- Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing 2009); Peter Cane, ‘Judicial Review in the Age of Tribunals' [2009] Public Law 479.
- Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) 2001 SCC 52 (Supreme Court of Canada (SCC)).
- Adjudicative Tribunals Accountability, Governance and Appointments Act, SO 2009, Ch 33, Sch 5 (Tribunals Act). For a discussion of other aspects of this new legislation related to the accountability of tribunals see Laverne Jacobs, ‘A Wavering Commitment? Administrative Independence and Collaborative Governance in Ontario's New Adjudicative Tribunals Accountability Legislation' (2010) 28 Windsor Yearbook of Access to Justice 285.
- Andrew Gamble and Robert Thomasd, ‘The Changing Context of Governance’ in Michael Adler (ed), Administrative Justice in Context (Hart Publishing 2010) 6.
- Kevin Whitaker, Final Report of the Agency Cluster Facilitator for the Municipal, Environment and Land Planning Tribunals (Minister of Government Services 2007) 5.
- Whitaker (n 5) 6.
- Whitaker (n 5) 6.
- Tribunals Act (n 3) s 15. For a list of the thirty-seven adjudicative tribunals in Ontario eligible to become part of a cluster see O Reg 126/10, sch 1.
- Tribunals Act (n 3) ss 16–17.
- O Reg 126/10, s 2.
- We note that Peter Cane's recent work includes a comprehensive treatment of tribunal systems and structural reforms in Australia, the UK and the United States, but omits a discussion of the experience in Ontario or elsewhere in Canada. Our study contributes to filling that gap. See Cane, Administrative Tribunals and Adjudication (n 1).
- While we take access to justice as our normative starting point to discuss the modernization of administrative justice systems, we acknowledge that this claim is not without controversy. Others may view the aims of modernizing administrative justice in a different light. For example, following the most recent economic recession in the UK, political discourse surrounding the ‘modernization’ of employment tribunals in that country appears to focus primarily on streamlining and incentivizing tribunal processes by imposing user fees and deposit orders, and by granting new powers to strike out claims: see Department for Business Innovation & Skills, Resolving Workplace Disputes: A Consultation (January 2011) <http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/11–511-resolving-workplace-disputes-consultation.pdf> accessed 18 January 18 2011, 27. Such reforms would appear, on their face, to embody an approach to modernisation motivated by normative concerns quite different from the ones we seek to emphasise in this paper.
- Michael Trebilcock, Tony Dugan and Lorne Sossin (eds), Middle Income Access to Justice (University of Toronto Press 2012).
- For a preliminary discussion of these dimensions of accessibility, see Lorne Sossin, ‘Access to Administrative Justice and Other Worries' in Colleen Flood and Lorne Sossin (eds), Administrative Law in Context (Edmond Montgomery 2008).
- Many of these challenges are summarised by the New Zealand Law Commission in its report on tribunal reform. See New Zealand Law Commission, Tribunal Reform (New Zealand Law Commission SP 20, 2008) 5–6, 33–36. See also Law Commission of New Zealand, Tribunals in New Zealand (New Zealand Law Commission IP 6, 2008).
- Michael Adler has described this approach to reform as being derived from ‘the perspective of the normative expectations held by members of the public’. See Michael Adler, ‘From Tribunal Reform to the Reform of Administrative Justice' in Robin Creyke (ed), Tribunals in the Common Law World (Federation Press 2008) 155.
- New Zealand Law Commission, Tribunal Reform (n 15) 6.
- Andrew Leggatt, Tribunals for Users: One System, One Service (Stationary Office 2001), para [3.2]. We also note Lord Irvine's comments in launching the Leggatt review that ‘[the] haphazard growth of tribunals, complex routes of appeal, and the need for mechanisms to ensure coherent development of the law' were primary motivators for a widespread review of the country's tribunal system. See Gary Slapper and David Kelly, Sourcebook on the English Legal System (2nd edn, Routledge 2001) 283.
- Leggatt (n 18), para [1]. See also Justice J Bruce Robertson, ‘Administering of Justice Without Borders' (Council of Canadian Administrative Tribunals conference, May 2007) 2 <http://www.ccat-ctac.org/downloads/C-16aRobertson.pdf> accessed 20 November 2011.
