all of the Tribunal's work.

It is curious that CART emerged from two distinct pieces of legislation. Most of the tribunals in operation today have their own enabling statutes, such as the Canadian International Trade Tribunal ActFootnote 46. Through this enabling act, the Government established the Canadian International Trade TribunalFootnote 47 and clearly indicated the tribunal's mandateFootnote 48, compositionFootnote 49, organizationFootnote 50, and work.

CART, on the other hand is placed in the legislation as an after-thought: there is limited detail about its structure and function, which leaves much open to the interpretation of the Minister.

It is also problematic that CART's powers derive from two pieces of legislation. CART was established under the CAP Act and had certain functions; notably the CAP Act enabled the Tribunal to review decisions between two individual private parties, such as a vegetable vendor and buyerFootnote 51. Since CART did not review decisions between the Government and private citizens, there was no need to establish safeguards of independence.

The AMP Act introduced new powers; hearings were no longer about private transactions but about regulatory compliance. In fact, the AMP Act replaced criminal provisions: "The Purpose of the Act is to establish as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-foods Acts"Footnote 52. The Minister of Agriculture and Agri-Foods also became a party to the proceedings.

However, the Government did not amend CART's structure to accord with these new duties or to account for the new parties to the hearings. As it stands now, the CAP Act establishes most of CART's constitution, yet the AMP Act establishes CART's work. Moreover, these two statutes are not even consistentFootnote 53.

In addition, almost every federal tribunal is listed as an independent institution under Schedule I.1 of FAA. However, since CART was established prior to the enactment of the FAA in 1985 and the legislature never revised the legislation to reflect CART's new functions, it was never listed under Schedule I.1.

A brief description of the FAA will reveal why not being listed as a Schedule I.1 entity is critical to CART's independence.

i. The Financial Administration Act

The FAA is Parliament's legal framework for the financial management and accountability of public service organizationsFootnote 54. The FAA sets up a number of schedules which determine to whom entities are accountable. Schedule 1 entities are usually departments, such as the Department of Fisheries or Agriculture, and they are accountable to their Minister. Entities, such as agencies, boards, or tribunals are usually found on Schedule I.1. Designated by a Deputy Minister, they receive appropriations from, and are accountable to, Parliament. Entities not listed on any schedule must obtain their funding from another entity that is listed. Each time an unlisted entity needs additional funds, it must make a request to its supervising entity. The Minister of the supervising entity must approve any financial decisions, including entering into contractsFootnote 55. As such, an unlisted entity has no control over its financial resources.

CART obtains all of its funds from Agriculture and Agri-Food Canada (AAFC)Footnote 56. The Tribunal must use AAFC financial services and accordingly must comply with the AAFC policies and approvals. Conversely, Schedule I.1 tribunals only have to comply with the advice and verification of conformity with Treasure Board guidelines and policies. Moreover, the Minister of Agriculture and Agri-Foods must approve of every expense.

B. Canada Agricultural Review Tribunal & Valente

i. Does CART's current structure promote Tribunal independence?

Now that I have reviewed the Valente factors and the structure of CART, I will assess how CART's structure promotes tribunal independence.

CART's 2010-2011 Annual Report states that the Tribunal "maintains an independent, quasi-judicial, arm's length relationship from Agriculture and Agri-Food Canada and its Minister, as required by the provisions of the [Canada Agricultural Products (CAP)] Act and the Agriculture and Agri-Food Administrative Penalties Act (Amp Act)"Footnote 57. Accordingly, I will review the relevant legislative provisions as they relate to the Valente factors: security of tenure, financial security, and institutional independence. The AMP Act implies that CART should provide independent oversight of the issuance of monetary penaltiesFootnote 58, but does not explicitly address independence. As such, I will focus on the CAP Act.

ii. Security of Tenure

Section 4 of the CAP Act ensures security of tenure. Subsection 4(2) stipulates that "Each member shall be appointed for a term of not more than five years and shall hold office during good behaviour, but may be removed by the Minister for cause"Footnote 59. As discussed above, security of tenure requires that the Executive be prevented from removing a judge for rendering decisions that do not meet the government's approval. Subsection 4(2) ensures that Tribunal members cannot be removed at the pleasure of the Executive without pre-specified cause, and consequently satisfies the main requirement of security of tenure. The provision further guarantees security of tenure by fixing the length of a Tribunal member's term at the time of appointmentFootnote 60. Thus, the Executive cannot arbitrarily end an appointment during a term.

