by Ron Ellis. Vancouver: UBC Press, 2013. 388pp. Cloth US$99.00: Cdn$95.00. ISBN 9780774824774. Paper US$37.95: Cdn$34.95. ISBN 9780774824781.
Reviewed by Roger A. Shiner, Department of Philosophy, University of British Columbia Okanagan and Okanagan College. E-mail: roger.shiner [at] ubc.ca or rshiner [at] okanagan.bc.ca.
If you all, dear readers, were polled on how many of you or a member of your family had rights-determining interactions with the criminal justice system, I suspect the answer would be very few, if any. On the other hand, if the same question were asked of a possible interaction over child and family services, mental capacity and competence, labour relations, landlord and tenant relations, workplace health and safety, and generally speaking grievances against the behaviour of public officials, I suspect the answer would be most of you, if not all. We are accustomed as academics and as citizens to agonize and theorize about the shortcomings of the criminal justice system on the basis that we have fundamental rights that it behooves the criminal justice system to respect and it regularly seems not to do so. Yet the daily life of the average citizens is likely to be far more influenced by the exercising, well or badly, of the “rights-determining function” (a phrase that frequently occurs in UNJUST BY DESIGN) of administrative judicial tribunals. This function on is subject to scarcely any normative analysis by the academy, whether empirical or philosophical. Ron Ellis regards this neglect as dereliction of academic duty, especially in Canada, where the administrative justice system in his view is (in another recurrent phrase) a “train-wreck” of a justice system.
Ellis aims in Unjust by Design both to remedy the academic neglect and to make substantial proposals for reform. Ellis is well placed to succeed in both these tasks. He has variously been a practising counsel in Canada’s administrative justice system, a legal academic (the book is based on his doctoral dissertation), and was for twelve years the Chair of the Workers’ Compensation Appeals Tribunal of the province of Ontario. In this role he achieved the remarkable feat of being appointed and re-appointed by successive governments of the right, the centre and the left political parties in Ontario. As such, he embodies the normative goal of his campaign to take politics out of administrative justice.
As the subtitle implies, the book focuses on Canada, and on Canadian struggles with administrative justice. There are occasional references to other jurisdictions, including the U.S., a matter to which I shall return below. In part (I suspect) because of the book’s origin in a doctoral dissertation there is a level of detail to the discussion of Canada that only a wonk could love. However, the general normative position that Ellis defends about administrative justice has [*226] force anywhere that citizens lives are materially affected by administrative tribunals that are not courts even if they perform rights-determining functions — that is to say, pretty well anywhere in the world where social complexity has led to the development of law and legal system. The content of the book is somewhat lopsided, as such books often are, with diagnosis and criticism occupying half the book, while conceptual analysis, constitutional analysis and proposals for reform take up the remaining half. However, there really are proposals for reform, something critiques of legal regimes often lack, and there is serious conceptual clarification, also often lacking in critical works.
The book unfolds thus. The introductory chapter and the long first chapter describe the current functioning of Canada’s administrative justice system, highlighting the injustices that Ellis sees throughout the system. The injustices are threefold, relating to conditions of tenure of office and qualifications for office – the triad of independence, competence and impartiality. Members of administrative judicial tribunals are appointed only for short terms, thus allowing for their easy replacement if the government of the day dislikes their decisions. In the worst cases, members can be fired at will, without any due process protections. Moreover, the dominant approach to qualifications for tribunal members is populist – the issues are thought to be not technical and legal, but commonsense issues on which any citizen is competent to decide. This approach also leaves the tribunals wide open to political manipulation. There is thus a pleasing double entendre in the book’s title — the structural design of administrative judicial tribunals is unjust, and they are deliberately designed by governments so that the end result of their operations is unjust. The two chapters compile horror story after horror story of ordinary citizens and tribunal members who suffer outrageously at the hands of politically biased and even corrupt tribunals.
The positive argument Ellis presents has several steps to it. First, Chapter 2 focuses on getting the concepts straight. Ellis introduces here the key concept of a “statutory rights enterprise”. A “statutory rights enterprise” is an institution or structure that administers and delivers a government policy enshrined in a statute that creates the rights, privileges and obligations needed to effectuate the policy. The adjudicative tribunals so created are therefore fundamentally different from pure regulatory agencies. Ellis distinguishes between a tribunal exercising a purely administrative or regulatory function such as granting a license to market gas, say, and a tribunal exercising a judicial rights-determining function such as deciding that a worker is entitled to workers’ compensation benefits (p.152). The board granting the license to market gas is the manager of its own interests and is concerned with issues that are “polycentric” (pp.161-162), as opposed to the workers’ compensation tribunal, which is an adjudicator of the interests of others on an adversarial basis. Even though both boards may grant a hearing to interested parties, their function is different. The administrative judicial tribunal is not a court: its members function as a corporate body, not as independent decision-makers. It shares with a court, though, the condition that its operation is subject to the rule of law, [*227] and specifically to the three conditions of judicial independence: security of tenure, financial security and administrative control (“institutional independence with respect to matters of administration bearing directly on the exercise of its judicial function”; see VALENTE (1985) para.47). The administrative judicial tribunal is exactly like a court in being a rights-determining enterprise, in having a rights-determining function.
