Administrative Law - Admin Law PDF

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Scenario- Application The Ministry of Consumer Relations is responsible for regulating used car dealers. The registrar, an employee of the Ministry, has the right to recommend that a tribunal, the Licence Appeal Board, revoke the business licences of dishonest car dealers and salespersons. A customer of Active Auto Sales, managed by Mr. James, complained to the Ministry that the company had turned back the odometer on a vehicle that it had sold to him. After investigating this complaint, the Ministry determined that turning back odometers was standard practice for this dealership. The company was charged and convicted of fraud, but no charges were laid against Mr. James. Despite this, the registrar recommended to the Board that it revoke Mr. James's licence to sell cars, as well as the licence of his employer, on the grounds that Mr. James had to be involved in the fraudulent activity given his position in the company. The Board holds a hearing to decide whether to accept the registrar's recommendation to revoke the two licences. The Consumer Protection Act establishes the Board and defines its composition. It states that the premier of the province will appoint the chair and members of the Board, and that the premier will decide which members and how many members will be assigned to each hearing panel. The Ministry establishes the salary range for each Board member. The Ministry can change the salary range as long as the premier approves it. The Consumer Protection Act also states that the Board must follow any relevant ministry policies when making its decisions. The Consumer Protection Act provides that members of the Board hearing the case must consult with the legal branch of the Ministry, before making their final determination. The legal branch does not comment or weigh in on credibility of witnesses that testify throughout the proceeding. However, the legal branch frequently identifies new legal issues or rules that the Board hearing the case has inadvertently overlooked. When this happens, the Board's decision is based, at least in part, on the new policy or rule. The parties are not given an opportunity to make follow-up representations or submissions on it. After the hearing into whether Mr. Jones' and his employer's licences to sell vehicles must be revoked has commenced, one of the members of the hearing panel recognized Mr. Jones as someone they have worked with at the same car dealership 15 years ago. They were socializing on breaks and after work on occasion, including going on a day fishing trip once. However, they have lost touch and were not communicating for the past 15 years. The member of the panel also owns a car dealership in addition to his part-time work on the Board. He feels that generally the government and the board are too tough on car dealerships and salespeople, and this hurts their respective business and economic interests. 1. Is there an institutional bias that would prevent the board from hearing this case? Explain in detail with reference to the applicable legal principles (12.5 Marks) 2. Is there an individual bias that would prevent the panel from hearing the case? Explain in detail with reference to the applicable legal principles (12.5 Marks) 3. You are a paralegal acting for Mr. Jones. Assuming that there is individual and institutional bias, how and and what point in the proceedings would you raise the allegations of bias, and why? (5 Marks)

Yes, the board has no right to continue the hearing Conflict of interest is only one source of bias or perceived bias; other sources include friendship with a party, a dislike of one of the parties, or prior knowledge of facts that are prejudicial to one of the parties. Conflict of interest is a specific kind of bias—a financial interest in the outcome of a particular case, or,

more generally, any interest that is incompatible with an individual’s function as a member of a tribunal. The most important considerations in determining whether there is institutional bias are: the closeness of the relationship between an agency or tribunal and a government department that is affected by its decisions; and where an agency has multiple functions, the extent to which these functions overlap in a manner that suggests that some employees have inappropriate influence over others. there is a difference between institutional impartiality and institutional independence. The Supreme Court of Canada has stated that the impartiality of a decision-maker is determined by examining his or her state of mind, whereas the independence of a tribunal is a matter of its status: The status of a tribunal must guarantee not only its freedom from interference by the executive and legislative branches of government but also by any other external force, such as business or corporate interests or other pressure groups.(R v Généreux, [1992] 1 SCR 259, 88 DLR (4th) 110 at 128, 70 CCC (3d) 1. to determine whether there is a constitutional bias, the court may look at a number of factors, usually, no single factor is conclusive. the court may ask the following questions: 1.Are agency or tribunal members appointed for a fixed term or do they hold their offices at pleasure? 2. Our members’ salaries fixed, or can the government raise or lower them at will? 3. If the appointment is for a fixed term, how long is the term, The longer the term is, the greater will be the appearance of independence. 4.Are the appointments part-time or full-time? A part-time appointment raises a greater concern that an agency or tribunal member might be denied work if he or she makes a decision that is unsatisfactory in the eyes of the government or the chair of the agency.5.To what extent does an agency chair have discretion over which members to appoint to hearing panels. 6. Are the staff of an agency selected or employed by the agency, or by the government, Where the government is sometimes a party to proceedings, the fact that tribunal staff owes their livelihood to the government rather than the agency can create an appearance of bias. 7.To what extent is an agency required by government rules to follow government policy. 8.Does the minister to whom an agency chair reports conduct the performance evaluation of the chair, and what criteria are used in evaluating the chair’s performance. 9.Does the government department to which an agency reports determine the agency’s annual budget.