- New Zealand Law Commission, Striking the Balance (NZLC Preliminary Paper 51, 2002) 51.
- Leggatt (n 18), para [2].
- One response to this challenge in the land and environment context has been to create specialised land and environment courts and tribunals. For a good overview of developments in this area see George Pring and Catherine Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals (World Resources Institute 2009) <http://www.accessinitiative.org/sites/default/files/Greening%20Justice%20FInal_31399_WRI.pdf> accessed 20 November 2011. See also Bret Birdsong, ‘Adjudicating Sustainability: New Zealand's Environment Court' (2002) 29 Ecology Law Quarterly 1; Justice Paul Stein, ‘Specialist Environmental Courts: The Land and Environmental Court of New South Wales, Australia' (2002) 4 Environmental Law Review, 5; Kenneth Palmer, ‘Refections on the History and Role of the Environment Court in New Zealand” (2010) 27 Environment and Planning Law Journal 69.
- Hazel Genn, Ben Lever, Lauren Gray, Nigel Balmer and the National Centre for Social Research, Tribunals for Diverse Users (Department for Constitutional Affairs Research Series January 2006) 98.
- Department for Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals (White Paper, Cm 6243, 2004), para [3.3].
- For a discussion of possible factors underlying barriers to knowledge about tribunals such as minority status, language, age and gender see Genn et al, Tribunals for Diverse Users (n 23) 71–74. In general, Genn notes that ‘Black and Minority Ethnic’ groups were less likely to take action to resolve their disputes compared to ‘White’ respondents. See also Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Hart Publishing 1999); Hazel Genn and Alan Paterson, Paths to Justice Scotland: What Scottish People Do and Think About Going to Law (Hart Publishing 2001).
- Robin Creyke, ‘Tribunals: Divergence and Loss’ (2001) 29 Federal Law Review 403, 409 (quoting the Minister introducing the Bill for the ADT).
- Michael Adler, ‘Understanding and Analyzing Administrative Justice’ in Michael Adler (ed), Administrative Justice in Context (Hart Publishing 2010) 145 (citing as support an empirical study of social security tribunals in the UK, John Baldwin, Nicholas Wikeley and Richard Young, Judging Social Security: The Adjudication of Claims for Beneft in Britain (Clarendon Press 1992)).
- Commonwealth Administrative Review Committee, Report (CARC PP No 144, 1971).
- Administrative Review Council, Overview of the Commonwealth System of Administrative Review (Department of the Attorney General 2011) <http://www.ema.gov.au/agd/WWW/archome.nsf/Page/Overview_Overview_of_the_Commonwealth_System_of_Admin_Review> accessed 21 November 2011 [26].
- Lord Carnwath et al, ‘An Overview of the Tribunal Scenes in Australia, Canada, New Zealand and the UK' in Creyke, Tribunals (n 16) 3.
- Cane, Administrative Tribunals and Adjudication (n 1) 117–18.
- Administrative Research Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (ARC Report No 39, 1995). See also Cane, Administrative Tribunals and Adjudication (n 1) 64–67.
- Carnwath et al (n 30) 5.
- Leggatt (n 18). See also Sir Robert Carnwath, ‘Administrative Justice—A Quiet Revolution’ (2008) 30 Journal of Social Welfare and Family Law 283; Edwards Jacobs, ‘Something Old, Something New: The New Tribunal System’ (2009) 38 Industrial Law Journal 417; Sir Robert Carnwath, ‘Tribunal Justice—A New Start’ [2009] Public Law 48.
- Carnwath et al (n 30) 21.
- Department for Constitutional Affairs (n 24).
- Department for Constitutional Affairs (n 24) 25.
- Tribunals, Courts and Enforcement Act 2007 (UK); Lord Justice Carnwath, ‘Tribunals and the Courts—the UK Model’ (2011) 24 Canadian Journal of Administrative Law and Practice 6.
- Tribunals Act (n 3) s 2. Lord Justice Carnwath was appointed as the agency's first Senior President in November 2007.
