Update on Reforms in Other Jurisdictions
(As of June, 2007)
Some of the more significant administrative justice reforms undertaken or initiated in other jurisdictions between January and June 2007 are summarized below, including:
- the interim report of the facilitator of the Ontario government’s Agency Cluster Pilot Project;
- the publication of a guide on automated assistance in administrative decision-making in Australia;
- an agreement on a delivery model for administrative support to the United Kingdom Tribunals Service;
- a review of the remuneration of the judiciary of tribunals within the United Kingdom Tribunals Service; and
- the hosting of a symposium on administrative justice in the European Union.
Within Canada
Council of Canadian Administrative Tribunals (CCAT)
The Council of Canadian Administrative Tribunals’ (CCAT) 4th International Conference was held in May, with presentations by experts from Canada, Australia, New Zealand, South Africa, the United Kingdom and the United States. The conference papers are expected to be posted on the CCAT website soon.
CCAT used the conference to launch its new guide for tribunal members and staff, Introduction to Administrative Justice and to Plain Language, to support plain language communications with tribunal users. CCAT plans to make the guide available on its website. This new guide continues the work begun with CCAT’s 2005 publication Literacy and Access to Administrative Justice in Canada: A Guide for the Promotion of Plain Language.
Alberta
The Appeal Procedures Statutes Amendment Act, introduced in March, came into force April 20, 2007. The act amends the timelines for obtaining leave from the Court of Appeal to appeal a decision made by certain Alberta tribunals (principally those that deal with energy and utilities matters). The amendments continue the requirement for leave applications to be made within 30 days of the tribunal’s decision, but provide for that time limit to be extended “where, in the opinion of the judge, circumstances warrant it.” The amendments also clarify that the court does not have to decide the application within the 30-day time frame. In addition, the amendments require tribunals to provide applicants with the materials they request to support the leave application (within 14 days of receiving a formal written request), but only require a transcript or record of the hearing to be provided if leave is granted or the court orders.
The Alberta Law Reform Institute is conducting a major review of the Alberta rules of court to produce recommendations for a new set of rules, including those relating to judicial review, and issued its latest draft of the new rules of court in February.
Ontario
The agency cluster facilitator released an interim report in January. (As discussed in the December 2006 reform update, the project is looking at five tribunals that work in related areas to make their services more simplified, accessible and consistent.) The facilitator’s interim report summarizes the information collected from stakeholders to improve services through coordination and cooperation and makes several recommendations, including the consideration of:
- co-location to provide one access portal for the public;
- a single web access portal for “virtual” co-location;
- sharing professional, administrative and support services; and
- moving to full-time instead of part-time adjudicators.
The facilitator is continuing to work with the tribunals and a final report is to be provided to the minister of government services later this summer.
The Ontario ombudsman issued a report, Adding Insult to Injury: Investigation into the treatment of victims by the Criminal Injuries Compensation Board, which is highly critical of what it concluded is a “gruelling bureaucratic maze” caused by chronic government underfunding of the board. A central theme of the report was the government’s failure to recognize and respect the independence of the board as a quasi-judicial body and the impact of lack of funding on its independence and the integrity of its decisions, as well as the board’s culture. (Unlike most administrative tribunals, the board not only orders compensation but is also responsible for paying for it out of its own budget so the responsible ministry, attorney general, influenced both the size and timing of awards by limiting the board’s budget.)
The Regulatory Modernization Act, which was given royal assent in May and will come into force January 2008, is intended to improve efficiency in the administration and enforcement of regulatory legislation by providing government ministries and their agencies with greater authority to collect, use and share information gathered from inspections and other compliance-related activities. Section 15 expressly allows a prosecutor to request the court treat a previous conviction as an aggravating factor when determining the appropriate penalty for a subsequent conviction.
Saskatchewan
Saskatchewan’s new Residential Tenancies Act 2006 came into effect in March, replacing the former concurrent jurisdiction of the provincial rentalsman and the Court of Queen’s Bench with exclusive jurisdiction for the director of residential tenancies over all disputes involving monetary claims of less than $10,000.
The Occupational Health and Safety (Harassment Prevention) Amendment Act, 2007 came into effect in May, creating a new appeal process and special adjudicator to hear appeals from initial decisions made by occupational health officers about workplace harassment complaints.
The Saskatchewan Law Reform Commission’s Handbook of Professional Disciplinary Procedure should be available very soon; in the meantime the earlier draft of the handbook is available online.
The Saskatchewan ombudsman’s investigation into the timeliness of decision-making by Saskatchewan’s administrative tribunals is underway, but no further details are available at this time.
Nova Scotia
The Nova Scotia Law Reform Commission is continuing to assist the province’s Supreme Court and Court of Appeal in the courts’ work to rewrite Nova Scotia’s civil procedure rules, including the rules for judicial review proceedings, with the new rules expected to be completed in 2008.
Northwest Territories
Bill 14, the Employment Standards Act, given second reading in the legislative assembly in May, is at the committee stage. The bill replaces three labour statutes with a single act and give employment standards officers primary responsibility to enforce employment standards and to hear complaints and make orders. The bill also provides for the appointment of adjudicators to hear appeals from the decisions and orders of employment standards officers.
Outside Canada
Australia
The Australian government published the Automated Assistance in Administrative Decision-Making Better Practice Guide, which “provides practical advice and checklists to ensure that [information technology] systems used to produce decisions affecting individuals are fair, accurate, and open to audit and review.” The guide is based on the Administrative Review Council’s 2004 report on automated decision-making, described in the 2004 reforms update.
