“Administrative bodies” play a critical role in many areas of the law – from human rights to municipal planning to labour and employment. Maybe you have heard of the Human Rights Commission, the Subdivision and Development Appeal Board, the Labour Relations Board, the Immigration and Refugee Board or the Alberta Securities Commission? These are all administrative bodies.
Indeed, these bodies, not the courts, make most decisions that impact everyday Canadians. What’s more, these bodies have the power to significantly affect an individual’s legal rights. For example, the Human Rights Tribunal in Alberta recently awarded $18,000 each to two claimants (plus interest) for breaches of the Alberta Human Rights Act. Clearly, these bodies play an important role within Canada’s legal system. So, it’s valuable for everyone – not just lawyers – to know about them.
What is an administrative body?
Administrative bodies form part of the executive branch of government. This branch is led by the Prime Minister (Premier at the provincial level) and cabinet ministers who are each responsible for a government ministry – for example, the Ministry of Health, the Ministry of Transport, and so on. Each ministry oversees a specific area of public policy. Overall, the executive sets government policy and administers the laws passed by the legislative branch of government.
Administrative bodies are agencies, boards, tribunals and other government bodies created by statute. This allows for the informal expansion of government. Some administrative bodies adjudicate disputes – that is, decide conflicts between individuals or between individuals and the government. The decision-makers typically have specialized knowledge and experience relevant to the role. This is in contrast to judges who tend to be generalists by necessity.
Importantly, an adjudicative body’s authority to hear a particular case is dictated by the relevant governing legislation. For example, the Alberta Human Rights Tribunal can only address issues set out in the Alberta Human Rights Act – the statute under which the tribunal was established. This is different from superior courts, such as the Alberta Court of Queen’s Bench or Ontario Superior Court, which have “inherent jurisdiction” – the authority to decide any issues that come before them (with some exceptions).
A common feature of adjudicative bodies is that often the government will be a party to the proceeding. Typically, legal counsel or a government officer represents the government. Their role varies depending on the forum. In cases before the Alberta Human Rights Tribunal, for example, counsel advocates on behalf of the complainant. In other forums, the government limits its role to setting out the relevant legal test and summarizing the evidence.
“Administrative fairness” refers to a collection of principles that ensure a fair decision-making process.Adjudicative bodies tend to be more accessible and less formal than the courts. For example, they often do not have to follow the formal “rules of evidence” (laws and judge-made rules the courts follow to enhance the fact-finding process). Since these rules can be restrictive, adjudicative bodies typically have more flexibility in how they conduct a trial or hearing. But despite this greater flexibility, they must still ensure that participants are treated fairly.
“Administrative fairness” refers to a collection of principles that ensure a fair decision-making process. One of the most fundamental of these principles is that each party to a dispute must have a fair opportunity to present their case. Let us look at Borgel v Paintearth (Subdivision and Development Appeal Board), a recent Alberta Court of Appeal decision, as an example.
The issue in this case was a windfarm development in the County of Paintearth. In Alberta, windfarm developments require approval from both the Alberta Utilities Commission (AUC) and the relevant municipal authority. In this case, the county’s Municipal Planning Commission (MPC) approved 74 development permits for the windfarm. A group of landowners who opposed the project appealed some of these permits to the Subdivision Development Appeal Board (SDAB), a tribunal created by Alberta’s Municipal Government Act. Following the filing of the appeal, the AUC approved the project.
The parties attended a preliminary hearing before the SDAB to address how the AUC’s decision affected the issue before the board. By this time, the SDAB had already scheduled a hearing for the appeal for the following month.
Following the preliminary hearing, the SDAB determined that the Act required the AUC’s decision to take priority over the municipality’s planning decision. That is, the MPC – and by extension the SDAB – could not “veto” the permit applications. Since the AUC had already approved the project, the board granted the permits and cancelled the hearing for the appeal.
Adjudicative bodies tend to be more accessible and less formal than the courts.This turned out to be a breach of the landowners’ rights. The Court of Appeal agreed with the SDAB that they had to follow the AUC’s decision – but only insofar as the development applications were consistent with the AUC’s approval. Because the SDAB cancelled the second hearing, the landowners did not have a fair opportunity to make their case about the consistency of the development permits with the AUC decision, or about other issues not covered by the decision. Cancelling the appeal hearing deprived the landowners of their right to procedural fairness. So, the court sent the matter back to the SDAB to be reheard.
In addition to providing the parties with an opportunity to participate, an adjudicative body must also typically address the central issues or concerns of the parties. Failing to do so may result in an “unreasonable” decision – a decision which is not justified in light of the facts, and which may be overturned on appeal or review. The Owners, Strata Plan NW 2575 v. Booth shows how this can happen.
This case involved two condo owners and their condo corporation. The dispute was over who was responsible for maintaining and repairing a deck, which the owners had altered to include an enclosed sunroom. The owners launched their lawsuit through the Civil Resolution Tribunal (CRT), an online administrative tribunal in B.C. created by the Civil Resolution Tribunal Act. Among other things, they claimed about $25,000 for “loss of enjoyment of life, threats, abuse and stress.”
In proceedings before the CRT, a party cannot be represented by legal counsel unless the tribunal grants permission. In this case, the condo corporation asked for approval to have lawyers represent them. However, the tribunal denied the request, stating that the issue was a “common dispute type.”
… an adjudicative body must also typically address the central issues or concerns of the parties.The condo corporation disagreed with the CRT’s decision and filed an application for review, and later an appeal to the B.C. Court of Appeal. The appeal court found that the CRT had failed to consider a key submission by the condo corporation – namely, that the claim was complex. Indeed, the court noted that the claim raised complex legal issues, and questions of personal and corporate reputation. In the court’s view, the CRT’s failure to consider this point rendered the decision “unreasonable.” So, the court sent the request back to the tribunal for reconsideration.
Adjudicative bodies are created by statute and are a speedy, accessible and informal form of dispute resolution. Yet, like with the courts, these decision-makers must act fairly towards participants. This duty of fairness includes, first and foremost, providing participants with a meaningful opportunity to present their case. As well, adjudicative bodies usually must address the central issues or concerns of the parties. This principle is rooted in the duty of fairness, as this is how decision-makers demonstrate that they have actually listened to the parties.
Having an understanding of adjudicative bodies and the rights given to participants under the process can be helpful. Indeed, should you ever need to appear before such a body, you’ll be in a strong position to ensure that your rights are protected and that you get a fair chance to present your case.