TRIBUNAL INDEPENDENCE AND IMPARTIALITY

An Invitation to Revisit John East

Laverne A. Jacobs* Thomas S. Kuttner**

INTRODUCTION           Tribunal independence and impartiality have long occupied both jurists and commentators as they undertake to map out the topography of public law, its enactment, implementation and interpretation. The sea of caselaw is vast, the channels of commentary many, and if mastery of a topic is ever possible - or for that matter even desirable - one cannot possibly do such a project justice in the space of only a few pages. Our objective, then, is necessarily more modest, and what we aim to do is to lay out an approach for exploration of that topography, so as to better understand its shape and contours.           We propose first to explore the sources of tribunal independence and impartiality. Initially we survey the law as it has developed from the cusp of the Charter era through to the decision of the Supreme Court of Canada in Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 177 NR 325. Then we review the recent decision of the Supreme Court of Canada in Ocean Port Hotel Ltd. v. Liquor Control & Licensing Branch (BC) (2001), 274 NR 116 which we consider to be a critically important addition to our understanding of the theory underlying tribunal independence. It suggests that common law principles may, in certain circumstances, offer a surer footing than the Charter to address tribunal independence issues. Next, we assess the analytical framework for determining tribunal independence and impartiality in the recent jurisprudence. We use as our point of departure the decision of the Supreme Court of Canada in Matsqui in which those factors going to determine the independence and impartiality of administrative tribunals are explored. Drawing on our approach to the sources of tribunal independence, we suggest that preferable to the Charter-based judicial independence paradigm which drives the analysis in Matsqui, would be a model rooted in the older s. 96 jurisprudence that emphasizes the distinctive character of administrative tribunals in comparison to the Courts. We then look to some of the modalities of tribunal independence in the modern jurisprudence in light of this analytical framework. We examine a set of structural elements rooted in the particular legislative framework in which a tribunal functions including the appointment process, the relationship to the Executive and to the Legislature, as well as internal relationships between tribunal Chair and members. We conclude by reflecting on the ways in which an integrated approach to addressing questions of the independence and impartiality of administrative tribunals can be developed. I. TRIBUNAL INDEPENDENCE AND IMPARTIALITY: SOURCES           Although the rubric nemo judex in sua causa is deeply rooted in our common law tradition, comprising as it does one of the two pillars of natural justice, its authoritative articulation in the jurisprudence is of recent vintage. All the modern cases refer to two principal decisions of the Supreme Court of Canada: Committee for Justice and Liberty v. National Energy Board (1976), 9 NR 147, and R. v. Valente (1985), 64 NR 1. The former addresses the traditional concern of the nemo judex rule - impartiality of the decision-maker, whereas the latter addresses a more contemporary one - the independence of the decision-maker. Linking the two in the jurisprudence is the standard against which to measure challenges to a decision-maker whether on the basis of lack of impartiality or lack of independence: reasonable apprehension on the part of right- minded persons. In National Energy Board, Justice de Grandpré, writing in dissent, gave the test for reasonable apprehension of bias its classic formulation in Canadian jurisprudence: …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude’. [at 9 N.R. 138].           For the majority in National Energy Board, Chief Justice Laskin found this test to be grounded in a firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies [at 9 N.R. 136]. Noting that the National Energy Board was quasi-judicial in nature, he found that its functions had to be discharged “ in accordance with the principles of natural justice, not necessarily the full range of such rules that would apply to a Court… but certainly to a degree that would reflect integrity of its proceedings and impartiality in the conduct of those proceedings” [at 9N.R. 130]. Justice De Grandpré, in reviewing the traditional common law jurisprudence on bias, noted that “[t]he question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisors” [at 9 N.R. 139].           Almost a decade later in Valente, Justice Le Dain, speaking for the full Court, adapted the reasonable apprehension test to the principle of independence in the Charter jurisprudence. “[I]t is sound, I think,” he wrote, that the test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality whether the tribunal may be reasonable perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. [at 64 NR 15].           In adopting the reasonable apprehension test for purposes of the Charter concept of independence, Justice LeDain drew upon the common law bias doctrine laid down in the National Energy Board case, with its emphasis on the concept of impartiality. However, in a lengthy analysis, he went on to ground Charter independence in the constitutional principle of judicial independence, rooted in the Act of Settlement, whereby Judges became fully recognized as original officers of the state as an incident of separation of powers doctrine. Although recognizing that the Charter concepts of impartiality and independence would extend to a wide range of tribunals in a manner responsive to their variety, Justice Le Dain did not address directly the roots of the two concepts within the administrative tribunal setting. We trace the tension between the common law bias jurisprudence, and that developed with respect to the Charter concepts of independence and impartiality to this missed opportunity to distinguish between the roots of each. i. Independence and Impartiality: The Charter Jurisprudence           In Valente, Justice Le Dain had asserted that “there is obviously a close relationship between independence and impartiality”, yet that “they are nevertheless separate and distinct values and requirements”at 64 NR 11], for while independence connotes a status which rests on objective conditions and guarantees [at 64 NR 11-15], impartiality is traditionally seen to refer “to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.” [at 64 NR 11]. Justice Gonthier was of like mind in 2747 – 3174 Québec v. Régie des permis d’alcool du Québec et autres (1996) 205 NR 1, where he noted that “These concepts of impartiality and independence, although very similar, can nevertheless be distinguished”. [at 205 NR 32]. Others have not been so certain. As Chief Justice Lamer noted in Lippé et autres v. Québec (Procureur général) et autres (1991), 128 NR 1, “[t]here has been much debate concerning the precise relationship” between the two concepts among the commentators. He considered Lippé to “[highlight]…the difficulties of distinguishing between impartiality and independence” [at 128 NR 24-25].           