I Can See Clearly Now: Videoconference Hearings and the Legal Limit on How Tribunals Allocate Resources
26 Pages Posted: 21 Apr 2011
Date Written: 2007
Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, especially for geographically remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the implications of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This analysis highlights concerns both with videoconferencing in principle and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunal’s allocation of resources and the sufficiency of its budget are also core concerns of administrative law. Administrative law reaches beyond conventional doctrines of procedural fairness on the one hand and substantive rationality on the other. How the legislature structures and funds decision-making bodies is not just a matter of political preference but also of legal sufficiency. The common law, the Charter of Rights, and unwritten constitutional principles such as the rule of law and access to justice all provide potential constraints both on governments and tribunals as to the organization and conduct of adjudicative hearings, especially in settings like the Landlord and Tenant Tribunal, where the rights of vulnerable people are at stake. While a challenge to the videoconferencing practices of the Landlord and Tenant Tribunal has yet to be brought, the authors conclude that eventually the intersection of tribunal resources with the fairness and reasonableness of that tribunal’s decision-making will reach the courts. How the courts resolve these challenges may represent the next frontier of administrative law.
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