In addition, CART also employs an open and merit-based appointment process for tribunal membersFootnote 61. This guards against the appearance of bias; the appointment process is free from political influence and personal favouritism.

Finally, section 4 contains provisions which protect Tribunal independence generally. A Tribunal member cannot be employed in the federal public administrationFootnote 62. Furthermore subsection 4.2(2) states:

A member of the Tribunal shall not accept or hold any office or employment that is inconsistent with the member's duties or take part in any matter before the Tribunal in which the member has an interestFootnote 63.

The objective of these two subsections is to avoid any conflicts of interest and therefore circumvent any issues of impartiality, independence, or the appearance thereof.

The CAP Act ensures security of tenure through section 4. Consequently, CART has the statutory basis required to ensure impartiality and to engender public confidence in tribunal members' security of tenure.

iii. Financial Security

In Valente, the Supreme Court found that a tribunal's enabling act must provide for the right to remuneration and that "in no way may the Executive impinge upon this right in such a way as to affect the independence of a judge individually or collectively"Footnote 64.

The CAP Act sets out remuneration in section 7, but the precise rate is ultimately fixed by Order in Council:

7.1(1) Each full-time member of the Tribunal shall be paid such salary as is fixed by the Governor in Council and each part-time member of the Tribunal is entitled to be paid such fees or other remuneration for that member's services as may be fixed by the Governor in CouncilFootnote 65.

This provision ensures that the Executive cannot alter Tribunal members' pay for arbitrary reasons such as discontent with their decisions. However, the Act does not set out how the Governor in Council will fix the salary. In theory then, the CAP Act does not provide sufficient financial security. Nevertheless in practice there is financial security. The Governor in Council establishes fixed salaries for all appointees. These salaries are non-discriminatory. When a job is advertised, the position is designated at a certain salary level. CART's members receive fixed salaries with no regard to performance. Therefore, though the CAP Act does not fully safeguard CART members' financial security, the Executive has put in safeguards which doFootnote 66.

In addition, subsection 7.1(2) states that the Governor in Council will compensate Tribunal members for all reasonable travel and living expenses incurred in the course of their dutiesFootnote 67. This provision ensures that the Government cannot limit Tribunal members' ability to do aspects of their job by refusing to pay for things such as travelFootnote 68. Together, these two provisions provide CART with sufficient financial security to maintain its independence from the Minister in this regard.

iv. Institutional Independence

Though security of tenure and financial security are both protected by the CAP Act, institutional independence is overlooked. Subsection 5(3) describes the duties of the Tribunal Chairperson as including apportioning work among Tribunal membersFootnote 69. This provision is irrelevant inasmuch as the Chairperson is the only member of the tribunal. It is a result of poor legislative design, not a substandard appointment process.

Similarly, subsection 4.3 provides for contractual assistance:

The Board or the Tribunal may, for specific projects, enter into contracts for the services of persons having technical or specialized knowledge of any matter relating to the work of the Board or Tribunal to advise and assist it in the exercise of its powers or the performance of its duties and functions under this ActFootnote 70.

However, we must juxtapose this provision with subsection 6(4), which deals with staff and facilities. That subsection states that the Minister may provide the Tribunal with additional employees as necessary for the proper conduct of businessFootnote 71. Consequently, the effect of subsection 6(4) is essentially to diminish the power of subsection 4(3): if the Minister does not believe that additional employees are required, then the Minister may simply designate a project as not ‘specific' or determine that the knowledge needed is not ‘technical or specialized'.

Similarly, there is evidence that the Minister has been unfair in interpreting other human resource provisions of the CAP Act. The Minister's treatment of subsection 4.1(2) provides an example. The subsection stipulates that the Chairperson and at least one other Tribunal member must be "a barrister or advocate of at least ten years standing at the bar of any province or a notary of at least ten years standing at the Chambre des notaires du Québec"Footnote 72. However, the Minister has interpreted this provision to mean that an additional member would have to be a lawyer of at least ten years standing; not that there must be at least two members, both of whom are lawyers. The Minister's failure to generously interpret the statute has resulted in inadequate staffing.

In addition, since CART is not a Schedule I.1 tribunal, it does not control its funds. The Minister is in complete control of the Tribunal's finances and, as such, has the last word on all financial matters. Thus CART must always rely on subsection 6(4) so CART has no control over its human resources.

Finally, subsection 8(3) states that the Tribunal may make rules governing: the practice and procedure in respect of hearings; the time and manner in which applications and notices must be made or given; and, the work of the Tribunal. These powers, however, are subject to the approval of the Governor in Council.