- Lord Chancellor and Secretary of State for Justice, Her Majesty's Courts and Tribunals Service Framework Document (Cm 8043, April 2011).
- Peter Cane, Administrative Law (5th ed, OUP 2011) 317.
- Carnwath et al (n 30) 25.
- Carnwath, ‘Tribunals and the Courts’ (n 38) 7.
- Cane, Administrative Tribunals and Adjudication (n 1) 122.
- Cane, Administrative Tribunals and Adjudication (n 1) 85.
- Heather MacNaughton, ‘Future Directions for Administrative Tribunals: Canadian Administrative Justice—Where do we go from Here?’ in Creyke, Tribunals (n 16) 205.
- Lorne Sossin, ‘The Ambivalence of Administrative Justice in Canada: Does Canada Need a Fourth Branch?’ in Adam Dodek and Daniel Jutras (eds), Lamer: The Sacred Fire (LexisNexis 2009) 51. Clustering may advance this project in one respect (as it refects and reinforces systemic approaches to justice) while complicating it in others (the Social Justice cluster, for example, includes some tribunals that have jurisdiction to hear and adjudicate the Charter of Rights and some that do not, suggesting a lack of coherence).
- Adler, ‘Understanding and Analyzing Administrative Justice’ (n 27) 154.
- Department for Constitutional Affairs (n 24) para [1.6].
- Carnwath, ‘Administrative Justice’ (n 34) 284–85.
- MacNaughton (n 46). See also Patricia McConnell, ‘The Future of Tribunals in New Zealand’ in Creyke, Tribunals (n 16) 198.
- Judith McCormack, ‘Nimble Justice: Revitalizing Administrative Tribunals in a Climate of Rapid Change’ (1995) 59 Saskatchewan Law Review 385.
- New Zealand Law Commission, Tribunal Reform (n 15) 54–55. The New Zealand Law Commission and the Ministry of Justice commenced their project to advance a program for tribunal reform in November 2006. The purpose of this project was to survey the landscape of New Zealand's existing tribunals and to make recommendations on structural reform for existing tribunals and for establishing new tribunals in the future. In its latest report of December 2008, the Law Commission explores several models for reform and makes some initial recommendations as to its preferred option of a unified tribunal service.
- Although it considered the clustering model, the New Zealand Law Commission ultimately recommended a ‘unified tribunal structure’ that includes specialised divisions and further sub-groupings to retain some fexibility within the amalgamated structure.
- Under Ontario's Tribunals Act, tribunals within a cluster must also jointly develop governance and accountability documents, reinforcing that each tribunal has its own ‘identity and purpose’. See Michael Gottheil and Doug Ewart, ‘Lessons from ELTO: The Potential of Ontario's Clustering Model to Advance Administrative Justice' (2011) 24 Canadian Journal of Administrative Law and Practice 161, 166.
- For a comparative overview of these surveys see Jamie Baxter, Michael Trebilcock and Albert Yoon, ‘The Ontario Civil Legal Needs Project: A Comparative Analysis of the 2009 Survey Data' in Trebilcock, Duggan and Sossin (n 13).
- See eg Pascoe Pleasence et al, Causes of Action: Civil Law and Social Justice (Legal Services Commission 2004) 39–40 <http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/Causes%20of%20Action.pdf> accessed 21 November 2011; Christine Coumarelos, Zhigang Wei, and Albert Zhou, Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas (Law and Justice Foundation of New South Wales 2006) 75 <http://www.lawfoundation.net.au/ljf/site/articleIDs/B9662F72F04ECB17CA25713E001D6BBA/$file/Justice_Made_to_Measure.pdf> accessed 21 November 2011; Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Department of Justice Canada 2007) 42 <http://justice-canada.net/eng/pi/rs/rep-rap/2007/rr07_la1-rr07_aj1/rr07_la1.pdf> accessed 21 November 2011.
- Tribunals Act (n 3) s 15.
- Whitaker (n 5).
- Gottheil and Ewart (n 55) 165.