Indeed, Lippé unfortunately compounded the problem of distinguishing the two. This is because in contrast to the concept of impartiality which focuses on the individual, judicial independence had, from the outset, been seen to involve both individual and institutional relationships. Following the approach of most jurists, Justice Le Dain had developed this dual approach to judicial independence in Valente. He noted that, on the one hand, as impartiality touches on the individual judge, it is reflected in issues such as security of tenure and financial security. On the other hand, as it affects the Court over which the Judge presides, independence is reflected in institutional or administrative relationships between the Court and Government – principally the Executive branch but through it also the Legislature. This duality was first introduced to the concept of impartiality in Lippé. Here, Chief Justice Lamer boldly asserted that although never before recognized, the requirement of judicial impartiality also has both an individual and an institutional aspect. [at 128 NR xx]           Perhaps underlying this insistence on structural symmetry between the constitutionally entrenched values of impartiality and independence is the paradox that although distinct, they are closely related concepts. Independence is said by Chief Justice Lamer in Lippé to be ‘the cornerstone’ for judicial impartiality, and by Justice Gonthier in the same case to be its ‘safeguard’. [at 128 NR 30; 53], the one subordinate to the other. This structural symmetry between the two concepts has now become the received wisdom, firmly entrenched in the Charter jurisprudence. And, as we see from an overview of that jurisprudence, three elements have emerged to play a central role in establishing the degree of independence and/or impartiality a tribunal should have. These elements are the Charter, the common law and the statutory and practical indicators of a tribunal’s independence and impartiality. ii. Independence and Impartiality: The Common Law Jurisprudence How does this Charter jurisprudence affect the nemo judex principle at common law? At the time Valente came down it was arguable that its impact on administrative law doctrine should have been minimal. Such an argument might have been buttressed by the decision of the Supreme Court in R. v. Wigglesworth (1987), 81 NR 161 where the Court, speaking through Justice Wilson, drew a tight circle around the Charter s. 11(d) guarantee, limiting its reach to the criminal and quasi-criminal spheres, the great bulk of regulatory and adjudicative tribunals falling outside of its ambit. But, even in Wigglesworth, Justice Wilson adumbrated the possibility that constitutionally entrenched procedural guarantees might be available in the regulatory realm through the avenue of the Charter s. 7 guarantee that one not be deprived of the right to life liberty and security of the person “except in accordance with the principles of fundamental justice” [at 81 N.R. 185–6]. One wonders whether or not this, coupled with the Court’s contemporaneously expressed view in RWDSU Local 580 v. Dolphin Delivery Ltd. (1986), 71 NR 83 that Courts “ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the constitution” [at 71 N.R. 119] made almost inevitable the re-crafting of the common law jurisprudence on bias affecting administrative tribunals, so that it mirrored the jurisprudence dealing with courts and tribunals developed under the Charter.           This Charter jurisprudence became fully engrafted onto the common law nemo judex shoot in Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 177 NR 325. There, in a non-Charter case, both Chief Justice Lamer (who together with Justice Cory would have found reasonable apprehension of lack of independence in the appeal tribunal there challenged) and Justice Sopinka (who together with Justices L’Heureux-Dubé, Gonthier and Iacobucci would have found to the contrary) used the Charter jurisprudence on independence as the framework against which to measure the independence of the appeal tribunal and its members at common law [at 177 NR paras 62; 79-80; 142; 145]. Again in Régie, Justice Gonthier for the majority applied the Charter jurisprudence on independence and impartiality in a challenge to the integrity of that tribunal measured against the guarantee of a fair hearing “by an independent and impartial tribunal” entrenched by s. 23 of the Quebec Charter of Human Rights and Freedoms, RSQ 1977 c. - 12. For her part, Justice L’Heureux-Dubé applied the same Charter jurisprudence to support a finding of partiality in the case of the Régie, and hence violation of the nemo judex rule at common law.           The perhaps unintended, yet inevitable, outcome of this process has been the casting of an essentially judicial template against which to measure the independence and impartiality of administrative tribunals - for it is judicial independence and impartiality which drives the Court’s Charter jurisprudence. That such independence and impartiality is reserved primarily for judges is clearly set forth in the Reference Re Remuneration of Judges of the Provincial Court (PEI) (1997), 217 NR 1 where its deeper roots in English constitutionalism as articulated in the Preamble to the Constitution Act 1867 - that ours is a Constitution ‘similar in Principle to that of the United Kingdom’ - is fully developed by Chief Justice Lamer. Drawing on his earlier dissent in Cooper v. Canadian Human Rights Commission (1996), 204 NR 1, he identifies courts as “definitional to the Canadian understanding of constitutionalism” grounded as they are in the basic structure of our constitution [217 NR par. 108], and equally so “definitional” is their institutional independence, grounded as it is in a matrix of constitutional norms including the Preamble and judicature provisions of the Constitution Act 1867, separation of powers doctrine, the logic of federalism, and Charter adjudication [217 NR paras. 