At first glance, then, the Tribunal does not appear to have sufficient institutional independence to ensure impartiality and to engender public confidence. This preliminary conclusion is consistent with Raymond Chabot Grant Thornton's (RCBT) findings that CART's current structure threatens the independent, arms-length relationship with the Minister of Agriculture and Agri-Foods and the Department of AgricultureFootnote 73.

RCBT identified two main areas where the tribunal's independence is, or might be perceived to be, compromised: first, in accessing legal services and second, in securing an adequate financial base for the TribunalFootnote 74.

However, as previously mentioned, the Court in Valente distinguished administrative issues that directly affect the exercise of judicial functions from an increased measure of autonomy for the courts over financial and personnel aspects of administrationFootnote 75. Accordingly, the problems identified by RCBT may not compromise CART's independence. However, Bryden maintains that the personnel and financial aspects of administration typically assume critical importanceFootnote 76. Moreover, as Laverne notes "Budgetary interference by the government to which the tribunal is accountable is a factor that could significantly affect the tribunal's ability to provide procedural fairness. Inadequate funding can lead a tribunal to develop shortcuts in its procedures"Footnote 77.

Nonetheless, tribunals are not courts and tribunal members are not guaranteed the same protections as judges. When tribunals are less court-like, the courts have deferred to the tribunal's empowering statute, whereas the courts have found that tribunals that are highly adjudicative require the same independence as courts.

In order to determine the extent of protection the Government should afford CART, I must determine where CART sits on the spectrum of tribunal and court.

IV. Canada Agricultural Review Tribunal on the Spectrum

The courts have examined several factors to determine how adjudicative a tribunal is and accordingly, how high a degree of independence is appropriateFootnote 78. The more judicial-like the functions and processes, the more independence is required. The court in McKenzie cited four different situations where the constitutional protection of a fair and independent arbiter should apply to tribunals. I will examine each in turn.

The first situation is tribunals that exercise jurisdiction that has been removed from a court. "[A] province could not take adjudicative authority away from a court and confer it on a body that did not have at least some indicia of independence enjoyed by the courts"Footnote 79. As previously mentioned, CART hears many disputes that were previously heard by a courtFootnote 80. The Legislature cloned many criminal offences into administrative violationsFootnote 81. However, it is incorrect to conclude that CART now exercises jurisdiction that the Government removed from a court. The offences were cloned and not eliminated. Prosecutors have discretion to proceed under the criminal provisions or to the administrative monetary provisions, but not both. Accordingly, courts still have authority to hear the offences; the behavior complained of can take on a life under either jurisdiction.

Nevertheless, when the AMP scheme was first designed, it was the legislature's intent that it be a cost saving measure across government; it would remove a number of cases from the court system; it would provide for a challenge process for anyone seeking redressFootnote 82. Consequently, we could interpret that CART exercises jurisdiction that has been removed from a court.

The second situation cited in McKenzie is tribunals that hear legal disputes between private parties. CART was first established to hear disputes between private parties under the CAP Act. In theory it still could hear legal disputes between private parties but in practice it does notFootnote 83. CART currently only hears disputes between citizens and the Minister of Agriculture and Agri-Food. This second factor then would not apply and accordingly, would not guarantee CART constitutional protection of independence.

The third situation which deserves constitutional protection is tribunals that exercise judicial functions that could be folded back into the courts. This third situation distinguishes tribunal functions that could not be performed by the courts, for example, "a tribunal that is so integrated into is governmental or regulatory scheme that its adjudicative activities cannot easily be teased out from its broader regulatory mandate"Footnote 84.

CART's main function is to provide a timely, independent, fair and informal review of the validity of administrative monetary penalties issued to any person by a federal agency under the AMP Act. In addition, the Tribunal does not engage in policy work, rather it exists only as an agency that does judicial review.

This oversight function could certainly exist in the courts. This is clear insofar as courts have jurisdiction to hear the same issues as CART and prior to CART's existence, the courts heard all of the cases pertaining to agricultural or agri-food disputes and violations. There is no particular reason why one could not bring a violation to a superior court. However, courts are costly and time consuming, and judges do not have the relevant expertise. In contrast, the Chairperson is an expert researcher in food and agriculture law. These are the very reason we have tribunals: so that individuals have an opportunity to have their disputes addressed in a forum that is easier for them to use, less formal, and less expensive than the court system. Nevertheless, CART's function could exist in the courts.

