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Book review: Unjust by Design: Canada’s Administrative Justice System by Ron Ellis

Book review: Unjust by Design: Canada’s Administrative Justice System by Ron Ellis
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By Mike Stephens

Anyone remotely interested in the current state of the administrative justice system in Canada should read a recent book authored by administrative law scholar and practitioner Ron Ellis, titled: Unjust by Design: Canada’s Administrative Justice System. In his comprehensive and thought-provoking work, Ellis engages in a thoughtful and critical analysis of the state of tribunal independence in the administrative justice system in Canada. Candid and bleak, but not defeatist, Ellis seeks to lay bare the current state of the administrative justice system while offering a course forward for productive change.

Ellis moves forward and offers a recipe for law reform and positive change.

Ellis starts from the undeniable premise that “what judicial tribunals do really matters — often desperately” and provides his personal experience as to the potentially profound consequences of certain tribunal decisions. Skillfully dividing the universe of administrative “rights-determining” bodies into categories, he isolates a subset — what he refers to as  “judicial tribunals” — and subjects such tribunals to both a pragmatic and conceptual independence analysis. In his respectful assessment, such tribunals woefully lack independence. He does not mince words, stating tersely: “This book is about a national scandal, about Canada’s long tolerance of a system of justice – the system of administrative justice — in which the rule of law’s justice system requirements of structural independence and impartiality are simply absent.”

Moving beyond this blunt and ostensibly bleak assessment, Ellis moves forward and offers a recipe for law reform and positive change. His proposal includes the enactment in each province and territory, and federally, of an Administrative Justice Bill of Rights (to have quasi-constitutional status) which will provide that no one may lawfully exercise a judicial function unless their independence and impartiality is objectively guaranteed in accordance with the Valente principles of judicial independence. He further proposes the creation of six new institutional structures which would include an independent Governing Council for Administrative Tribunals, and an Omnibus Judicial Tribunal (or super tribunal).

While not all may agree with his conception of the ideal administrative state, it is hard to take issue with the fundamental thesis for Ellis’s book: that what happens before certain administrative tribunals can impact the lives of Canadians directly and profoundly, and so all of us should care deeply about the integrity of the system of administrative justice and strive to make it the best it can be. Ellis’s work should not simply be regarded as a valuable contribution in administrative law.  Rather, his methodology of coupling a critique of the state of the law, with a constructive and thoughtful proposal for change, is a model for academic scholarship in the area of legal reform in Canada more generally.   .

Mike Stephens, Chair, CBA Administrative Law Section (BC) and Legislative Liaison for the National CBA Administrative Law Section.

 

Intra Vires, July 2013 - CBA National Administrative Law Section Newsletter

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