124-5]. iii. Ocean Port: The Constitutional Basis of Common Law Bias Doctrine In Cooper, Chief Justice Lamer had urged his colleagues to revisit the Court’s Constitution Act, 1982 section 52 jurisprudence authorizing tribunals to declare provisions of their enabling legislation inoperative for the purposes of the proceedings before them. He did so “in order to ensure that the Charter does not distort the deep structure of the Canadian Constitution” [at 204 NR 44]. For Chief Justice Lamer feared that that jurisprudence “distorted the web of institutional relationships between the Legislature, the Executive and the Judiciary which continue to form the backbone of our constitutional system” [at 204 NR 28]. Although the Court has not heeded that call as directed specifically to its section 52 jurisprudence, we suggest that in Ocean Port it has done so in a broader sense. The Court now recognizes that it must be cautious not to allow its Charter jurisprudence on judicial independence and impartiality to ‘distort the deep structure of the Canadian Constitution’ in which the nemo judex principle has firmly been rooted since long before the Charter era. There, Chief Justice McLachlin, speaking for the full bench, firmly rejects Ocean Port’s argument, that as is the case with provincial courts so with administrative tribunals empowered to impose penalties, their independence and impartiality finds constitutional protection in the Preamble to the Constitution Act, 1867. Rather, the Court holds that the teaching of the PEI Provincial Court Judges case attaches only to courts of law; as a matter of principle it does not extend to administrative tribunals [at 274 NR 135].           It is important to recognize the Court’s reason for rejecting any argument that the independence of administrative tribunals should emanate from the Preamble as a constitutional imperative. Chief Justice McLachlin writes: Lamer, C.J. [in the PEI Provincial Court Judges Reference] also supported his conclusion with reference to the traditional division between the executive, the legislature and the judiciary. The preservation of this tripartite constitutional structure, he argued, requires a constitutional guarantee of an independent judiciary. The classical division between court and state does not, however, compel the same conclusion in relation to the independence of administrative tribunals. As discussed, such tribunals span the constitutional divide between the judiciary and the executive. While they may possess adjudicative functions, they ultimately operate as part of the executive branch of government, under the mandate of the legislature. They are not courts, and do not occupy the same constitutional role as courts [at 274 NR para. 32]. Earlier, having identified judicial independence as a constitutional imperative, the Chief Justice had written: Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. [274 NR para. 24].           Now, it would be a mistake to read this important judgement as a complete disavowal of the constitutional roots of the nemo judex principle as it touches administrative tribunals. To the contrary, it resonates with the same constitutional imperative that drives Chief Justice Lamer’s analysis in the PEI Provincial Court Judges case namely, the preservation of the basic structure of our constitution. The ‘primary policy-making function’ of administrative tribunals is rooted as well in separation of powers doctrine which, as then Chief Justice Dickson noted in Fraser v. Public Service Staff Relations Board (1985), 63 NR 161, posits the role of the Executive to be the administration and implementation of that policy which the Legislature in fulfilment of its role has decided upon and enunciated; the role of the Judiciary being to interpret and apply the law [at 63 NR 177]. But the fact that separation of powers doctrine coupled with the independence of the judiciary does not ground the nemo judex rule and thereby the principle of tribunal independence [and this is the thrust of Chief Justice McLachlin’s insistence that such is not implied in the Preamble] need not lead one to conclude that these have no share in our constitutionalism. To the contrary they very much do so, but not where so often but wrongly sought - that matrix of constitutional norms in which judicial independence is grounded.           Rather, we suggest one should look even deeper into our constitutional order to what Dicey long ago identified as the ‘two guiding principles’ which have shaped the law of the constitution, namely the Sovereignty of Parliament “which means in effect the gradual transfer of power from the Crown to a body which has come more and more to represent the nation”; and the Rule of Law, namely “the supremacy throughout all our institutions of the ordinary law of the land.” [A.V. Dicey The Law of the Constitution [10th ed, Wade] (1959, reprint 1968) at 470-471]. Professor Wade has spoken of the “hydra-headed presumptions of the Courts in favour of the common law” which itself accords to the words of Parliament “none of that aura of respect and generosity of interpretation with which it surrounds its own doctrines”. [Introduction to the Law of the Constitution at c - ci, fn 1]. And Lord Reid too in Ridge v. Baldwin [1964] AC 40 (HL) spoke of the ‘inveterate habit’ of the Courts to restrain Parliament by “engraft[ing] the principles of natural justice onto a host of provisions authorizing administrative interference with private rights … unless a particular Act showed a contrary intention.” [at 73].           The insistence by Chief Justice McLachlin in Ocean Port that, where the integrity of an administrative tribunal is challenged for lack of independence, legislative intent is critical to any judicial determination, is nothing other than the articulation of the correct relationship between these two guiding principles. Rule of Law doctrine teaches that the common law must given way to the Sovereignty of Parliament where, in the eyes of the Court, it has manifested its intention to that effect. Or, as Dicey put it, “If the sovereignty of Parliament gives the form, the supremacy of the law of the land determines the substance of our constitution”. [The Law of the Constitution, at 471]. And so too the Canadian Constitution insofar as it is one ‘similar in Principle to that of the United Kingdom’.           To be sure, the Chief Justice does not foreclose the possibility of a Charter - grounded right to tribunal independence in the proper case – one arising out of the right to an independent and impartial tribunal under Charter ss. 7 or 11(d) [at 274 NR 135]; and three times she cautions that her articulation of the guiding principles at common law governing tribunal independence is made ‘absent constitutional constraints’ [at 274 NR paras. 