Finally, the court in McKenzie considered that tribunals that adjudicate on a judicial or quasi-judicial basis should have constitutional protection.

The idea here would be that if a government holds out to parties the prospect of independent adjudication through a "quasi-judicial" tribunal, it is not entitled to undermine that promise by failing to put in place structures that give parties confidence that the adjudicators will not be subject to manipulation or illegitimate pressureFootnote 85.

Though CART's annual reports state that CART is "quasi-judicial" body, we must examine the legislation to see if this is in fact correct. The CAP Act established CART as a superior court of recordFootnote 86. As such, the Tribunal has the power to swear and examine witnesses, the power to produce and inspect documents, and the power to enforce orders and other matters necessary for the due exercise of its jurisdictionFootnote 87. In addition to its powers, the Tribunal has the following privileges:

s.8(2)

  1. issue a summons requiring a person
    1. to appear at the time and place stated in the summons to testify to all matters within the person's knowledge relative to any subject-matter before the Board or the Tribunal, as the case may be, and
    2. to bring and produce any document, book or paper in the person's possession or under the person's control relative to that subject-matter;
  2. administer oaths and examine any person on oath; and
  3. during a hearing, receive such evidence as they consider relevant and trustworthy.

Therefore, CART conducts formal hearings in a manner similar to formal trials; it is empowered to find facts, to interpret law, apply law to the facts and to award remedies. In addition, the Tribunal is not involved in crafting policy.

CART does not affect individuals' interests as seriously as other tribunals, such as the Human Rights Tribunal, which considers interests like human dignity. Nevertheless, CART can seriously affect individuals: its sanctions can result in financial hardship, increased surveillance, and loss of reputation among government circles, competitors, and clientele.

Therefore, CART exercises jurisdiction that has been removed from a court, CART's function could exist in the courts, and CART functions at the quasi-judicial end of the spectrum of tribunal activities. Consequently it deserves the constitutional protections of independence offered to courts and court-like bodies. Given these functions, the jurisprudence requires that new measures be put in place between the Tribunal and the Department of Agriculture and Agri-Food to prevent any compromise of the Tribunal's independence.

Before determining what measures should be put in place, I will examine how other jurisdictions have attempted to maintain tribunal independence within governmental structures. These efforts will help inform my recommendations for CART.

V. How have other tribunals attempted to maintain independence within governmental structures?

There is an enormous range of boards and tribunals in existence both in Canada at the federal and provincial levels as well as abroad. These administrative bodies vary with respect to their legal qualifications and their range in function; some have court-like functions while others have policy-making roles. It is thus difficult to compare tribunals since the functions are so diverse.

There is no clear consensus among Canadian commentators on an ideal tribunal structure that is able to serve the needs of every jurisdiction, all types of caseloads and disputants, and all types of subject matter. This tends to complicate the search for simple solutions to the problem of striking an appropriate balance between tribunal independence and accountability, and may even undermine our ability to reach agreement on a set of broad principles that are universally applicableFootnote 88.

Nevertheless, we can look to see what other jurisdictions have done in order to gain some general guidance

i. British Columbia's Tribunals

British Columbia recently enacted legislation to reinforce independence amongst all tribunals; no matter how adjudicative. As Flood et al. note: "British Columbia's government determined that reform was needed to ensure administrative tribunals had modern mandates and the statutory tools and processes necessary to operate effectively in a complex, changing society"Footnote 89.

The provincial legislature in British Columbia enacted the Administrative Tribunals ActFootnote 90 to provide guiding principles and uniformity to various aspects of the administrative justice system in the provinceFootnote 91. Section 3 of the ATA provides a good example. It stipulates that tribunal members should be appointed for an initiation terms of two to four years, with reappointment for additional terms of up to five years. The ATA also makes provision for the establishment of rates of remuneration by the tribunal's host minister in accordance with treasury board directivesFootnote 92.

As Bryden notes:

Legislation can be used to provide a general framework for tribunal independence and accountability while identifying in advance the circumstances that warrant exceptional treatment. It is no accident, therefore, that Canadian law reform efforts directed at the administrative justice system generally and the role of tribunal independence specifically tend to promote legislation as the instrument of choice for addressing these issuesFootnote 93.

ii. United States Office of Administrative Law Judges (Agricultural Cases)

The United States of America's (U.S.) administrative law also falls under an overarching legislation which guarantees independence. The Office of Administrative Law Judges (OALJ) is housed in the United States Department of AgricultureFootnote 94. The OALJ is a quasi-judicial body that consists of three administrative law judges (ALJs) who hear cases under s.7 (1.131) of the Code of Federal RegulationsFootnote 95. The proceedings are subject to the Administrative Procedures ActFootnote 96.