2. There is definitely an individual bias according to the indicator of the possible bias, an adjudicator must approach each case with an open mind, however, additional considerations—for example, particular activities, conduct, interests, relationships, and associations—may also cast doubt on an adjudicator’s impartiality and raise a reasonable concern about possible bias. in this case, factors we can look at 1. has a close friendship with a person whose interests may be affected by the outcome of the case. 2.express opinion about the issues in the case before all the evidence and arguments have been heard 3.has or has had in the recent past a significant business or professional relationship with a party or witness 4. expresses a strong like or dislike for a party or its witnesses. 5.has played a part in the case at any stage

For this situation, there is evidence institutional bias is evident. Yet additionally, there is an irreconcilable circumstance as the panel member claims a vehicle sales center as low maintenance work and the good choice to the board would be gainful later on to demonstrate that the government is pummeling them. 3. Where it is necessary to raise the question of whether there is an appearance of bias, it is important to do so as early as possible. The courts will consider a party that does not raise an allegation of bias during a hearing to have waived the right to argue it in court. In addition, if a party knows of facts that may give rise to an appearance of bias before a hearing begins, the party should seek to raise the matter discreetly with the tribunal chair or tribunal member and resolve it at that time; in this way, the party will avoid having to raise the matter during the hearing in a public forum, which could embarrass the tribunal and the member. Moreover, it is more convenient and less expensive for everyone if a tribunal assigns a different member before the hearing begins than if a member is forced to withdraw from the hearing partway through. (Recall the rule that the person who hears must decide and the discussion in Chapter 6 of the difficulties caused by an adjudicator leaving a hearing partway through.) If a party or advocate becomes aware of facts that may create an appearance of bias after a hearing has begun and believes it is necessary to raise the issue, how this is best done will depend on the circumstances of each case. In many cases, it will be appropriate to raise this issue with the tribunal member or the tribunal chair outside the hearing and give the member an opportunity to stand aside without a public spectacle. Any such discussion should take place in the presence of all the parties or their representatives. If the member does not agree that his or her participation will result in reasonable apprehension of bias, it is not necessary to immediately seek judicial review of the member’s decision to continue. A party’s continued participation in the hearing will not be considered a waiver of the right to raise the issue in later court proceedings since the issue was raised during the hearing

Comments Comment: great job "There may also exist a reasonable apprehension of bias on an institutional or structural level. … The constitutional guarantee of an independent and impartial tribunal has to be broad enough to encompass this." R v. Lippé (1991), 64 C.C.C. (3d) 513 (S.C.C.) at 531. • "The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically-and having thought the matter through-would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantee provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention." (Emphasis in original.) 2747-3174 Québec Inc. v. Quebec Régie des permis d'alcool, [1996] 3 S.C.R. 919 at 950. • "The three main components of judicial independence, namely security of tenure, financial security and institutional independence were identified in [R. v. Valente (No. 2), [1985] 2 S.C.R. 673]. The purpose of these objective elements is to ensure that the judge can reasonably be perceived as independent and the any apprehension of bias will be eliminated. Independence is in short a guarantee of impartiality." Quebec Régie, above, at