20, 24 & 42]. This is of a piece with Justice Iacobucci’s view while still sitting as Chief Justice of the Federal Court of Appeal in Southam Inc. and Rusnell v. Canada (Attorney General) et al (1990), 114 NR 255, one expressly adopted by Chief Justice Lamer in the PEI Provincial Court Judges Reference [at 217 NR 71], that our original Constitution, ‘similar in Principle to that of the United Kingdom’, must coexist alongside the Charter ‘in many important respects’, although the nature and scope of that coexistence must still be worked out in the jurisprudence.           In our view, particularly significant in Ocean Port is its implicit freeing up of the traditional nemo judex jurisprudence, as it touches quasi-judicial administrative tribunals, from the strictures of that Charter jurisprudence which touches judicial independence and impartiality. This calls for a more conscious recognition of the distinction between Courts and administrative tribunals than that developed in the jurisprudence drawn from the Charter. There is a much earlier developed jurisprudence in our constitutional order which could assist here. We suggest that Ocean Port invites a reassessment of the earlier section 96 jurisprudence, which allowed for the birth of the administrative state, in the development of a nuanced approach to ensuring the independence and impartiality of administrative tribunals.           Principal here is the decision of the Judicial Committee of the Privy Council in Labour Relations Board of Saskatchewan v. John East Ironworks Ltd. [1948] 4 DLR 673 in which Lord Simonds, in a marvelously crafted Speech, declines to answer the question whether the Board there was exercising a judicial power, in favour of several other inquiries. Did the subject matter addressed by the tribunal find an analogy in those matters familiar to the Courts at the time of Confederation? Did the subject matter make it desirable that the decision-maker should have the same qualifications as those of a section 96 Court judge or is it such as ‘profoundly to distinguish such a tribunal from a section 96 Court’? [at DLR 682]. Could not questions of this sort be recast to assist in determining that degree of impartiality and independence required of any particular administrative tribunal so as to allow it to effectively discharge its ‘principle obligation’ to implement government policy legislatively determined? We turn now to assess the analytical framework for determining tribunal independence in the modern jurisprudence. Then, drawing on the approach to the sources of tribunal independence here laid out, we suggest a revision to that framework. We use as our focus for analysis the 1995 decision of the Supreme Court of Canada in Matsqui. II TRIBUNAL INDEPENDENCE: AN ANALYTICAL FRAMEWORK           Matsqui shows just how delicate, and ultimately frustrating a task it is to unravel the two strands of impartiality and independence in the jurisprudence. That this is so is highlighted by the different approaches taken by Chief Justice Lamer and Justice Sopinka in their separate analyses of the matter there before the Court. At issue in Matsqui was whether the appeal tribunals established under the statutory appeal procedures there governing gave rise to a reasonable apprehension of bias [177 NR at para. 61]. In 1992 certain Indian Bands with reserves in British Columbia had developed taxation and assessment by-laws pursuant to enabling provisions under the Indian Act RSC 1985 c. I-5. Apart from ordinary property assessment provisions, the Matsqui Band assessment by-law allowed for the appointment of Courts of Revision to hear appeals from assessments, and of an Assessment Review Committee to hear appeals from decisions of the Courts of Revision, from which Committee an appeal on a question of law could be had to the Federal Court Trial Division.           Canadian Pacific challenged the integrity of the assessment by-law on a variety of grounds, several of which went to jurisdiction and the question of adequate alternative remedy, but our focus here is on its assertion that the appeal tribunals gave rise to a reasonable apprehension of bias for two reasons: Members of the Band, themselves tax exempt, would be appointed to the appeal tribunals. Because Band members enjoy the benefits of tax spent on the reserve, a Band member on an appeal tribunal would have a direct and personal interest in setting high tax assessments so as to ensure greater tax revenue; Because non-Band members on the appeal tribunals are not guaranteed remuneration for their services nor enjoy any security of tenure of office they would be inhibited from rendering decisions adverse in interest to those of the Band and its members. [at 177 NR para. 61]           Neither the motions judge, who denied an application for judicial review, nor the Federal Court of Appeal which reversed, addressed the reasonable apprehension of bias issue. At the Supreme Court only six Judges did so, two in the majority and four in dissent. The latter four, although dissenting in the result, represent the plurality of the Court on the reasonable apprehension of bias issue as it touched tribunal independence. We turn now to consider the analysis of these two sets of Judges on the reasonable apprehension of bias issue. i. Matsqui: The Analysis of Chief Justice Lamer           First the decision of the Chief Justice whose analysis is the more expansive. He starts with the premise that in its interpretation of Charter section 11(d) “[t]his Court has developed important principles on the correct approach which should be taken to issue of bias, and particularly the issues of independence and impartiality.” [at 177 NR 365 para. 62]. The issues of independence and impartiality are construed as subcategories of the common law doctrine of bias and each is examined at the individual and the institutional level. As was the case with the motions judge, the Chief Justice declines to address the question of the individual impartiality of Band members appointed to the tribunals, for the allegations were speculative, no such appeal pending nor any Band member as yet appointed to a tribunal [177 NR at para. 64].           