ADMINISTRATIVE JUSTICE OFFICE
UPDATE ON 2007 REFORMS IN OTHER JURISDICTIONS
(As of June, 2007)
Some of the more significant administrative justice reforms undertaken or
initiated in other jurisdictions between January and June, 2007 are summarized
• The Interim report of the Facilitator of the Ontario Government’s “Agency
Cluster Pilot Project.”
• The publication of a Guide on automated assistance in administrative
• Agreement on a delivery model for administrative support to the UK
• A review of the remuneration of the judiciary of tribunals within the
Tribunals Service. (UK)
• The hosting of a Symposium on administrative justice in the European
Earlier AJO updates on reforms in other jurisdictions are available at the
Administrative Justice Office website at: http://www.gov.bc.ca/ajo.
Council of Canadian Administrative Tribunals
The Council of Canadian Administrative Tribunals’ (CCAT) 4th International
Conference was held in May, with presentations by experts from Canada,
Australia, New Zealand, South Africa, the UK and the US. The conference
papers are expected to be posted on the CCAT website soon.
CCAT used the Conference to launch its new guide for tribunal members and
staff, Introduction to Administrative Justice and to Plain Language, to support
plain language communications with tribunal users. CCAT plans to make the
guide available on its website. This new guide continues the work begun with
CCAT’s 2005 publication Literacy and Access to Administrative Justice in
Canada: A Guide for the Promotion of Plain Language.
The Appeal Procedures Statutes Amendment Act, introduced in March, came
into force April 20, 2007. The Act amends the timelines for obtaining leave from
the Court of Appeal to appeal a decision made by certain of Alberta’s tribunals
(principally those that deal with energy and utilities matters). The amendments
continue the requirement for leave applications to be made within 30 days of the
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tribunal’s decision, but provide for that time limit to be extended “where, in the
opinion of the judge, circumstances warrant it.” The amendments also clarify that
the court does not have to decide the application within the 30 day time frame. In
addition, the amendments require tribunals to provide applicants with the
materials they request to support the leave application (within 14 days of
receiving a formal written request), but only require a transcript or record of the
hearing to be provided if leave is granted or the court orders.
The Alberta Law Reform Institute is conducting a major review of the Alberta
Rules of Court to produce recommendations for a new set of Rules, including
those relating to judicial review, and issued its latest Draft of the new Rules of
Court in February.
The Agency Cluster Facilitator released his Interim Report in January. (As
discussed in the AJO’s December, 2006 reform update, the Project is looking at
five tribunals that work in related areas to make their services more simplified,
accessible, and consistent.) The Facilitator’s Interim Report summarizes the
information collected from stakeholders to improve services through coordination
and cooperation and makes several recommendations, including considering:
▪ co-location to provide one access portal for the public.
▪ a single web access portal for “virtual” co-location.
▪ sharing professional, administrative and support services.
▪ moving to full-time instead of part-time adjudicators.
The Facilitator is continuing to work with the tribunals and his Final Report is to
be provided to the Minister of Government Services later in the summer.
The Ontario Ombudsman issued a report, Adding Insult to Injury: Investigation
into the Treatment of Victims by the Criminal Injuries Compensation Board, which
is highly critical of what it concluded is a “gruelling bureaucratic maze” caused by
chronic government underfunding of the Board. A central theme of the report
was the government’s failure to recognize and respect the independence of the
Board as a quasi-judicial body, and the impact of lack of funding on the
independence of the Board and the integrity of its decisions, as well as the
Board’s culture. [Unlike most administrative tribunals, the Board not only orders
compensation but is also responsible for paying for it out of its own budget so
that the responsible Ministry (Attorney General) influenced both the size and
timing of awards by limiting the Board’s budget.]
The Regulatory Modernization Act, which was given Royal Assent in May and will
come into force in January 2008, is intended to improve efficiency in the
administration and enforcement of regulatory legislation by providing government
ministries and their agencies with greater authority to collect, use and share
information gathered from inspections and other compliance-related activities.
