Social Rights and Administrative Justice

• Author: Lorne Sossin and Andrea Hill
• Profession: Dean, Osgoode Hall Law School, York University/Lawyer at Wildeboer Dellelce LLP, Toronto
• Pages: 343-364

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chapter 11

SOCIAL RIGHTS AND

ADMINISTRATIVE JUSTICE

lorne sossin* and andrea hill†

A. INTRODUCTION

When the topic of social rights arises, people rarely think of administra-

tive tribunals. Yet more people have their rights relating to housing, social

benef‌its, employment, and other human rights determined in tribunals

than in court s. While administrative decisions a re subject to the oversight

of judicial review, the barriers of cost and complexity mean that for the

overwhelming majority of people, an administrative tribunal will be their

f‌irst and f‌ina l recourse to protect their social rights.

Administrative justice is def‌ined by its diversity. While courts in every

part of the country look rema rkably similar, few people can close their eyes

and picture what a landlord tenant board, immigration and refugee board,

or social benef‌its tribunal looks like. Yet that is where a vulnerable ten-

ant goes to stave of‌f eviction, where a refugee claimant goes to avoid de-

portation, and where a person whose benef‌its have been cur tailed goes for

recourse. There are hundreds of tribunals, at the federal, provincial, and

municipal levels, involving thousands of full- and part-time adjudicators

applying a myriad of stat utory schemes and regulatory regimes.

The diversity of administrative justice extends beyond the appearance

and jurisdiction of tribunals. Tribunals also vary with respect to proced-

ure — some are as adversaria l as courts while others adopt a more activist

approach to adjudication, and some involve inquisitorial processes which

* Lorne Sossi n, Dean, Osgoode Hal l Law School, York University.

† Andrea Hill , Lawyer at Wildeboer Dellelce L LP, Toronto.

344► lorne sossin and andrea hill

place the decision maker in the pos ition of eliciting the necessar y informa-

tion from the parties. Hea rings may occur electronically, over the phone, in

person, or in writing. Appea rances before the Human Rights Tribunal may

stretch into weeks of complex evidentiary testimony while some hearings

before the Landlord and Tenant Board take less than thirty minutes. Fun-

damental huma n rights may be at stake in both.

Thus, any discussion of social rights in administrative justice must

confront the realities and implicat ions of this diversity. For example, to say

that the Health Professions Appea l and Review Board has jurisdict ion over

the Canadian Charter of Right s and Freedoms1 does not address the question

of how a self-represented patient might identify or develop submissions on

a Charter issue. To say that international human rights norms should con-

strain the decis ions of the Social Benef‌its Tribunal raises obvious problems

of how those norms are communicated to decision makers, who may or

may not be legally trained, or to parties coming before those decision mak-

ers. Complicating a rights-based approach to administrative justice is the

fact that those decision ma kers are not protected by judicial independence,2

and there is a long history of partisan and patronage appointments to tri-

bunals expected to act in an impartial fashion. The assumption in cases

such as Nova Scotia v Martin (2003),3Tranchemontagne v Ontario (200 6),4 and

R v Conway (2010)5 — which arm the jurisdiction of administrative tribu-

nals over human rights legislation and the Charte r — is that it is up to the

legislature to determine the mandate of these adjudicative bodies, up to

government to decide their budget and appointments, and up to the courts

to correct serious errors when and if a pa rty seeks judicial review.

It is striking how out of touch with rea lity the Court’s analyses in those

cases appear to be — the m ajority judgment in each case simply f‌inds “prac-

tical considerations” such as a tr ibunal’s capacity to undertake the hea ring

and adjudication of rights, to be irreleva nt. While it may be irrelevant to the

question of jurisdiction, practical capacity is the def‌ining set of considera-

tions as to whether the rights i n question will be meaningf ul and accessible.

1 Pa rt I of the Constitution Act , 1982, being Schedule B to the Canada Act 1982 (U K), 1982,

c 11 [Charter].

2 See Ocean Port Hotel Ltd v Br itish Columbia (General Manager, Liquor Control and

Licensing Branch), 2001 SCC 52, for discu ssion of the doctrina l distinction.

3 Nova Scotia ( Workers’ Compensation Board)vMartin; Nova Sc otia (Workers’ Compensa-

tion Board)vLaseur,2003 SCC 54 [Martin].

4 Tranchemontagne v Ontario (Dire ctor, Disability Support Program), 2006 S CC 14

[Tranchemontagne].

5 2010 SCC 22 [Conway].