The Administrative Review Council is working on three projects:
- submissions on the council’s draft report on Government Agency Coercive Information-gathering Powers (described in the December 2006 reform update) closed in February 2007;
- an initial report on Administrative Decisions in Areas of Complex and Specific Business Regulationis expected by Sept. 30; and
- production of a practical publication on procedural fairness for government decision-makers.
For more information on these projects, see the Administrative Review Council’s website.
The Australia Law Reform Commission released an issues paper entitled Client Legal Privilege and Federal Investigatory Bodiesas part of its ongoing review of client legal privilege (known in Canada as solicitor-client privilege) in investigations by bodies, such as the Australian Taxation Office and federal Royal Commissions of inquiry. Submissions on the paper were due by June 4, 2007. A discussion paper is expected to be released in late August and the commission’s final report is due to be delivered to the attorney general by Dec. 3, 2007.
The Australian Administrative Appeals Tribunal is conducting a review of practice and procedure in each of its major areas of jurisdictions (for example, worker’s compensation, social security) and will be publishing guides setting out general information about how the tribunal will manage cases in those particular areas. The Guide to the Workers' Compensation Jurisdiction is the first to be published.
New Zealand
The New Zealand Law Commission expects to release its report on government agency powers to enter private property, carry out searche and seize goods for use as evidence in the very near future. (The commission’s 2002 discussion paper on the topic is available on their website.)
The law commission also released an issue paper examining the purpose of public inquiries in January 2007. The paper focuses on commissions of inquiry, royal commissions and non-statutory ministerial inquiries.
United Kingdom
The Tribunals Service:
The Tribunals, Courts and Enforcement Bill, which will provide the new, simplified statutory framework for the Tribunals Service by formally bringing the existing tribunal jurisdictions together and providing a structure for new jurisdictions and new appeal rights, was given third reading in the House of Lords in February 2007. The bill is now at the committee stage in the House of Commons. More information on the bill and the legislative process is available on the United Kingdom government’s Department for Constitutional Affairs website and in the December 2006 reforms update.
In the meantime, two new tribunals were created and joined the Tribunals Service in early 2007: the Gambling Appeals Tribunal and the Claims Management Services Tribunal. In addition, two more tribunals, the Asylum Support Tribunal and the Care Standards Tribunal, joined the Tribunals Service in April.
The Tribunals Service Management Board, an executive agency of the Department for Constitutional Affairs that provides common administrative support to the Tribunals Service, adopted a future delivery model. The delivery model proposes core hearing centres to be located in the most densely populated areas, permanent hearing centres (locations still being determined), with casual hearing centres to supplement the core and permanent centres as necessary, and will “establish six multi-jurisdictional Administrative Support Centres (ASCs), each having full processing capability. ASCs will focus on the start-to-finish administration of a case to support the delivery of hearings in the complementary Tribunals Service hearing centre network.”
The Senior Salaries Review Body announced a review of the remuneration of the judiciary of tribunals within the Tribunals Service, to help those tribunals transition into the Tribunals Service. The review aims to propose a pay structure for the tribunals’ judiciary, including fee levels and a formula for determining future fee levels. More information on the review is available through the Office of Manpower Economics website.
Others’ initiatives:
The Council on Tribunals (which is to become the Administrative Justice and Tribunals Council and have its mandate broadened under the Tribunals, Courts and Enforcement Act, see notes above) initiated a survey to obtain a fuller picture of the type and adequacy of the arrangements tribunals use to consult with user groups and their representatives.
The Judicial Studies Board, which provides training to members of the judiciary and tribunals, updated its Equal Treatment Bench Book, designed to ensure all parties are treated fairly before courts and tribunals. The update includes guidance on the wearing of the full veil, or niqab, in court or before tribunals.
The United Kingdom Law Commission expects to publish a consultation paper on remedies against public bodies in public and tort law in the fall of 2007. The consultation paper follows a scoping report, finalized in October 2006, which sets out how the commission will proceed with a substantive project on the topic.
The Nuffield Foundation, a charitable trust that strives to “advance social well being” through research and experimentation, has launched a new initiative on administrative justice. As part of its initiative, the foundation is looking to fund work on four specific areas of administrative justice:
- the initial selection, filtering and handling of grievances, complaints, claims and appeals that take some step beyond the initial decision;
- feedback — the variety of methods used by adjudicators to inform and educate first tier decision-makers;
- the choice of redress mechanisms; and
- the value of individual procedures to the quality of administrative decision-making.
The foundation is currently soliciting proposals for research in these areas.
United States
The American Bar Association’s Administrative Law and Regulatory Practice Section is working on its European Union Administrative Law Project to educate lawyers, businesses and the broader public concerning current European Union (EU)administrative law and regulatory practice and foster discussions between American and EU lawyers and members of the public. A report is to be published in fall 2007; draft versions of papers that will be compiled to form the final report are available on the project’s website.
The Administrative Law and Regulatory Practice Section is also working on a long-term project on the federal Administrative Procedure Act and related statutes. The project will recommend ways to update and clarify the law in light of legislative, judicial, and administrative changes that have taken place since the act was enacted in 1946.
European Union
In March, the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union organized a symposium, Administrative justice in Europe. The symposium grew out of the first-ever comprehensive research study on administrative justice in the European Union Member States (launched in 2005 and noted in the July 2006 reforms update).