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Section15 expressly allows a prosecutor to request the court treat a previous
conviction as an aggravating factor when determining the appropriate penalty for
a subsequent conviction.
Saskatchewan’s new Residential Tenancies Act, 2006 came into effect in March,
replacing the former concurrent jurisdiction of the provincial Rentalsman and the
Court of Queen’s Bench with exclusive jurisdiction for the director of residential
tenancies over all disputes involving monetary claims of less than $10,000.
The Occupational Health and Safety (Harassment Prevention) Amendment Act,
2007 came into effect in May, creating a new appeal process and Special
Adjudicator to hear appeals from initial decisions made by occupational health
officers about workplace harassment complaints.
The Saskatchewan Law Reform Commission’s “Handbook of Professional
Disciplinary Procedure,” should be available very soon; in the meantime the
earlier Draft of the Handbook is available online.
The Saskatchewan Ombudsman’s investigation into the timeliness of decision
making by Saskatchewan’s administrative tribunals is underway, but no further
details are available at this time.
The Nova Scotia Law Reform Commission is continuing to assist the province’s
Supreme Court and Court of Appeal in the Courts’ work to rewrite Nova Scotia’s
Civil Procedure Rules, including the rules for judicial review proceedings, with the
new Rules expected to be completed in 2008.
Bill 14, the Employment Standards Act, given second reading in the Legislative
Assembly in May, is currently at the committee stage. The Bill would replace
three labour statutes with a single Act and give employment standards officers
primary responsibility to enforce employment standards and to hear complaints
and make orders. The Bill also provides for the appointment of adjudicators to
hear appeals from the decisions and orders of employment standards officers.
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The Australian Government published an “Automated Assistance in
Administrative Decision-Making Better Practice Guide,” which “provides practical
advice and checklists to ensure that [information technology] systems used to
produce decisions affecting individuals are fair, accurate, and open to audit and
review.” The Guide is based on the Administrative Review Council’s 2004 report
on automated decision-making, described in the AJO’s 2004 reforms update.
The Administrative Review Council (ARC) is currently working on three projects:
• Submissions on the Council’s Draft report on government agency
coercive information-gathering powers (described in the AJO’s
December 2006 reform update) closed in February, 2007.
• An initial report on “Administrative Decisions in Areas of Complex and
Specific Business Regulation,” is expected by September 30.
• Work is continuing on a practical publication on procedural fairness for
government decision makers.
For more information on these projects, see the Administrative Review Council’s
The Australia Law Reform Commission released an Issues Paper, “Client Legal
Privilege and Federal Investigatory Bodies” as part of its on-going review of client
legal privilege (known in Canada as “solicitor-client privilege”) in investigations by
bodies such as the Australian Taxation Office and federal Royal Commissions of
inquiry. Submissions on the Paper were due by June 4, 2007. A Discussion
Paper is expected to be released in late August, and the Commission’s Final
Report is due to be delivered to the Attorney General by December 3, 2007.
The Australian Administrative Appeals Tribunal is conducting a review of practice
and procedure in each of its major areas of jurisdictions (e.g. worker’s
compensation, social security) and will be publishing guides setting out general
information about how the Tribunal will manage cases in that particular area.
The first such guide, a "Guide to the Workers' Compensation Jurisdiction," has
already been published.
The New Zealand Law Commission expects to release its report on government
agency powers to enter private property, carry out searches, and seize goods for
use as evidence, in the very near future. (The Commission’s 2002 discussion
paper on the topic is available on their website.)
The Law Commission also released an Issue Paper examining the purpose of
public inquiries, in January, 2007. The paper focuses on commissions of inquiry,
royal commissions and non-statutory ministerial inquiries.