Chapter 3 then briefly gives a factual description (the “inside story”, Ellis calls it) of the actual activities of administrative judicial tribunals in Canada to illustrate that they really do what the conceptual analysis of Chapter 2 says that they do. Chapter 4, again briefly, rehearses the aspects of Canadian law that in Ellis’s view provide an existing institutional basis for the reforms he will propose. He repeats his view that regulatory agencies are permitted “ideological” decision-making, but administrative judicial tribunals are not. The basis for judicial independence lies in the common law duty of procedural fairness, which has been given some institutional recognition in Canada as an unwritten constitutional principle. As such Canadian courts have extended the principle of judicial independence already to some adjudicatory bodies other than courts narrowly conceived, and Ellis argues that it should be acknowledged to apply to all administrative judicial tribunals as well.
Chapter 5 presents Ellis’s detailed proposals for reform, and they are commendably detailed. They involve an Administrative Bill of Rights; a Governing Council for the whole administrative justice system; a specialized Ministry of Administrative Justice; an Omnibus Judicial Tribunal into which would be folded all the different existing administrative judicial tribunals, the “patchwork quilt” effect of the current multiplicity of tribunals being one conflict with the rule of law that needs addressing; a Tribunal Audit Board to monitor the financial independence of the administrative judiciary; a source of proper academic and practical training for the administrative judiciary; Community Advisory Panels to maintain connections with the citizenry; a number of specific rules concerning such issues as terms of appointment, qualifications and security of tenure; and finally a process for making the influence of government on administrative judicial tribunals overt and legitimate instead of covert and illegitimate. Ellis is under no illusions about the magnitude of what he is proposing, but he makes a case for the seeds already existing in Canadian law and culture.
As briefly noted, along the way Ellis does make some references to the state of play in other jurisdictions. In the U.K., Australia and New Zealand, reforms have taken place in the last few years that bring the administrative law systems largely in line with Ellis’s preferred principles of administrative justice, that “justiciz[ed]” the systems (in Ellis’s unattractive terminology). Ellis’s comments on the U.S. are more complex. As he notes more than once, we do have in Canada a tendency to a certain smugness when the U.S. Supreme Court appointments reality show hits the news media: “we don’t appoint judges like that: we don’t reduce judicial appointments to party politics”. Nor do we in Canada have anything [*228] comparable to the automatic replacement of higher levels of administrative bureaucrats when a new President is appointed. Ellis aims to jolt us out of such smugness. First, he points to the system of federal Administrative Law Judges in the U.S., who enjoy exactly the kind of independence and security of tenure, and are appointed only after competitively proving their credentials for appointment, that Ellis urges (p.35). Then he praises the U.S. system of electing judges on the grounds that, if really and truly administrative justice requires democratic accountability, then having judges elected is a vast improvement over having them appointed by behind-the-scenes political patronage (pp.88-89). One can concede both of these points in theory, but they seem to me more questionable in fact. Citizens’ day-to-day life in the U.S. is going to be more affected by matters within the jurisdiction of states, and even of cities, than of the federal government. State-level elections are hardly paradigms of democratic procedural purity. States vary widely in the degree to which they have an administrative judicial system that reflects the principles of the federal system, although some certainly do. Moreover, federal law will be paramount over state law in cases of conflict. Ellis would be closer to the truth in saying that the best of the U.S. approach to administrative justice provides a model for Canada, rather than the more blanket generalizations he in fact offers.
UNJUST BY DESIGN is a long book, and there is an enormous amount of detail that is omitted here. The analyses of Canadian law on which Ellis’s argument depends I leave to the lawyers. His social-scientific analysis of the past and present and the practical plausibility of his reform proposal will be, and should be, much debated by empirical political science and policy studies. I leave that to those professionals. As a political and legal philosopher, the conceptual structure and general normative argument of the book interest me, and I will make some remarks about them.
