Thank you, Mr. Chair.
I believe I was called here on somewhat different grounds from what most other witnesses would present because I don't come with particular knowledge of VRAB. I would like to make some general remarks about tribunals, what we can expect of them, and then perhaps the questions could enlarge on some particular applications.
I provided a short paper. I'll skip the first page because that is just my background and the background of CCAT, which is the organization I represent. I'd like to go to the rest of the short paper though and highlight a couple of things, four items in particular. Before I do that I would like to apologize for the first page of the principles, which is the first page of the appendix on page 5. Somehow 6 got divided into 6 and 7. When I refer to 7 it should be the one that is numbered 8, I believe, in your package.
The first area I would address is the area of expertise. Tribunals have a different role in the delivery of justice from what the courts have. The expectation is that tribunal members will bring with them expertise in the areas that the tribunal deals with. Secondary to that is their expertise in the law. Although of course the framework within which they work is a legal framework and the framework is a legislated framework, nevertheless the principal skill they must have is in the areas that are of some importance to the subjects they're dealing with.
Many tribunal members are not lawyers. I believe that's the case with this tribunal as with many others. The indication of that is the way reviewing courts regard tribunals. Normally it's considered that there will be two standards of review. One is for the findings of fact, and that's in the areas of information that the evidence applies to, and the other is matters of law.
In findings of fact, the courts normally simply defer to the tribunals and say they're the experts in that area so the courts are not going to step into their shoes and interfere with their decisions in that area. Where the reviewing court will take issue usually is with the way in which a hearing is conducted, what they see as the fairness, and the way in which the tribunal has handled the law. The standard of review for legal issues is correctness.
Tribunals have a special role in that way and they are formed to fulfill that role. Once the tribunal is in place, one of the principal issues, which is the second one I'd like to refer to, is fairness and ethical conduct. Fairness could be tied in with objectivity. Ethical conduct is the manner in which witnesses and counsel are treated by the tribunal, the way in which colleagues are treated within the tribunal. It should be remembered that in any tribunal the rule of natural justice applies and should be paramount. Simply stated, the rule of natural justice is just the right to be heard by an impartial decision-maker. There are two elements. One of them is the right to be heard, and the other is when one is heard it is by an impartial decision-maker.
Ethical issues are more pervasive in tribunals than one might expect. It's not just an add-on or a plug-in; it's something that has to apply all the way through. The relations between an appellant and a tribunal need to be treated with respect.
Respect is mutual, of course, or reciprocal, as it should be. Leading up to the hearing, it's helpful to have a tribunal that provides information on the way its procedures work. During a hearing, the process must be seen as fair and balanced.
There is a problem sometimes in tribunals with descent into the arena. It's inappropriate for members of a tribunal to take sides and start arguing with witnesses or counsel. The distance should be maintained, and that's something that we would say would be applied to any tribunal. I'm speaking generally about the principles of conduct of a tribunal.
The third area is transparency. Transparency is ensured by a variety of things. At the tail end of the process, transparency often can be best served by the publication of the results of all hearings. In a situation where the tribunal deals with individuals, as this one does, of course the results have to be depersonalized. Nevertheless, for the sake of researchers, for the sake of people following along who will have similar cases in the future, it is certainly worth having decisions published on the website or in some manner. These days, typically, it is on the website.
In connection with that, I'd like to make some remarks about the relationship between the tribunal and its constituency. The constituency of a tribunal is not determined one by one. It's not that the tribunal has a relation with an individual who comes before it. The tribunal has a relation, indeed, with that individual in deciding a matter that affects that individual, but it has a relation with the broader community of which that person or that organization is representative, or perhaps even just a member.
This is tied to the idea of transparency. When an individual goes before a tribunal and the decision handed down goes only to that person, it doesn't serve the community's needs. It serves only the relationship with that one person. In order to provide the best outcome of the relation, transparency is important to maintain. It's also tied to the idea of consulting. When we're doing our training, we make sure to emphasize that decisions have to be made on the basis of the evidence presented.
For example, when it's a labour relations issue, it's inappropriate for a tribunal or panel member to step outside the room and call cousin George who happens to know about certain things in the snowplowing industry. Cousin George should stay out of the picture. This goes for experts as well, medical experts, legal experts, and so on. All of that consultation should be above board, and if there is information drawn from sources other than the witnesses or the appellants, then the other sources should be brought into the process transparently.
Finally, I will refer to independence. This is my fourth item. Tribunal members are appointed federally, provincially, even municipally on a wide variety of bases. One of the things that varies greatly is the length of terms. When terms are short, tribunal members tend to look over their shoulders at what's going to provide the best chance of reappointment. That's a crude way of putting it, but there is some truth to that.
Security of tenure is an important element in the bolstering of the idea of independence of tribunals and tribunal members. Tribunal members and the tribunals themselves should make a point of exercising independence in the way they operate as well and not worry about who might think what about their decisions. As long as the decisions are properly made and based on the evidence, there should be a good chance that they will stand.
To go back to the matter of decisions for a moment, I indicated that decisions must be made on the basis of evidence presented. That evidence, of course, can be public knowledge of a variety of things. It's not just the testimony that's presented in the hearing room. The reviewing courts, up to the Supreme Court, have made it very clear that decisions must be explained. A decision is not good enough without cogent reasons. Reasons are a real hobby horse of reviewing courts, quite frankly, and they will very frequently go against a decision that is not supported by adequate reasons.
Weaving this back through the discussion, when I was talking about the constituency, I was talking about the constituency being not just the individual who appears before the tribunal, but also the broader constituency. The constituency is best served not only when the decisions are made public or made accessible in some manner, but also when the reasons are given, are adequate, and are undeniably leading to a particular conclusion.
Those are a few points. Since I have no particular knowledge of VRAB, I made some what I confess are shallow comments based on my reading of the website, but I think that's all I need to say for introductory remarks. Thank you very much for the opportunity.