As the title of the act suggests, the U.S. does not target their legislation by industry or department; the APA covers all administrative tribunals. The APA provides a number of provisions designed to guarantee the independence of all ALJs: first, judges cannot perform duties inconsistent with their role as ALJsFootnote 97; second, when ALJs are conducting a hearing, they are not responsible to, or subject to the supervision or direction of employees or agents engaged in the performance of investigative or prosecution functions for the agencyFootnote 98; third, ALJs cannot consult any person or party, including other federal agency officials concerning a fact at issue in the hearing unless on notice and only if there is an opportunity for all parties to participateFootnote 99; fourth, ALJs must be assigned to cases in rotationFootnote 100; fifth, the Executive can only remove ALJs for good cause. The Civil Service Commission makes a determination after a hearing on the recordFootnote 101; sixth, the Executive must appoint ALJs according to merit, based on scores achieves in a comprehensive testing procedureFootnote 102; finally, the Civil Service Commission controls the ALJs' pay. To further ensure ALJs' independence, agencies may not rate ALJs' job performance or grant any monetary, honorary, or incentive payFootnote 103.

The APA thus guarantees security of tenure and financial security in a manner similar to the CAP Act. As Verkuil notes: "independence is based largely on three statutory arrangements: the bipartisan appointment requirement; the fixed term appointment; and the requirement that removal be limited to express cause"Footnote 104. These arrangements ensure that a President cannot discipline an ALJ for purely political reasons.

Moreover, in Butz v. EconomouFootnote 105, the United States Supreme Court recognized that the role of a federal administrative law judge is "functionally comparable" to that of a judge. The Court held:

[An ALJ's] powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See § 556 (c). More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agencyFootnote 106.

In fact, ALJs were previously called 'hearing examiners'Footnote 107. The Legislature changed the name to reflect the hearing examiners' actual role as functionally equivalent to trial judges. The Government believed that 'hearing examiner' connoted a more bureaucratic role rather than a judicial once. In 1978, the APA was amended to include the name change.

These legislative provisions in conjunction with the jurisprudence do not seem to guarantee institutional control. However, the Chief Judge of the OALJ (Agricultural Cases) reports to the Assistant Secretary for Administration, not the Secretary of Agriculture. Furthermore the Chief Judge provides general management to the OALJ and all case assignments are made by the Chief Judge. As Verkuil notes, "To some extent the executive branch has overcome the independence problem by giving more powers to the Chairperson of independent agencies. Over the years, a variety of presidentially inspired reorganization plans have transferred powers over the agencies' budget, hiring and priority-setting to the chair"Footnote 108.

CART can learn from both the U.S.'s administrative law structure and British Columbia's recent efforts to enhance its independence.

VI. Conclusion and Recommendations

CART's current structure threatens the independent, arms-length relationship with the Minister of Agriculture and Agri-Foods and the Department of Agriculture. CART lacks structural independence and administrative autonomy, which create the opportunity for the Minister of Agriculture and Agri-Food to interfere, or be perceived to as interfering with the Tribunal's decision-making.

CART is a quasi-judicial body that conducts formal hearings in a manner similar to formal trials. Given its functions, the jurisprudence requires that new measures be put in place between CART and the Department of Agriculture and Agri-Food to prevent any compromise of the Tribunal's independence. There are several ways to do this: first, CART could be listed as a Schedule I.1 entity and accordingly, a separate branch of the public service for FAA purposes. This would clearly identify the Tribunal as being independent from the Minister of Agriculture since CART would have its own source of funding. In addition, the Legislature could enact overarching legislation which protects all administrative bodies as the British Columbia and U.S governments did.

However, legislation is time consuming, expensive, and often difficult to enact. It is perhaps for this reason that British Columbia also created the Ministry of the Attorney General of the Administrative Justice Office. This office provides continuing support in administrative justice reformFootnote 109. An informal institution has its benefits. As Bryden notes:

The advantage of informal institutional arrangements that recognize tribunal independence is that it is possible to make progress on an incremental basis without the need to muster the same level of political commitment that is needed to get administrative justice issues onto the legislative agendaFootnote 110.

CART would certainly benefit from a comparable office at the federal level.