Given the framework for analysis he initially laid down, one would expect the Chief Justice at this point to turn to the issue of institutional independence. But instead, drawing on his decision in Lippé, he moves to consider whether the institutional structure of the tax assessment appeal tribunals, the members of which lack both tenure of office and financial security, gives rise to a reasonable apprehension of bias for lack of institutional impartiality. The discussion is fulsome [at 177 NR 367-371]. In response to the test set out in Lippé - whether in all the circumstances there will be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases - the Chief Justice states that the answer is “clearly no” [para. 68], and this for two reasons. First, the assertion that bias may arise because Band members on the appeal tribunals have a stake in the economic health of the community but pay no taxes, is countered by the argument that representation from all segments of society interested in the operation of any particular tribunal is appropriate, so as to ensure it reflects community interests, thereby assisting in its effective and efficient operation [para. 69-70].           Secondly, the argument premised on indirect pecuniary interest in the assessment process is simply too remote and attenuated to constitute reasonable apprehension of institutional bias [paras. 71-72]. Moreover, the potential for conflict of interest between members of the tribunal and those appearing before them is too speculative; it is prematurely raised [paras. 70; 72]. The Chief Justice concludes: “Therefore, it cannot be said that a reasonable apprehension of bias would exist in the mind of a fully informed person in a substantial number of cases. Any allegations of bias which might arise must be dealt with on a case by case basis as suggested in Lippé supra” [at para. 72].           Now, in Lippé, independence was said to be “a necessary prerequisite for judicial impartiality” although not of itself necessarily “sufficient” [at 128 NR 30 para. 48-49]. Thus, one might conclude that having found the appeal tribunals in Matsqui to have passed muster on the allegation of impartiality at both the individual and institutional levels, further analysis of lack of independence at either the individual or structural level would have been superfluous, or if undertaken, the outcome very nearly already determined. But to the contrary, Chief Justice Lamer subjects the assessment by-law in Matsqui to rigorous examination on the independence front, and finds that it does not pass muster. He concludes that the reasonable and right-minded person would have a reasonable apprehension of bias on the basis that neither the members of the appeal tribunals nor the tribunals themselves are independent. The analysis is extensive [at 177 NR 371-391].           He begins by reiterating the centrality of Valente in assessing the independence of an administrative tribunal, particularly one functioning in an adjudicative fashion where disputes are settled and rights determined, although recognizing that strict application of those principles governing judicial independence may not always be warranted given the variety of administrative tribunals [at paras. 75-80]. It is against that Charter developed jurisprudence that the common law test for reasonable apprehension of bias in the National Energy Board case is then applied to the facts at hand. The factors which the Chief Justice identifies as relevant to consider include the functions being performed by the particular tribunal, the nature of the tribunal, the interests at stake and other indices of independence, such as oaths of office - and in balancing these he observes that a flexible approach must be taken. [at paras. 83-85].           After searching review of the assessment by-laws, the Chief Justice concludes that the cumulative effect of three factors – the complete absence of financial security for members of the tribunal, the absence or at least ambiguity of security of tenure of the members, and the appointment of tribunal members by the Band Chiefs and Councils - establishes total lack of independence on the part of both the appeal tribunals and their members [at paras.98-99]. To conform to the requirements of institutional independence, amendment of the assessment by-law is required so as to guarantee remuneration and fixed periods of tenure for tribunal members [at para101].           In response to the assertion that the entire question of bias – whether on the impartiality or the independence front – has been raised prematurely, any apprehension of bias being merely speculative, the Chief Justice asserts that, although a legitimate objection when addressing institutional impartiality, it is not so when addressing institutional independence. The latter can be measured immediately on the sole basis of the formal structure of the appeal tribunals provided for in the assessment by-laws [at paras. 102-104]. On this point the Chief Justice disagrees deeply with Justice Sopinka. We have then an analysis of some complexity, encrusted with the theory of judicial independence developed in the Charter jurisprudence. ii. Matsqui: The Analysis of Justice Sopinka           The analysis of Justice Sopinka is not so expansive. Granted, he too acknowledges the relevance of the Charter jurisprudence on independence and impartiality in determining the allegations of reasonable apprehension of bias raised in the case of the appeal tribunal. But his emphasis is very much different. The three-fold criteria developed in Valente to determine judicial independence – security of tenure, financial security and administrative control - is barely adverted to [at 177 NR para. 152]. Rather Justice Sopinka stresses repeatedly that “Conditions of institutional independence must take into account their context.” [at para. 142, emphasis in the original], for it has become “almost a trite observation” that “the principles of natural justice are flexible and must be viewed in their contextual setting” [at para. 146]. Justice Sopinka identifies as “a very significant contextual factor” the fact that the taxation scheme under review “is part of a nascent attempt to foster Aboriginal self-governing” [at para. 143], a factor given no weight in the Chief Justices analysis of the bias issue.           