Questions? Comments? E-mail Robert T. Chisholm, Associate Member OSPE, at attention_to_the_facts@hotmail.com
The points made here reflect Mr. Chisholm’s personal experience and priorities. He in no way claims to represent “the last word” or the opinions of a representative and randomly-selected sample of people. He recommends that people read the book themselves and come to their own conclusions - especially people with different priorities from his own.
First
chapter (after the “Introduction”) is titled: “Defeating the Rule of Law in
the Administrative Justice System: Executive Branch Strategies and Tactics”.
-----------------
(Bottom
of p. 104)
Employment
Insurance Appeals Regime
As
an example of tribunal integration with their government handlers,
however, nothing beats the integration of the appeals system in the federal
Employment Insurance (EI) adjudicative regime circa 2002 as described by
Professor Gaile McGregor in her thoroughly researched, closely reasoned,
and very detailed study of that system. It is a study that provides information
and insights that are rarely available for particular tribunals, and it identi-
fies issues concerning the independence and impartiality of judicial rights-
determining tribunals that resonate broadly with administrative justice
issues generally. Here is another poster child for the damage the executive
branch is capable of when it turns its hand to designing and running a jus-
tice system. The discussion in the following paragraphs references Professor
McGregor's article. (ref. 197)
Defeating
the Rule of Law in the Administrative Justice System
105
Canada's EI system is administered by the Canada Employment Insur-
ance Commission. In this system, the Commission is effectively the port-
folio ministry. At the time of Professor McGregor's study, EI claims were
decided in the first instance by Commission staff, whose decisions were
appealable to Boards of Referees. The Boards of Referees were said to be
"independent" tribunals and were composed of chairs selected by the
Com-
mission from a roster of chairs appointed by the Governor-in-Council, plus
two members selected by the Commissioner for Employers and the Com-
missioner for Workers from rosters established in consultation with appro-
priate employers' associations and central labour bodies, respectively. This
adjudicative regime was abolished by the Conservative Government in 2012
and replaced by appeals to the new federal Social Security Tribunal.
The Boards of Referees had no legislative or regulatory power; their
duty
was to apply the provisions of the Employment Insurance Act "as
they
stand. (ref. 198) Here, then, were true
judicial tribunals.
The Boards were required to provide written decisions, and these deci-
sions were appealable to the Office of the Umpire. Umpires were generally
judges of the Federal Court of Canada but could also be judges or former
judges of a provincial court. Umpires' decisions were appealable to the
Federal Court of Appeal.
McGregor found a remarkable degree of administrative influence by the
Commission over the Boards of Referees and their decision making in 2002.
This influence was derived from three factors: Commission control over the
process; Commission influence over the Board chair and members; and
Commission influence over the adjudication.
McGregor reports that the Commission - the respondent in every ap-
peal - had the marked advantage of effectively picking the judge who would
hear any particular appeal, selecting from the roster of chairs the individ-
ual to be appointed as chair in any particular case. The Commission also
made the regulations that governed the conduct of hearings. As well, since
the Boards were allowed to consider only the issue defined by the record, the
Commission was able to limit the issues by the way it framed its decision.(ref.
199)
As to how the Commission influenced the adjudicators, McGregor re-
ported that the Commission relied on its control of the Boards' training and
reference materials. The training program for newly appointed chairs and
panelists (few of whom were lawyers) was designed and administered by the
Commission, as were the permanent reference materials on which, as a prac-
tical matter, the Board members had to rely principally in the development
106
Unjust
by Design
of
their decisions. In the
training and reference materials prepared by the
Commission, McGregor found "limited coverage" of the issues;
deficiencies
in the "quality of judgments" selected for inclusion in the reference
material;
"bias" in the selection of the past decisions to be included; and
finally the
arbitrary exclusion from the reference materials of most decisions at the
Umpire level.(ref. 200) McGregor
comments:
The last set of features bridges the line between
appropriate and the im-
proper. Given the foregoing, this is perhaps predictable. The fact is, thanks
to its situational and propaganda advantages the Commission is in a pos-
ition to exercise a problematic and unhealthy degree of influence, not just
over general attitudes, but over the process of adjudication. Even after the
orientation period is over, because of the breadth of its administrative
mandate, it continues to function for the Referees as everything from
facilitator to intellectual resource. What is easy to lose sight of - and what
the evidence suggests many Referees do lose sight of - is that the role of
the Commission in actual appeals is that of an interested party, not a
"dis-
interested advisor.'' (ref. 201)
McGregor
notes that the inappropriateness of the Commission's efforts to
influence the Boards of Referees was often commented upon by the judges
appointed as Umpires. In a
representative sample of Umpire decisions on
the availability-for-work issue, for instance, totalling around eighty cases,
McGregor found more than a dozen clear-cut examples. (ref. 202)
McGregor
concludes that the Board members and their adjudication are
administratively controlled by the Commission to the point of obvious
breach of the principles of natural justice. (ref. 203) To the Supreme Court's
"insti-
tutional bias" question in Lippe. (ref. 204) - "will there be a reasonable apprehen-
sion of bias in the mind of a fully informed person in a substantial number
of cases?" - the answer with respect to the Boards of Referees in 2002
was,
in McGregor's opinion, a resounding "yes!” (ref. 205)
McGregor
also studied the impact of this integrated adjudicative en-
vironment on the quality of the Boards of Referees' decisions, reviewing
and evaluating over 1,200 of them. The decisions were characterized, she
says, by "conspicuous formalism" and "perfunctory reasons,"
and were
"short, superficial ... light on analysis" and "mechanistic to
the point of bi-
zarreness." (ref. 206) The overwhelming sense she got from her review of
these
cases was, she reports, of "an unremitting series of small injustices
resulting
from a mechanical application of blanket rules." (ref. 207)
-----------------
References 197 to 207 cited above all point to the
same item, namely:-
2002.
Gail McGregor, “Anti-Claimant Bias in the Employment Insurance Appeals System:
Causes, Consequences, and Public Law Remedies”, Canadian Journal of
Administrative Law and Practice 15, 3: 229-91.
It is
easy to dismiss things like this as "irrelevant" - "...because it is old and out of
date...", or some such argument. It is NOT out of date until such time as
it is proven that the lessons have been learned and improved mental attitudes
and methods incorporating those lessons have superseded previous (deficient)
mental attitudes and methods.
In this instance and others that could be cited,
the required improvements have not happened and therefore any arguments about
them being "old" and/or "out of date" etc. are both false
and irrelevant.
But such arguments - being entirely emotional
and political, devoid of fact, and which sound “convincing”- are also
popular with people in positions of power and influence who wish to maintain
the status quo - so as to appear to "justify" old attitudes, and
prevent solutions to the problems in question.
There is another reference that should be
considered relevant at this point, located at:-
http://www.mattoid.ca/data/EconomicStraits/workers_and_the_employment_insurance_regime.htm
-
"Workers and the Employment Insurance (EI) Regime Summary
(September 2002)":
"One
of these projects involved an investigation of potentially ageist elements in
the federal employment insurance system carried out by Gaile McGregor, Director
of Social Research for Terraconnaissance Inc., under the title “Unemployment
Protection for Older Workers: A Case Study of Systemic Bias in a Statutory
Regime (2002, unpublished)."”
Questions? Comments? E-mail Robert T. Chisholm, Associate Member OSPE,
at attention_to_the_facts@hotmail.com
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PAGE