On the face of it, it is in the nature of democracy that a democratically elected government has as such a mandate to govern according to its own beliefs, principles and policies. Why should not such a mandate go all the way down? Why should not such a government implement its beliefs and policies concerning occupational safety and health, for example, or concerning immigration through political control of a workers’ compensation board or an immigration review board? Ellis answers such a challenge by asserting a fundamental difference between the social role and accompanying role-related responsibilities of a regulatory agency such as an environmental protection agency or a Department of Agriculture and the role and responsibilities of an administrative judicial tribunal such as a labour relations board, an immigration review board or a workers’ compensation board. The regulatory agency operates in the area of policy, of social and economic goals: the administrative judicial tribunal operates in the area of principle and of the determination of rights. Legal philosophers will hear the echo of Ronald Dworkin’s well known distinction between principle and policy, and between the court as the forum of principle and the legislature as the forum of policy, and indeed Ellis acknowledges Dworkin’s background influence in this [*229] respect (albeit by quoting approvingly an opinion of the late Chief Justice Brian Dickson himself quoting Dworkin: see pp. 153, 229 and Dworkin (1978) and elsewhere in his work). The dimension of this distinction crucial for Ellis is the following. Where regulation and policy are concerned, it is entirely proper for political ideologies and allegiances to control both appointments and responsibilities. The President can appoint as Secretary of the Environmental Protrection Agency, or the Prime Minister appoint as Minister for the Environment, a person who shares his or her political views and appoint for just that reason. The norms by which the agency operates and responsibilities it carries can legitimately be oriented towards fulfilling the political goals and choices of the government. All this is, however, totally unacceptable in the case of administrative judicial tribunals. These tribunals should be staffed by persons who are a-political and impartial: their operation should be governed by norms of due process or natural justice: they should operate not as a branch of government but at arms’ length from government. The key factor that underlies this difference of approach is that the task of administrative judicial tribunals is to adjudicate rights: in that fundamental way, administrative judicial tribunals are like courts and not like regulatory agencies.
In Dworkin’s case, the distinction between principle and policy, and the association of the former with rights and of the latter with utilities, is primitive and intuitive. Even so, it is a distinction that resonates with both students and scholars, and (it seems) with judges. It is perfectly possible for the distinction to remain primitive and also to play the foundational role that it plays in Ellis’s argument. But that weakens his argument to the extent that it is then not based on anything more solid than intuition. His argument becomes “if you look at things this way, then ...”, not “this is what I have shown”. That may or may not be crucial. However, I think there is a further concern about Ellis’s reliance on the axiomatic assumption that administrative judicial tribunals are rights-determining enterprises, the assumption from which (it seems to me) everything else in his argument follows. In what sense are these tribunals “rights-determining”? What kind of rights?
In Dworkin’s thought, the argument is clear: his famous Rights Thesis is that “judicial decisions enforce existing political rights” (1978, p.87). He has in mind clearly the traditional civil and political rights of documents like the U.S. Bill of Rights, the Canadian Charter of Rights and Freedoms or the International Convention on Civil and Political Rights. These rights are “political” in the sense of belonging to every human citizen as such. Arguably, they do exist prior to their instantiation in the positive law of some municipal jurisdiction. When a court makes a legal decision awarding or denying a legal right on the basis of a constitutional bill or charter or rights, the technically legal decision is easily seen as an application of a “background political right”. But the “rights” that administrative judicial tribunals are called upon to adjudicate are different. They are certainly technically legal rights – rights enshrined in the legislation that sets up the delegated power of the administrative judicial tribunal. They have the formal properties of claim-[*230] rights, liberty rights, powers and immunities of an analytic scheme such as Hohfeld’s (Hohfeld 1923). That an administrative judicial tribunal enforces rights in this technical sense is not enough to ground Ellis’s arguments, however. It would need to be shown that such legal rights are normatively derivable from background civil and political rights, or be so-called “third generation” civil and political rights. This creates a problem. Ellis admits that the distinction between an administrative judicial tribunal as a rights-determining enterprise and a regulatory agency pursuing policy goals is not a bright-line distinction. That need not matter unless the argument being offered presupposes that it is bright-line: however, I think that is the case here. If the rights being determined by an administrative judicial tribunal are positive legal rights that have in the background, not the major civil and political rights, but much more local values that a democratic people have chosen to prioritize as part of their conception of how their society should be designed, then the distinction between administrative judicial tribunal and regulatory agency becomes much more blurred. The rights and entitlements determination of which concerns Ellis need to be fundamental civil and political rights for the distinction between rights-determining and goal-promoting to have the weight his argument presupposes it to have. But the rights he is actually talking about are not such rights. The above is not a refutation of Ellis’s argument, but a challenge to it — to say more about the foundational distinction between administrative judicial tribunal and regulatory agency without appealing to intuitions about the difference between principle and policy, rights and goals: or else to argue that the demand to say more is unreasonable.
Ellis has written a fine book, one that raises profound questions about the very idea of the separation of powers in a democratic state and about the meaning and role of the rule of law in governance. Discussions of these topics typically focus on the clear cases — the role of paradigm instances of courts and the role of pure policy-related regulatory agencies. However, as Ellis argues, those are the easy cases. Given the significant role administrative judicial tribunals play in our lives, the degree to which such tribunals may legitimately be subject to political control and influence is a matter of vital importance. Ellis presents a persuasive case for such tribunals to be thought of and treated as if they were courts, not as if they were arms of a regulatory agency. The issue has the potential to affect us all, not just Canadians, even if, as Ellis argues (again persuasively) the need for reform in Canada is especially acute.
Dworkin, Ronald M. 1978. TAKING RIGHTS SERIOUSLY. 2nd edn. Cambridge, MA: Harvard University Press.
Hohfeld, Wesley. 1923. FUNDAMENTAL LEGAL CONCEPTIONS. New Haven, CT: Yale University Press.
R v VALENTE  2 SCR 673 [SCC]
Copyright 2014 by the Author, Roger A. Shiner.