Tribunal Independence and Impartiality: Rethinking the Theory after Bell and Ocean Port Hotel — A Call for Empirical Analysis

Abstract

Is the approach currently taken by Canadian courts to determine the amount of independence that administrative tribunals require appropriate to fulfil the goals of providing administrative justice and encouraging public confidence? The author argues that it is essential to appreciate the modes of internal functioning and the normative understandings within administrative bodies in order to make a valid determination of the degree and nature of independence that they should have. For this, more qualitative empirical analysis is needed in our administrative law literature. This article begins with an overview of the rationale behind tribunal independence, outlining the current approach used by the courts in evaluating independence and impartiality on judicial review applications. It then moves to discuss some of the shortcomings of the judicial model and the utility of empirical data in evaluating questions of tribunal independence. It concludes by considering the Supreme Court’s decisions on tribunal independence and impartiality, Bell Canada v. Canadian Telephone Employees Association and its predecessor, Ocean Port Hotel Ltd. v. British Columbia (Gen. Manager Liquor Control), and evaluating whether these cases have affected the jurisprudential notion that there is significant value in “seeing the tribunal in operation.”

Keywords: administrative law, independence, empirical research, public law

JEL Classification: K