In Justice Sopinka’s view, one simply cannot apply the principles of natural justice “without a clear understanding of the relevant operational context” and this is whether one is addressing institutional impartiality or institutional independence. Indeed, in contrast to the Chief Justice, Justice Sopinka minimizes the distinction between impartiality and independence which “even in the traditional judicial context is a close one”, the significance of which “would appear to hold still less weight in the administrative tribunal context”. [at para. 148]. He concludes that institutional independence is best assessed “by considering the practice of a tribunal as depicted in the context of an actual hearing” [at para. 153] rather than in a hypothetical sense relying solely on the scheme of the underlying legislation. In short, in contrast to the Chief Justice, Justice Sopinka finds any discussion of the bias issue to be premature, and hence speculative. His reasons for coming to this conclusion are best expressed in the following passage: Case law has thus tended to consider the institutional bias question after the tribunal has been appointed and/or actually rendered judgment. That institutional independence must be considered “objectively” does not preclude considering the operation of a legislative scheme which creates an administrative tribunal, but only vaguely or partly sets out the three Valente elements, as in this appeal, where the taxation bylaws in issue are silent with regard to details relating to tenure and remuneration. It is not safe to form final conclusions as to the workings of this institution on the wording of the bylaws alone. Knowledge of the operational reality of these missing elements may very well provide a significantly richer context for objective consideration of the institution and its relationships. Otherwise, the administrative law hypothetical “right minded person” is right-minded, but uninformed[at 177 NR para 152].           We suggest that this approach, which pays nodding heed to the Charter jurisprudence on judicial independence and impartiality, invites us to return to the traditional common law jurisprudence when assessing a challenge to the integrity of an administrative tribunal for reasonable apprehension of bias. Moreover, it invites us to revisit the section 96 jurisprudence which, in the Canadian context, lay the foundation for the development of a robust administrative state. iii. Matsqui: An Alternative Framework for Analysis           The emphasis which Justice Sopinka gives to contextuality in determining whether reasonable apprehension has been established in the case of administrative tribunals, highlights the distinctiveness of their status. They are not courts by another name nor do the concerns raised as to judicial independence and impartiality translate neatly to them. This can be seen as but a re-articulation of a much older strand of jurisprudence: that which has given body to s.96, “in terms an appointing power”[Tomko v. Labour Relations Board (Nova Scotia) (1975) 69 D.L.R.(3d) 250] There too, contextuality was said to be determinative of the question whether the particular function exercised by the tribunal whose constitutional integrity is questioned brands it as an improperly constituted court, rather than a properly constituted tribunal exercising judicial functions. It is important here to recall that mere exercise of judicial function does not a Court make.           Lord Simonds said as much in John East Iron Works where he wrote: “The borderland in which judicial and administrative functions overlap is a wide one…”[at DLR 679-80]. But, he did not give a comprehensive definition of judicial power beyond referencing its ‘broad features’ as stated in an Australian case approved by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation [1931] AC 275, where at issue were provisions of the Australian Constitution analogous to section 96. There the Privy Council had noted that: There are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power… In that connection it may useful to enumerate some negative propositions on this subject: 1) A Tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2) Nor because it hears witnesses on oath. 3) Nor because two or more contending parties appear before it between whom it has to decide. 4) Nor because it gives decisions which affect the rights of subject. 5) Nor because there is an appeal to a court. 6) Nor because it is a body to which a matter is referred by another body. [at AC 296-97].           It is against that background that Lord Simonds posed those questions in John East Iron Works which we noted above that invite one to take a functional and contextual approach to the question of whether a particular tribunal and its members ought to be vested or not with the status of a Court and the judiciary. In Tomko, Chief Justice Laskin emphasized the importance of that functional and contextual approach when he wrote: In my opinion, the judgement of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. and of this Court in Tremblay et al v. Quebec Labour Relations Board have properly emphasized what other cases have reflected in their consideration of the force of s. 96 … namely, that it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation.” [at 69 DLR(3d) 255, citations omitted].           These observations, so central to the determination of the integrity of a tribunal challenged under section 96, give in our view, an important theoretical underpinning to the contextual approach urged by Justice Sopinka in determining challenges to the integrity of an administrative tribunal for reasonable apprehension of bias. Moreover, we submit that this section 96 jurisprudence provides a more appropriate theoretical underpinning for Chief Justice Lamer’s functional analysis of the factors to be taken into account in determining a challenge for reasonable apprehension of bias in the administrative tribunal context, than does the Charter jurisprudence developed in the judicial context which he used as the substratum for his analysis in Matsqui.           In our view, one must undertake any analysis of independence in the administrative tribunal context fully cognizant of the underlying distinction between Courts and tribunals. We would do well to recall the four distinguishing characteristics of the s. 96 judiciary identified by Professor Lederman in his celebrated study “The Independence of the Judiciary” (1956) 34 C.B.R. 769, an article to which reference was made by Justice LeDain in Valente. These are their status as primary and original officers of the state, their training in the learned profession of the Law, their security of tenure and remuneration, and their distancing from the surrounding society. But when one looks to the administrative tribunal, even one of the adjudicative type, in place of primary and original officers of the State, we have creatures of statute; in place of persons trained in the learned profession of the Law, we have persons possessed of expertise and experience in a particular field of activity; in place of security of tenure and remuneration, we have appointments of limited duration on alterable terms; and instead of a culture of social distance, we have one of social involvement.           