962-63. • "The principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body. … However, I realize that a strict application of these principles is not always warranted." Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. 2. • The registrar, who is an employee of the Ministry, is always a party to hearings before the Board. The Ministry and the minister, naturally, are likely to support this official wherever possible. Therefore, any institutional or structural arrangements that make the Board dependent on the minister or the Ministry would lead a reasonable observer to expect or fear that in a dispute between the registrar and another person the Board may be inclined to favour the department employee. • The following factors make the Board dependent upon the Ministry or the minister: - The statute provides that the Board reports to the minister. - The Board's rules of procedure must be approved by the Ministry. - The Board must have regard to department policies when making its decisions. - The minister approves the Board's annual budget. - An official of the Mnistry takes part in hiring board staff. - The chair cannot terminate the employment of board staff without approval from the Ministry. - Government policy requires the board chair and each minister sign an MOU governing the relationship between the Ministry and the Board. - The members of the Board are appointed on the recommendation of the minister. - The members are appointed "at pleasure"; the minister rather than the chair decides whether to recommend reappointment of members; the term is relatively short; and there is a limit on the number of reappointments for which members are eligible. Therefore, the members do not have "security of tenure." - The fact that the current minister has not signed an MOU with the new chair indicates a power imbalance in favour of the minister; underlines the limited usefulness of the MOU as an instrument for including provisions that enhance independence of the Board; and leaves the chair in a state of uncertainty as to his or her authority. - Although there is a statutory prohibition against appointing current civil servants to the Board, the government can appoint past staff of the Ministry to the Board (for example, the current chair and one of the part-time members). • There are also factors that make the well-being of the individual members of the Board dependent on the actions of the board chair, who in turn is not sufficiently independent of the Ministry. Because the chair can exert influence over these members, they are not sufficiently independent of the chair, who can exert pressure on them to decide cases one way or the other. In particular: - the chair will advise the minister whether to reappoint a member, and - the majority of the Board's members are part-time members. Part-time members are generally paid only when they work. They are more susceptible to pressure than full-time members because the chair may not assign them work if he or she is displeased with their decisions (lack of financial security). Because the chair is insufficiently independent of the government, there is an appearance that any pressure that the chair can exert on members is more likely to be exerted in the government's favour than in favour of other parties. • The salary levels of the chair and members are not fixed by statute. The government can

determine the salary of the chair. The Ministry establishes salary ranges for members. Within those ranges, the chair determines the actual salary on a case-by-case basis and controls raises. This situation represents a lack of financial security for the chair and members. 3. • Subject to any requirement of independence or impartiality in the Canadian Charter of Rights and Freedoms, the legislature can override any common-law fairness requirements. An institutional practice or structure that is explicitly authorized by statute does not give rise to an impermissible institutional bias. The fact that the Board reports to the minister; the chair's power to assign members to hearings; the right of the minister to approve the Board's procedures; and the requirement that the Board have regard to department policies, are all authorized by statute. • The Board's independence and impartiality are ensured by statutory provisions requiring it to follow certain rules of natural justice such as giving notice of hearings, hearing evidence, allowing parties to be represented, permitting cross-examination, and requiring written reasons for decisions. • Even though the members are appointed "at pleasure," the courts have ruled that the fact that they are appointed for a fixed term means they cannot be terminated before the end of that term without paying reasonable severance pay. • The strict application of the principles of judicial independence to tribunals is not warranted. Even when tribunals are exercising a quasi-judicial function, it is still necessary to keep in mind that they are part of the executive branch of government, not the judiciary, and are "created precisely for the purpose of implementing government policy." This applies to tribunals exercising a licensing function, even if that function consists of holding quasijudicial hearings (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781). • The fact that the Board must "have regard" to department policy does not fetter its discretion whether to apply that policy and therefore does not affect its impartiality. • Although the government makes the final decisions and the chair's role is not guaranteed by statute, in practice the chair has substantial input into the Board's budget, appointment and reappointment of members, and establishment of rules of practice. • The fact that the government has chosen to appoint former staff members as chair and part-time members does not make them "structural" or "institutional" considerations. They relate to the question of individual bias rather than institutional bias. Whether there is an institutional bias depends on what the roles of these individuals were in the Ministry and whether there has been a sufficient "cooling-off period" between employment with the Ministry and appointment to the Board. The fact that the former department investigator is a part-time member rather than a full-time member reduces the likelihood of bias. The fact that the chair has been out of the Ministry for three years is a factor weighing against the appearance of bias. Reply argument • James's lawyer may argue that the chair's de facto role in preparing the Board's budget and appointment and reappointment of members is inadequate protection against bias because the practice may be changed unilaterally by the minister at any time. Other considerations • The question does not state whether the statute specifies the length of the members' terms and that the members are to be appointed by pleasure or whether this is a question of government practice or policy. When the legislature expressly provides that board members

should serve at pleasure, this overrides any appearance of bias ( Ocean Port, above). • Whether government policy requires the chair and the minister to enter into an MOU clarifying their roles can provide an argument supporting institutional bias or an argument against institutional bias; whether the MOU suggests institutional bias or tribunal independence will depend largely on what the government expects in such a document and on what the MOU signed by the minister and the chair contains. A typical Ontario MOU provides for matters such as access of the Board to government lawyers; the Board's right to retain outside counsel where government lawyers are unavailable or have a conflict of interest; periodic meetings between the chair and the minister or deputy minister; the chair's obligation to keep the Ministry informed of significant developments; handling of complaints against the Board; and administrative matters such as staffing and budget. The MOU may state that the minister recognizes the decision-making independence of the Board....