Finally, a memorandum of understanding between CART and the Minister of Agriculture could help identify areas of agreement and disagreement with respect to funding and personnel. This has the potential to form a foundation for a secure and mutual understanding of the relationship between the Tribunal and the Minister.

The disadvantage of both the informal institution and the memorandum of understanding is that in the absence of formal legal recognition, improvements made under one government or one minister may not continue when another takes office. Nevertheless, in the absence of legislative changes, informal developments will certainly help to achieve greater independence than CART currently enjoys.

Bibliography

Legislation

Administrative Procedure Act, 5 USC § 551 et seq (1946).

Agriculture and Agri-Food Administrative Monetary Penalties Act, RSC 1995, c 40.

Agriculture: Administrative Regulations, 7 CFR § 1.131 (1977).

An act respecting administrative justice, RSQ c J-3, s.38, as amended by SQ 2005, c 17, s 2.

Canada Agricultural Products Act, RSC 1985, c 20 (4th Supp).

Canadian International Trade Tribunal Act, RSC, 1985, c 47 (4th Supp).

Criminal Code of Canada, RSC 1985, c C-46.

Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11).

Health of Animals Act SC 1990, c 21. 500.

Financial Administration Act, RSC 1985, c F-11.

Jurisprudence

2747-3174 Québec Inc v Québec (Régie des permis d'alcool), [1996] 3 SCR 919.

Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884.

Beauregard v. Canada, [1986] 2 SCR 56.

Bisson c. Québec, [1993] JQ no 1600, RJQ 2581.

Butz v Economou, 438 US 478 (1978).

Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3.

Ell v Alberta, 2003 SCC 35 [2003] 1 SCR 857.

Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3.

McKenzie v Minister of Public Safety and Solicitor General (2007), 71 BCLR (4th) 1 (BCCA).

Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781.

R v Valente, [1985] 2 SCR 673.

2747-3174 Québec Inc v Québec (Régie des permis d'alcool), [1996] SCR 919.

Secondary Sources

Brudzinski, Walter. "Greater Independence for ALJs plus Cost Savings for Agencies: The Coast Guard Model" 30 J Nat'l Ass'n L Jud 1.

Bryden, Philip. "McKenzie v. British Columbia (Minister of Public Safety and Solicitor General): A Constitutional Guarantee of Tribunal Independence?" (2007) 40 UBC L Rev 677.

------------------, "A Canadian Perspective on Tribunal Independence" in Robin Creyke, ed, Tribunals in the Common Law World (Sydney: The Federation Press, 2008) 62.

CART, Annual Report, (Ottawa: CART, 30 June 2011).

Flood, Colleen & Lorne Sossin. Administrative Law in Context (Toronto: Emond Montgomery Publications Limited, 2008).

Flood, Diane, Elizabeth Loughran & Richard Rogers. "British Columbia's New Administrative Tribunals Act" (2005), 18 Canadian Journal of Administrative Law and Practice 217.

France, Cherie. "A Tale of Two Nations: Monitoring Agricultural and Agri-Food Agencies within Canada and the United States" (2010) [unpublished, archived at the Canadian Agricultural Review Tribunal].

Gannon, Rachelle. "The Right to be Seen, Heard and Represented: A Comparative Analysis between Administrative Law Practices in the United States and Canada with Respect to the Enforcement of Agriculture and Agri-Food Laws" (2011) [unpublished, archived at the Canadian Agricultural Review Tribunal].

Jacobs, Laverne. "A Wavering Commitment? Administrative Independence and Collaborative Governance in Ontario's Adjudicative Tribunals Accountability Legislation" (2010) 28 Windsor YB Access Just 285.

Lubbers, Jeffrey. "APA-Adjudication: Is the Quest for Uniformity Faltering" (1996) 10 Admin L J Am U 65.

Privy Council Office, "Governor in Council Appointments Procedure Guide" (November 2008) online: Privy Council Office (http://www.pco-bcp.gc.ca/premier.asp).

Raymond Chabot Grant Thornton, "Canada Agricultural Review Tribunal: Business Case" (2011) [unpublished, archived at the Canadian Agricultural Review Tribunal].

Schuurman, Jeane."History of the Canadian Agricultural Review Tribunal"(2009) [unpublished, archived at the Canadian Agricultural Review Tribunal].

United States Department of Agriculture, "About OALJ", online: United States Department of Agriculture (http://www.dm.usda.gov/oaljdecisions/about.htm).

Verkuil, Paul. "The Independence of Independent Agencies: The Purposes and Limits of Independent Agencies" (1988) Duke L J 257.

Footnotes