Thank you for the invitation to appear before the committee. I apologize for not being there in person, as I had hoped.
My name is Laverne Jacobs. I'm a law professor at the University of Windsor. I write and teach on topics in the fields of administrative law and law on disabilities. My work seeks to put into place contemporary understandings of access to justice. Over the past 15 years I've authored several publications in the field of administrative law. My research has focused on tribunal independence, transparency, accountability and oversight, and the workings of administrative bodies. Between 2015 and 2017, I was editor-in-chief or co-editor-in-chief of the Windsor Yearbook of Access to Justice. Finally, between 2005 and 2012, I held order in council appointments as a member of the Accessibility Standards Council of Ontario and as a part-time member of the Human Rights Tribunal of Ontario.
In my opening remarks, I would like to address three main topics. The first is the training of IRB members. The second is the complaints process and independence. The third is best practices for tribunal codes of conduct and their complaints procedures. However, before I get into these three main topics, I would first like to briefly situate the issues this study is addressing within some larger currents within administrative law.
Over the past decade, there's been a shift in administrative law in terms of the values that are held to be most important. Between 1979 and 2008, one saw an increased interest in providing deference to administrative decision-makers and their various choices. This is amply seen in the administrative law jurisprudence and literature. However, in the last decade or so, there's been a growing recognition of the importance of the administrative state to vulnerable populations, and an increased call for greater accountability and substantive access to justice for vulnerable individuals. What's missing in administrative law, however, is the cohesive theory of administrative justice for addressing these new demands. This committee has an opportunity to help shape what administrative justice should look like in contemporary times.
It's clear from the issues raised in this study—namely sensitivity in adjudication to the situation of applicants who may be persecuted, sensitivity to sexual orientation and gender identity issues, and sensitivity more broadly—that there are at least four crucial elements that should exist in any administrative law system if it is to provide administrative justice. These elements are, first, that decision-makers should show empathy. Second, adjudicative systems should be trauma-informed or at least aware of the impact of trauma on those before them, and try to avoid retraumatization. Third, an administrative justice system should be self-reflective. It should learn from the challenges and errors that have taken place within the system. Fourth, any administrative justice system should be transparent, to the extent that it can be, about its processes and about the reasoning behind its decision-making.
Traditionally, Canadian administrative law has focused on four values—efficiency, expediency, expertise, and fairness—and worked with the tensions that arise among them. I think it's time for administrative law to move forward in developing a concrete system of administrative justice that not only addresses the traditional values but also strives to fulfill the more recently articulated goals as well.
This framework lies behind my analysis of the three issues that the committee is facing, which I will turn to next. I'm happy to elaborate during the discussion.
First, with respect to the training of IRB members, based on the evidence that has been presented by Professor Rehaag, the discrepancy rates in admissions arise from the inability of certain adjudicators to assess credibility. Other evidence has raised the additional problem of insensitivity to claimants. In my opinion, these issues should be addressed through training. IRB members need to have ongoing training on ways of assessing credibility and avoiding implicit bias. Instructional examples need to be examined collectively, in training sessions for board members, to discuss why and how adjudicators move from the facts that they receive to the outcomes that they give. In doing this training, it's important to refrain from pressuring individuals to decide in certain ways, as doing so would violate the independence of adjudicators and would be contrary to Supreme Court jurisprudence. What should be emphasized in training is how to check for implicit biases. Moreover, the result of conduct complaints should be anonymized and used as training tools for the collective board.
Second, with respect to the complaints process and independence, an issue that has been raised before the committee is whether it is acceptable for complaints to be made through a process in which the final decision-maker is the chair of the IRB, or whether an independent final decision-maker or even an independent complaints process should be instituted. In my opinion, while the 2017 complaints procedure is an improvement over the last, it is best if the chair of the IRB does not make the final decision on conduct complaints.
In an already politicized climate, where public confidence in the IRB has suffered a blow, having the chair decide whether a member has violated conduct requirements will not lead to restoring public confidence. As a general principle, and outside of the particular situation of the IRB, questions will always be raised as to whether a chair is favouring decisions that protect the image of the tribunal. The process also risks interfering with members' adjudicative independence. For these reasons, I disagree with the submission of my colleague Ron Ellis on the issue of an independent final decision-maker.
Third, what are best practices for designing administrative tribunal codes of conduct and complaints proceedings? Codes of conduct are a relatively new phenomenon in Canadian administrative law. In Ontario, the 2009 Adjudicative Tribunals Accountability, Governance and Appointments Act requires every adjudicative tribunal to create a code of conduct. Little guidance is offered, however, as to what should be included in this document. There is also little literature on the design of tribunal codes of conduct. Across the country the practice of keeping codes of conduct is piecemeal.
ln terms of best practices for tribunal member complaint procedures, the procedure should have an investigating panel and a final decision-maker to which the investigating panel presents recommendations. Both the investigating panel and the final decision-maker may be from the same reviewing entity, as seen, for example, in the Conseil de la justice administrative, Quebec's administrative justice council. The final decision-maker should be distinct and at arm's length from the investigating panel.
Does the final decision-maker need to be in the form of a panel? There are not many examples to study for the answers to this. For adjudicative bodies, a panel incorporating members of a group of administrative tribunals has been used in Quebec. An integrity commissioner has been used, under the City of Toronto Act, for local boards. However, the local boards tend not to be adjudicative but polycentric in nature.
In my opinion, the matter comes down to the extent to which it is necessary at the final decision-making stage to have a member of the administrative tribunal who understands its inner workings and can convey that knowledge. If that seems unnecessary for the tribunal in question, a sole individual who is an independent third party with knowledge of ethics, such as the Office of the Conflict of Interest and Ethics Commissioner, could perform the job.
At the same time, the current commissioner is the past chair of the IRB. This too can cause a reasonable person to have concerns about fairness in the process. I would therefore suggest that the commissioner's office be used but that the current commissioner not be involved in any matters relating to the IRB.
Last, based on a reading of a number of tribunal codes of conduct, I suggest that four elements should be present in a tribunal code of conduct: a statement of its purpose; civility and ethical requirements; breaches, sanctions, and the process for determining complaints; and a description of how the complainant will be involved.
Thank you.