A post-Covid era has demonstrated that tribunals are, in fact, capable of expanding access to justice. However, it is important to note that the same regulatory agencies that claim to be more inclusive refused to conduct virtual hearings before the pandemic unless some extenuating circumstances would enforce otherwise. On the one hand, scholars studying administrative law argue that tribunals expand justice and allow for flexibility in decision making. However, it is necessary to reflect on the harm and shortcomings of regulatory decision makers. To what extent is the belief that administrative law expands the scope of justice a mere fallacy fed to the public to appease frustrations over the inadequacies of the justice system? Justice Abella once famously noted that “without administrative tribunals, the rule of law would fail…Tribunals offer more flexible, swift, and relevant justice.” Perhaps this statement offers some truth. The pandemic may have addressed some of the shortcomings of regulatory agencies. For instance, many people awaiting a decision have transitioned to scheduled online hearings to allow for faster processing times. In addition, more tribunal members were appointed to expedite the decision-making process. However, it cannot be said that these changes have addressed all the shortcomings of the administrative law. Fundamentally, regulatory agencies lack accountability and challenge the rule of law.
For one, members sitting on tribunals lack proper training to make informed decisions. Scholars justify the decision-making authority as being guided by statute. However, it is not difficult to acknowledge that most policy is flawed and, when applied in practice, can have effects counter to its original intent. Most legislative statutes do not account for nuance or circumstantial considerations. Granted, administrative decision makers are empowered to be flexible in their decision-making authority. However, if the decision maker lacks the requisite expertise in their area of authority, then flexibility becomes a mere game of preference and bias. For example, members of the Social Benefits Tribunal (SBT) assess pages upon pages of medical documents to determine whether someone should be granted Ontario Disability Support Program (ODSP). All, if not most, of these individuals empowered to make decisions have no medical experience and base their decision solely on a statute that provides a flawed and incomplete blueprint of factors to consider. Only a medical professional would be capable of comprehending the nuances of the human anatomy to make an informed and fair decision based on a disability claim. Permitting a tribunal member to make a determination based on medical documentation alone, without expertise, is a flawed approach to law. A lack of structure, precedent, and procedure in administrative decision-making, allows bias to corrupt the decision-making process.
These issues are not unique to the SBT tribunal. The pandemic has empowered other regulatory bodies, such as the Ontario College of Physicians and Surgeons, to play a significant policy role in the enforcement of vaccine inoculation. Exemptions for vaccines could be granted by certified physicians without a legitimate reason and based on political preference alone. This finding is a cause for concern as it allows regulatory agencies to circumvent the rule of law and promote personal policy agendas in public health. Unregulated decision making in administrative law imposes severe consequences on the enforcement of fair and equitable justice.
The problem is that most regulatory decision makers are guided by subjectivity. This is perhaps most clearly seen at the Immigration and Refugee Board. An article produced by Audrey Macklin titled “Truth and Consequences: Credibility Determination in the Refugee Context” points to the issues surrounding credibility assessments for refugee claims. In her article, Macklin notes that “credibility is not about discovering the truth.” Rather it consists of making choices on what to believe, consequently resulting in personal values, prejudices and perspectives playing a role in decision making. Law cannot be assumed to be applied equally and in a just manner if it is governed by opinion. Since judicial review is not common, it allows for regulatory agencies to be governed by bias.
In short, deference should not be the default when assessing the validity of regulatory decision makers. Administrative tribunals are too often empowered to make choices that are guided by personal preference. To promote the rule of law, decisions should be subject to greater judicial oversight. Courts should be empowered to review decisions without being criticized for enforcing judicial supremacy. For the law to be fair and just, it must be predictable and subject to critique. While tribunals are a necessary part of the legal system, they cannot be considered equitable if they are shielded from judicial review.