Independence Flashcards
Independence
Often the lines between independence and bias are blurred
But they are actually separate and distinct
What does independence refer to?
The impartial state of mind of the adjudicator
The relationship of the tribunal and others
The degree of interference from executive
The tribunals structure among the broader admin context
Similarities between independence and bias
They form part of natural justice
Independence initially introduced for the separation of powers between the judiciary and the executive
extends to quasi judicial and admin tribunals to keep them at an arms length from the executive
Independence v bias state case
Valente
Bias focuses on the dm’s state of mind
Independence refers to the actual exercise of judical fucnctions and its relationshop to others, like the executve
Conditions for judicial independence
Valente
Security of tenure- will they get fired if make an adverse decision
Financial security- are they getting paid enough
Are they being given the capabilites to be able to exercise their funcitons?
When do judicial independence principels apply
When tribunal is exercising an adjudicative function
Pragmatic analysis
When determining the degree of independence courts must adopt pragmaic analyiis
Valente conditions apply
But also dependent on functions and activities of the tribunal
Whats the test for independence
Reasonable person kore likely than not independent or not
The level of independence
Because admin tribunals are part of executive, theyre not subject to the same judical independence unless
Serving as adjudicator- mirrors judiciary so should be like judge
If only involved w minor rights, less independence
What does the level of independence depend on?
The nature of the tribunal
Interests at stake
Other interests of independence,ie an oath
Ocean Port
Leg intended for this stucture
Lack of con distinction from executive cuz its a branch
therefore, when tribunals don’t talk about c7 rights, the degree of independence is what the legislature intended it to be
Highest level of judical independence will apply to
Review boards
Section 7 tribunals
Why is judicial independence greater than admin independence
Admin independence derives from common law duty of PF
Judicial independence arises from con principles
Bell Canada case
If adjudicative, high standard of independence
Guidlines authorised by statute are binding just like regulations
Just cuz extended ter to resolve issue doesnt mean they would ake a deicison in favout
Determining degree of independence
State cases
Baker- pragmatic and fucntional analusis given context
Canadian pacific v matsqui
NAture of tribunal
Interest at stake
Other requirements of independence, i.e. oath of office.