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The Tribunals Service:
The Tribunals, Courts and Enforcement Bill, which will provide the new, simplified
statutory framework for the Tribunal Service by formally bringing the existing
tribunal jurisdictions together and providing a structure for new jurisdictions and
new appeal rights, was given Third Reading in the House of Lords in February,
2007. The Bill is now at the Committee stage in the House of Commons. More
information on the Bill and the legislative process is available on the UK
Government’s Department for Constitutional Affairs website, and in the AJO’s
December 2006 reforms update.
In the meantime, two new tribunals were created and joined the Tribunals
Service in early 2007: the Gaming Appeals Tribunal and the Claims Management
Services Tribunal. In addition, two more tribunals, the Asylum Support Tribunal
and the Care Standards Tribunal, joined the Tribunals Service in April.
The Tribunals Service Management Board, an executive agency of the
Department for Constitutional Affairs that provides common administrative
support to the Tribunals Service, adopted a future delivery model. The delivery
model proposes core hearing centres to be located in the most densely
populated areas, permanent hearing centres (locations still being determined),
with casual hearing centres to supplement the core and permanent centres as
necessary, and will “establish six multi-jurisdictional Administrative Support
Centres (ASCs), each having full processing capability. ASCs will focus on the
start-to-finish administration of a case to support the delivery of hearings in the
complementary Tribunals Service hearing centre network.”
The Senior Salaries Review Body announced a review of the remuneration of the
judiciary of tribunals within the Tribunals Service, to help those tribunals
transition into the Tribunals Service. The review aims to propose a pay structure
for the tribunals’ judiciary, including fee levels and a formula for determining
future fee levels. More information on the review is available through the Office
of Manpower Economics website.
The Council on Tribunals (which is to become the Administrative Justice and
Tribunals Council and have its mandate broadened under the Tribunals, Courts
and Enforcement Act, see notes above) initiated a survey to obtain a fuller
picture of the type and adequacy of the arrangements tribunals use to consult
with user groups and their representatives.
The Judicial Studies Board, which provides training to members of the judiciary
and tribunals, updated its Equal Treatment Bench Book, designed to ensure all
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parties are treated fairly before courts and tribunals. The update includes
guidance on the wearing of the full veil, or niqab, in court or before tribunals.
The UK Law Commission expects to publish a consultation paper on remedies
against public bodies in public and tort law in the fall of 2007. The consultation
paper follows a scoping report, finalized in October 2006, which sets out how the
Commission will proceed with a substantive project on the topic.
The Nuffield Foundation, a charitable trust that strives to “advance social well
being” through research and experimentation, has launched a new initiative on
Administrative Justice. As part of its initiative, the Foundation is looking to fund
work on four specific areas of administrative justice:
▪ The initial selection, filtering and handling of grievances, complaints,
claims and appeals that take some step beyond the initial decision;
▪ “Feedback”: the variety of methods used by adjudicators to inform and
educate ‘first tier’ decision-makers;
▪ The choice of redress mechanisms; and
▪ The value of individual procedures to the quality of administrative
The Foundation is currently soliciting proposals for research in these areas.
The American Bar Association’s Administrative Law and Regulatory Practice
Section is currently working on its European Union Administrative Law Project to
“educate lawyers, businesses, and the broader public concerning current EU
administrative law and regulatory practice” and foster discussions between
American and European Union lawyers and members of the public. A report is to
be published in the fall of 2007; draft versions of the papers that will be compiled
to form the final report are available on the project’s website.
The Administrative Law and Regulatory Practice Section is also working on a
long-term project on the federal Administrative Procedure Act and related
statutes. The project will recommend ways to update and clarify the law in light of
legislative, judicial, and administrative changes that have taken place since the
Act was enacted in 1946.
The Association of the Councils of State and Supreme Administrative
Jurisdictions of the European Union organized a symposium, “Administrative
Justice in Europe,” in March. The symposium grew out of the first ever
comprehensive research study on administrative justice in the European Union
Member States (launched in 2005 and noted in the AJO’s July 2006 reforms
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