- See Gottheil and Ewart (n 55) for a discussion of ELTO's early experiences with the clustering model. We rely on a number of insights from Gottheil and Ewart's paper in this section.
- See eg Edward Canuel, ‘Supporting Smart Growth Legislation and Audits: An Analysis of US and Canadian Land Planning Theories and Tools’ (2005) 13 Michigan State Journal of International Law 309. For experiences in Australia see John Horwich, ‘Environmental Planning: Lessons from New South Wales, Australia in the Integration of Land-Use Planning and Environmental Protection' (1997) 17 Virginia Environmental Law Journal 267.
- Gottheil and Ewart (n 55) 170.
- In 1999, a part-time Chair was appointed to lead the two Boards and part-time members were cross-appointed to both Boards. In 2006, prior to the formation of SJTO, a full-time Chair and two Vice Chairs were appointed to both boards.
- New Zealand Law Commission, Tribunal Reform (n 15) 55–56.
- Robin Creyke, ‘Tribunals and Access to Justice’ (2002) 2 Queensland University of Technology Law and Justice Journal 64, 72.
- Rachel Bacon, Amalgamating Tribunals: A Recipe for Optimal Reform (PhD thesis, University of Sydney 2004) 289–90.
- Gottheil and Ewart (n 55) 9.
- Environmental and Land Use Hearings Boards—Consolidation, Substitute House Bill 2935, Ch 210, 61st Leg (2010). For a summary of this legislation, see Final Bill Report SHB 2135 (State of Washington 2010) <http://apps.leg.wa.gov/documents/billdocs/2009–10/Pdf/Bill%20Reports/House%20Final/2935-S%20HBR%20FBR%2010.pdf> accessed 22 November 2011.
- Before the July 1 reforms, a separate body composed of three regional Growth Management Boards dealt exclusively with land use and planning appeals in Washington under the State's Growth Management Act. The Land Use section of the ELUHO is composed solely of a re-designed Growth Management Hearings Board, which combines the three regional boards into a single seven-member body. The Environmental section includes two separate boards: a Pollution Control Hearings Board (which carries the workload of the previous Forest Practices and Hydraulics Boards) and a Shorelines Hearings Board. A first stage of reforms amalgamating the environmental boards took place In 2010, followed by the formal creation of the ELUHO In 2011.
- Michael Gottheil, the first Executive Chair (2009–2011) was Chair of the Ontario Human Rights Tribunal at the time he was appointed. Subsequently, In 2011, he was appointed to be the Executive Chair of Social Justice Tribunals Ontario, which includes the Human Rights Tribunal.
- John Hopkins, ‘Order From Chaos? Tribunal Reform in New Zealand’ (2009) 2 Journal of the Australasian Law Teachers Association 47, 52 (criticising this aspect of proposed reforms in New Zealand as ‘a convoluted structure in the name of un-achievable unity’). These ‘super tribunals’ have also been labeled ‘judicially-led amalgams’ because they are commonly headed by a presiding judge, see Gabriel Fileming, ‘Tribunals in Australia: How to Achieve Independence' in Creyke, Tribunals (n 16) 91.
- Justice Stuart Morris, ‘The Emergence of Administrative Tribunals in Victoria’ (Annual General Meeting of the Victorian Chapter of the Australian Institute of Administrative Law, Melbourne 2003) <http://www.austlii.org/au/journals/VicJSchol/2003/4.pdf> accessed 22 November 2011.
- Bacon (n 67) 106.
- Bacon (n 67) 98.
- New Zealand Law Commission, Tribunal Reform (n 15) 54.
- Jacobs (n 3).
- Bacon (n 67) 296.
- Bacon (n 67) 308.
- Bacon (n 67) 291.
- See our discussion of physical co-location and Office geography in section B.
- Bacon (n 67) 287.
- Bacon (n 67) 287.
- Bacon (n 67) 286.
- Bacon (n 67) 276–77.
- Bacon (n 67) 316–18.
- Justice Murray Kellam, ‘Developments in Administrative Tribunals in the Last Two Years’ (2001) 29 Federal Law Review 427.
Oxford University Commonwealth Law Journal
Volume 12, 2012 - Issue 1