An absence of clear rules in the nomination process of Quebec administrative tribunal adjudicators allows for partisan influence, compromises their independence, potentially raises questions over their impartiality, and casts doubt over the integrity of a system that directly or indirectly affects all Quebecers, according to a recently published report that calls for a common, uniform regime that would apply to all adjudicators.
Unlike some other provinces such as Alberta and Ontario, Quebec does not have a unified regime to appoint adjudicators, validate appointee qualifications, and guarantee independence from government, reveals the 375-page report. Under the current legal framework, nine out of 15 Quebec administrative tribunals are not required under law to appoint adjudicators with special qualifications and nor are they bound by selection criteria, notes the study. There is also an absence of uniformity in working conditions, compensation, and standards of ethics for adjudicators. The length of their mandates, which varies from three to five years, also suffers from a lack of homogeneity.
“The current system lacks uniformity and the protection provided adjudicators is generally insufficient if not archaic,” says the report which took four Quebec law professors five years to complete. The report, entitled “Administrative Justice: Of Independence and Responsibility,” examines the legal framework overseeing Quebec adjudicators and interviewed 28 adjudicators who spoke under condition of anonymity.
Quebec’s legal society acknowledges that the issues raised by the report is “disquieting.” “Objective criteria need to be put in place as well as a transparent process that ensures that nominations are based on competence and not partisanship,” said Johanne Brodeur, the former batonnier of the Barreau du Québec. “But I don’t want to give the impression to citizens that the system is so bad or so corrupted that administrative justice cannot be served. That would be exagerrated, and not a reflection of reality. The vast majority of adjudicators are doing good work.”
There are 466 adjudicators working in Quebec’s 15 administrative tribunals. Over 140,000 cases are handled annually by adjudicators, rendering decisions that have an impact of the basic aspects of the lives of Quebecers, from the cost of electricity to highway accident compensation to wrongful dismissal. Indeed, the researchers point out that all Quebecers will at least once in their lives have recourse to an administrative tribunal and be affected by a decision taken by one of the public agencies.
“One can understand why citizens do not have an absolute confidence in adjudicators whose independence is not evident because the selection criteria, the nomination process and the conditions in which they exercise their functions does not guarantee their independence,” noted Pierre Issalys, a co-author and law professor at the Université Laval. “One can understand why citizens can be a bit sceptical over their independence.”
There appears to be good reason to be wary. The absence of selection rules in the majority of the administrative tribunals opens the door to partisan influence and patronage, according to the study. The government “regularly” uses its power to nominate, renew and determine the length of an adjudicator’s mandate to hand out sinecures, reassign or replace public officials “no longer welcome in their old positions,” or offer plum postings to some on the eve of a change of government. That leads to situations where individuals appointed as adjudicators do not always have the qualifications, legitimacy or preparation necessary to exercise their responsibilities, says France Houle, a law professor at the Université de Montréal and one of the co-authors of the study.
“Since there is an absence of criteria to nominate these people, we do not have the means to examine their competence,” said Houle. “Everybody in the legal community knows about the situation. Twenty years ago this was spoken about in veiled terms but today it’s almost discussed openly.”
Even the organization that represents Québec’s administrative tribunal adjudicators, La Conférence des juges administratifs du Québec (CJAQ), acknowledges that the current nomination system is irreconcilable with the independence that adjudicators should have in order to fulfill their mandate.
“Adjudicators are concerned,” said Daniel Pelletier, an adjudicator and spokesperson for the CJAQ. “We welcome the report and its recommendations to adopt an umbrella legislation to guarantee the independence of administrative tribunal adjudicators. The nomination process should be independent. An adjudicator should not need political influence to maintain his position or to renew his mandate. But we are extremely worried that the report will be shelved.”
That is a feasible possibility, acknowledges Brodeur. The Quebec Ministry of Justice is underfunded, lacks resources and is overwhelmed by its workload, thanks to the implementation of the new Code of Civil Procedure and the controversial Charter of Values that is expected to be adopted if the Parti Québecois is elected, as is widely expected, in the upcoming elections.
Houle has a different take. She is concerned that the report will lay in the dustbin because governments in general are loathe to lose their discretionary power to reward “friends of the party or other political considerations” and replace it with a nomination system that rewards competence. But Houle, like Issalys, is nevertheless moderately optimistic that the changes will take place.
Internal pressures within Quebec, such as the Charbonneau Commission which is currently investigating allegations of bribes, collusion, influence peddling and widespread corruption in the construction industry, may force the government’s hand to “reflect over the legitimacy of public institutions in general,” said Houle. So too may the impending free trade agreement between Canada and Europe. Houle points out that when Great Britain joined the European Union, it was forced to review and revamp its administrative tribunals. Quebec’s courts, adds Houle, may also play a role, now that they have an empirical study that outlines the deficiencies of the Quebec administrative tribunal system.
“Most of the time when there were cases before the courts that dealt with the independence of adjudicators, judges looked at the question by taking into account the guidance they developed over the years and looked at issues such as mobility, job security, and other administrative controls,” explained Houle. “So the discussion was very limited instead of looking at the larger principles at stake such as impartiality, independence and integrity. This study may change that.”
Issalys too is reasonably optimistic, if only because jurisprudence over the past few years has reinforced the notion of independence of adjudicators. “I don’t think any government can resist that trend,” said Issalys. “We are in the presence of a situation where there are disparities between adjudicators that are unjustifiable. It’s time that all adjudicators benefit from a level of independence that is appropriate to their responsibility.”
This story was originally published in The Lawyers Weekly.