We suggest that the decision of the Supreme Court in Ocean Port invites a shift in the analytical framework within which to assess future challenges to the integrity of administrative tribunals for reasonable apprehension of bias. It is a framework which will take these underlying distinctions between Courts and administrative tribunals more fully into account. In the next section of this paper we turn to consider several factors relevant to the functional and contextual approach which such an analysis invites. III TRIBUNAL INDEPENDENCE: ITS MODALITIES           The Court in Ocean Port alludes to that fact that in the face of constitutional restraints, the independence of an administrative tribunal may attract “Charter requirements”. These Charter requirements of independence are well known -- they have been at the heart of much of our pre Ocean Port jurisprudence dealing with the independence of tribunals. They mandate that a person charged with an a offence be given a fair and public hearing by an “independent and impartial tribunal” (s. 11(d) Canadian Charter) or, in Quebec, that a person be accorded a “full, equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him” (Quebec Charter of Human Rights and Freedoms, s. 23).           As we note earlier, the tribunal independence jurisprudence has developed on a judicial paradigm. The concepts of security of tenure, financial security and administrative control are the ones which guide the analysis when a court is faced with determining whether a tribunal has sufficient independence to conform with the Charter. And, when Charter safeguards are not in issue, these concepts have still been used but with a certain flexibility to account for the operational context of the tribunal in question. Ocean Port suggests that, in non-Charter situations, we move away from the use of these judicial concepts to an approach that focuses on the legislative intent. Presumably, this also signals a shift to examining tribunal independence in light of the contextual and relational elements in which tribunals exist, as statutory interpretation has itself moved from a plain meaning approach to a modern, contextual one that takes into account “all relevant and admissible indicators of legislative meaning”.           While it is quite possible that the pre-Ocean Port jurisprudence employing the concepts of security of tenure, financial security and administrative control in non-Charter situations may no longer have binding value, it is still useful for what it tells us about the nature of the relationships that dominate the realm of administrative agencies. In particular, much is revealed about the relationships that exist between the executive and the tribunal members, as well as those between members of the tribunal itself, such as between members and the tribunal chair.           Questions of security of tenure are never as acute as when the appointment process prematurely breaks down. Analyzing “security of tenure” in an administrative tribunal context implies the question of how easily a tribunal member can be removed by the executive. By the same token, it raises the more general question of the degree to which the executive can interfere with a member’s tenure.           The corpus of cases addressing these issues is not very large. One notices right away, however, that the threat of statutory repeal is a fact of life for boards and tribunals that simply does not exist for s. 96 courts. Furthermore, once abolition of a board takes place, the OIC appointment is treated as very much akin to a simple contract with the members entitled to compensation in the form of damages. By contrast, the notion of a s. 96 judge for hire on contract who can be dismissed with compensatory damages is not one that even enters our field of consideration.           Apart from abolition, examples of cases examining the degree to which a tribunal member’s tenure is guarded from interference are found in Hewat v. Ontario . In Hewat, three vice-chairs of the Ontario Labour Relations Board received orders in council purporting to revoke their fixed-term appointments in mid-term due to “financial constraints… requiring changes in appointments to the Board” . The orders in council attempted to change the full-time appointments to part-time at pleasure appointments. There was no suggestion that the conduct or performance of the members had anything to do with the revocations. The three members applied for judicial review.           The Divisional Court found that the OICs were null from their inception and issued a declaration that the orders in council were invalid to the extent that they purported to revoke the original appointments. They also declared that each member was entitled to serve the balance of his or her term and that each member was entitled to the losses suffered as a result of the unlawful termination. The Court of Appeal agreed with the reasoning of the Divisional Court. While it did not order reinstatement, finding such action inappropriate in light of the fact that the appointments had expired, were on the verge of expiring or had been filled, it did agree with counsel for the members that the sole order should be a declaration of nullity of the OIC without an order directing damages. The court affirmed that the image of independence is undermined when the government breaches its commitments to fixed appointments and held that its order would not encourage repetition of this conduct.           On one level, Hewat offers us the proposition that a government’s financial considerations are not enough to justify the simple removal of a fixed-term member of a board. But not all appointments are of this nature. As for “at pleasure” appointments, at the other end of the spectrum, Justice Gonthier suggested in Régie that such appointments could never provide sufficient independence, a proposition which would call into question the independence of several tribunals. Chief Justice MacLachlin’s decision in Ocean Port seems to have put that idea to rest as the very type of tenure approved in Ocean Port was at pleasure. Nevertheless, there is not much indication in the jurisprudence of what would make such a discretionary removal suffer judicial criticism for being one that does not respect natural justice.           Equally, given that the “primary policy-making function” is the component of tribunal work that convinced the Supreme Court in Ocean Port that “it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it” , we can only assume that a purposive and contextual approach to determining legislative intent will acknowledge the varying degrees to which different tribunals exercise a policy-making function. For those tribunals whose reality consists of more adjudicative than policy-making tasks, the degree of independence may not adequately be determined by statute alone.           