The critical issue that I would like to discuss in this presentation is the role that the principle of access to justice should or should not play in the analytical process used to determine the judicial review standards for administrative proceedings.
As we will see, in some cases, the Supreme Court has shown concern for the imperatives of access to justice in the analysis of certain matters pertaining to administrative litigation.
Decentralized administrative processes are governed by major imperatives of efficiency and finality, considering the nature of the matters raised, such as social issues, benefits or compensation, and the volume of decisions involved.
The cascade of successive administrative proceedings does not promote access to an efficient administrative justice system that renders decisions within reasonable time frames.
For certain administrative schemes, by the time a case comes under judicial review before the Superior Court, two, three or sometimes four adjudicative levels have already examined the matter.
For example, in the context of occupational accidents and diseases, the Act respecting industrial accidents and occupational diseases1 provides that the Commission des normes, de l’Ă©quitĂ©, de la santĂ© et de la sĂ©curitĂ© du travail must conduct an initial assessment of all compensation claims and any payable indemnity – level #1.
A person who believes they were wronged may apply to the Commission for an internal review – level #2. That review decision from the Commission can be appealed before the Tribunal administratif du travail – level #3. Under certain circumstances, the person can ask the Tribunal administratif du travail to review or revoke its own decision2 – level #4.
The decision of the Tribunal administratif du travail is liable to review if an application for judicial review is filed with the Superior Court – level #5. Upon leave, the Court of Appeal may hear an appeal from a judicial review judgment rendered by the Superior Court – level #6. The Supreme Court can also grant leave to appeal if it believes that the matter is of national interest – level #7.
In Frères Maristes (Iberville) c. Laval (Ville de), the Quebec Court of Appeal also illustrated this problem as follows:
[Translation]
The Appellant is appealing against a judgment from the Superior Court that . . . rejected its application for judicial review of a judgment of the Administrative and Appeal Division of the Court of Québec. That judgment allowed . . . an appeal filed by the Respondent against a decision of the Immovable Property Section of the Tribunal administratif du Québec (TAQ). . . . [T]hat decision allowed the application for review in which the Appellant had contested the exemption percentage to which it claimed to be entitled under the Act respecting municipal taxation. [My emphasis]3
The volume of administrative litigation remains considerable at all levels.
For example, according to the operational report of the Tribunal administratif du travail covering the period from January 1 to March 31, 2016, 7,461 cases were opened in the occupational health and safety division alone.4 The processing time for administrative cases at all levels is often very long.
It should be noted that the Supreme Court issued 89 judgments in matters of administrative law since Dunsmuir, which illustrates the significant volume of administrative cases across Canada.
The layering of administrative proceedings inevitably leads to delays and costs for citizens.
The people covered by benefit or compensation plans are often vulnerable and destitute; they can include crime victims or persons who suffered an impairment after a motor vehicle accident.
It should also be noted that people who file administrative proceedings are often self-represented. They are frequently in a situation of imbalance of power when they have to face the government during disputes.
From the perspective of access to administrative justice, citizens are entitled to expect that a final decision will be rendered efficiently and quickly on their case.
The growing number of matters that are liable to review on the basis of correctness could have impacts on access to administrative justice.
The Supreme Court collaterally addressed the access to justice considerations that apply to the assessment of certain administrative law matters.
For example, in Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles),5 the Supreme Court stated that the existence of conflicting decisions in administrative matters was not an independent basis for judicial review.
As such, the Court gave precedence to the principle of legislative supremacy, which provides that the legislator’s intent to give independent adjudicative powers to specialized administrative decision-makers must be respected. In this context, it expressed the following concerns about access to administrative justice:
The principle that decisions of administrative tribunals remain effective is accordingly decisive. While answers diametrically opposed according to the identity of the members of an administrative tribunal certainly would seem to be unacceptable, what is the position of the litigant in whose favour the same administrative tribunal has ruled but who sees this decision challenged (with all the costs, delays and so on involved), perhaps needlessly, on the ground of an alleged inconsistency? [My emphasis]6
In British Columbia (Workers’ Compensation Board) v. Figliola,7 the Supreme Court also expressed concerns about access to justice when it had to determine whether two complaints that dealt essentially with the same subject matter could be successively decided by two different administrative tribunals.
The Court wrote that “[j]ustice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved.”8
According to the Court, the ability of the parties to rely on the finality of an administrative decision reinforces the equity and integrity of administrative processes and therefore serves the public interest and the proper administration of justice.9
As a result, the Court rejected the arguments “that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice” [my emphasis].10
The principle of access to justice as a component of the rule of law or legislative supremacy should be included in the analysis conducted to determine judicial review standards for administrative proceedings.
As previously stated, from the perspective of access to justice, citizens are entitled to expect that a timely and final decision will be rendered on their case following a fair, transparent and clear process.
These objectives can generally be achieved by applying a deferential review standard. Deference means, however, that citizens are not necessarily entitled to the best possible decision, which they might attempt to obtain through multiple proceedings before successive jurisdictions.
Applying a deferential standard promotes the emergence of a body of case law that will eventually enable the superior courts to make clarifications. As indicated by Morissette J. from the Quebec Court of Appeal in an article entitled “What is a ‘reasonable decision’?”:
It is better to accept (with deference) that, while we might well have done things differently in the first decision-maker’s place, and even done them much better in our mind, we were not in that person’s shoes and it is best to leave it to the natural destiny of law, which builds itself one brick at a time.11
The price to pay for the recognition of the specialized adjudicative independence of administrative bodies is the requirement for review tribunals to tolerate error and some inconsistency among decisions regarding questions of law.
In summary, should we tolerate the “possibility that different decision-makers may each reach opposing interpretations of the same provision, thereby creating ‘needless uncertainty in the law [in the sense that] individuals’ rights [are] dependent on the identity of the decision-maker, not the law’”12?
This is one of the Gordian knots that the Supreme Court will need to undo very shortly.
Simon Ruel is a justice with the Quebec Court of Appeal. Justice Ruel thanks Mtre. Alyson Mace Reardon, researcher at the Quebec Court of Appeal, for her help in preparing this presentation.
End notes
1. Act respecting industrial accidents and occupational diseases, CQLR, c. A-3 001.
2. Act to establish the Administrative Labour Tribunal, CQLR, c. T-15.1, section 49.
3. Frères Maristes (Iberville) c. Laval (Ville de), 2014 QCCA 1176, para. 1.
4. Tribunal administratif du travail, Rapport d’activitĂ©, 1er janvier au 31 mars 2016, online: https://www.tat.gouv.qc.ca/fileadmin/tat/6Le_tribunal/Publications_et_documents/Rapports_annuels/Rapport_d_activite_TAT.pdf, p. 18.
5. Domtar Inc. v. Quebec (Commission d’appel en matière de lĂ©sions professionnelles), [1993] 2 S.C.R. 756.
6. Domtar Inc. v. Quebec (Commission d’appel en matière de lĂ©sions professionnelles), [1993] 2 S.C.R. 756, p. 798.
7. British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52.
8. British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, para. 36.
9. British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, para. 34.
10. British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, para. 35.
11. Yves-Marie Morissette, “What is a ‘reasonable decision’?” (2018) 31 R.C.D.A.P. 225, p. 248.
12. Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, para. 81.