Adjudicative independence

McKenzie v. British Columbia (Minister of Public Safety and Solicitor General), 2006 BCSC 1372

excerpted from “Judicial Independence: Beyond the Courts? An analysis of the requirements for independence of administrative tribunals in Canada” (Ryan Goldvine: unpublished)

Following an extensive review of administrative justice in British Columbia, the Government of British Columbia introduced the Administrative Tribunals Appointment and Administration Act (ATAAA) including a section allowing for administrative tribunal chairs, vice chairs, and members, to be terminated for cause; however, it also modified the Public Sector Employers Act (PSEA) with the seemingly contradictory provision in s. 14.9 that “The appointment of a person referred to in subsection (1) may be terminated without notice before the end of the term of their appointment on payment of the lesser of (a) 12 months' compensation, or (b) the compensation in an amount equal to the remuneration otherwise owing until the end of the term.”

On April 14, 2005, Mary McKenzie, a residential tenancy arbitrator in the Province of British Columbia, had her appointment as an arbitrator rescinded mid-term, without cause, pursuant to s. 14.9 of the PSEA. This gave the B.C. Supreme Court the opportunity to address practically the effect of this section on the adjudicative independence of administrative tribunals. In this case, the Court found that s. 14.9, in the context of the ATAAA and the PSEA does not allow for the mid-term termination of residential tenancy arbitrators; however, s. 14.9 was nonetheless struck down as “violating the constitutionally protected principle of independence required in the circumstances.”

While the earlier case of Ocean Port appeared to shut the door on the possibility that any administrative tribunal could inhere with it a requirement for independence that could not be undone by clear statutory language, McKenzie, in part, appears to have reopened the debate, though without strong enough facts to make the finding it did. The wording of s. 14.9 of the PSEA, as stated in both Farmer Construction and McKenzie is equivocal at best. The statute cannot be read to imply the words “without cause” to be included in the notion of “without notice,” especially in light of a requirement for cause in other statutes relating to the same tribunal members. As such, based on the facts of this case, the reasoning in Ocean Port and Farmer Construction should likely stand to dispose of McKenzie in the same way as it has been, but without the striking down of the relevant section. In fact, there has not been legislation that unequivocally derogates from the independence of an administrative tribunal that does have court-like functions as contemplated in both Farmer Construction and McKenzie and until a government feels so bold enough as to enact such legislation, or until the Supreme Court of Canada proclaims otherwise, Ocean Port will stand as good law.

Ryan.