Influences affecting the independence of tribunal members are not only external. Intra-agency relationships – that is, relationships between members of a tribunal—can have a significant impact on the decision-making process of individual members. This aspect of independence is not as widely explored as the relationship between the executive and the tribunal. There are many reasons for this including the delicacy of deliberative secrecy.           Nevertheless, this type of interference has been brought to light in our jurisprudence through situations where the policy development aspect of a tribunal’s work appears to have caused the tribunal to breach its obligations of natural justice to the parties before it. The trilogy of Consolidated Bathurst , Tremblay and Ellis-Don are an example. In each, full board meetings at which members were invited to raise for general discussion policy issues arising in pending cases suggested that the panel members deciding the cases may be influenced by others on the board. While this sort of practice may be relatively easy to catch by counsel other practical realities of the way a tribunal exists can also affect the independence of a member. For example, the fact that the tribunal chair may have the responsibility of recommending to the responsible Minister the members whose terms should be renewed.           The point we can draw from all of this is that the many ways in which tribunals are structured suggest that the independence of a tribunal cannot merely be gleaned from the words of the enabling legislation. Legislative intent as to the independence of a tribunal will have to take into account many contextual factors that stem from the actual functioning of the tribunal as well. Ocean Port’s invitation to the courts to move from using the judicial paradigm is a step in the right direction. Hopefully, the court will move a further step and consider practical and contextual realities in the determination of tribunal independence as well. IV. CONCLUSION           At the outset of this study we ask whether an integrated approach to addressing questions of the independence and impartiality of administrative tribunals is possible. We suggest that a clearer understanding of the deep structure of our Constitution, one 'similar in Principle’ to that of the United Kingdom may assist in the development of such an approach. It is in that deep structure that the common law doctrine of bias, rooted in the rule of law, but always subject to the supremacy of Parliament, was shaped. In Ocean Port the Supreme Court reminded us of this ancient source of that doctrine.           The constitutional entrenchment in Charter section 7 and section 11(d) of the right to be heard by an independent and impartial tribunal adds a new dimension to the older common law tradition. But it does not displace nor supersede it. The older tradition, with its sensitivity to the distinctiveness of the quasi-judicial administrative tribunal in all its variety over against the Courts, continues to be the root of bias doctrine. That root is nourished by Charter entrenchment of the right to a hearing before an independent and impartial tribunal, but not transplanted into the Charter.           We have suggested here that an integrated approach to the issue of tribunal independence and impartiality is possible. It is an approach rooted firmly in common law bias doctrine as an expression of the rule of law, with its respect for parliamentary supremacy as legislatively expressed. It is an approach sensitive to the deep structures of our Constitutional order, particularly the separation of powers doctrine as developed in the section 96 jurisprudence. And it is an approach cognizant of the more recently entrenched Charter right to be heard by an independent and impartial tribunal. It is, in short, an approach that is pragmatic and functional, responsive to the great variety of tribunals within Canada's administrative justice system. Notes * Department of Justice, Canada (Ottawa). ** Faculty of Law, University of New Brunswick and Vice-Chair, New Brunswick Labour and Employment Board. The comments expressed in this paper are the views of its authors, not necessarily those of the CIAJ, the Federal Department of Justice or the NB Labour and Employment Board. The authors invite comments on this draft, which also may be cited as such; we anticipate a final version for publication in the future. Coordinates: kuttner@unb.ca ; jacobs_l@hotmail.com . 1) See Ocean Port Hotel Ltd. v. British Columbia (Liquor Control and Licensing Branch, General Manager) (2001) 204 D.L.R.(4th) 33 at para 24 where Chief Justice McLachlin asserts: “While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected”. 2) One should also note s. 7(d) Charter and sections 2(e) & (f) of the Canadian Bill of Rights which is an enactment to which all federal statutes must conform. 4) See, for example, 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool) [1996] 3 S.C.R. 919. 5) See Matsqui at para 117 ff. 6) R. Sullivan, Driedger on the Construction of Statutes, (3d ed, 1994) at 131 cited with approval by Justice L’Heureux-Dubé in Régie. And see, generally, Régie, in which Justice L’Heureux-Dubé propounds the modern, contextual approach to statutory interpretation. 7) Although abolition can arise for municipal courts. 8) See Reilly v. The King [1934] A.C. 176 holding, without deciding definitively whether the relationship between the Crown and a board member can ever be contractual, that a member of a board that had been abolished through statutory reform could not receive damages for breach of his contract as performance of the contract had been made impossible by statute. Similarly, if the office rested on statute as opposed to contract, then upon its abolition, the Crown was relieved of any obligations arising under it.; Contra Wells v. Nfld [1999] 3 S.C.R. 199 in which the the Court held that such a relationship was contractual, and unless the Legislature specifically so enacts, abolition of the statutory office does not strip the incumbent of the right to compensation flowing from the contract; (1997) 32 O.R. (3d) 622 (Div. Court); (1998) 37 O.R. (3d) 161 (C.A.). See also Dewar v. Ontario (1996) 30 O.R. (3d) 334 (Div. Court) ; (1998)37 O.R. (3d) 170 (C.A.), decided by the Court of Appeal as a companion case to Hewat; and Preston v. British Columbia (1993) 81 B.C.L.R. (2d) 218 (B.C.S.C.); (1994) 92 B.C.L.R. (2d) 298 (B.C.C.A.). 9) Hewat (Div. Court) at para. 2. 10) Ocean Port, at para 24. 11) I.W.A. Local 2-69 v. Consolidated Bathurst Packaging Ltd. [1990] 1 S.C.R. 282. 12) [1992] 1 S.C.R. 952. 13) Ellis-Don Limited v. OLRB (2001) 265 NR 2 (SCC)