Active Adjudication – Overview of Benefits and Limitations
Tribunal Excellence Committee, May 18, 2023
Zine Ghediri (Member, Veterans Review and Appeal Board)
(Note: Zine Ghediri is a member of the Veterans Review and Appeal Board [VRAB]. The views expressed in this article are not necessarily those of the Tribunal or VRAB).
In Canada, administrative tribunals play a critical role in resolving disputes and making decisions in a wide range of legal and policy areas. These tribunals are specialized bodies established by federal or provincial governments to provide an alternative to traditional court proceedings, offering a more flexible, efficient, and accessible means of dispute resolution. The active adjudication process used by these tribunals is designed to ensure that parties have a fair and impartial hearing, and that decisions are made in a timely and efficient manner. This article will provide an overview of the active adjudication process used in Canadian administrative tribunals, including its benefits and limitations.
What is Active Adjudication?
Active adjudication is a process that belongs to the adversarial trial model with some features of the inquisitorial trial model through which Canadian administrative tribunals ensure that either party has meaningful access to the adjudicative process by playing a greater role in managing the hearing. This includes, for example, as Professor Michelle Flaherty points out, explaining the procedural steps, raising jurisdictional or constitutional issues and applying the rules of evidence or procedure with some latitude.
Benefits of Active Adjudication
There are several benefits to using active adjudication in Canadian administrative tribunals. One of the primary benefits is that it is often a more efficient process than traditional court proceedings. Tribunals are typically less formal than courts, and their processes are designed to be more flexible and responsive to the needs of the parties involved. This can result in faster resolution of disputes and more timely decision-making.
The other main advantage of active adjudication is that it can be more accessible to the parties involved, particularly unrepresented parties who sometimes cannot be part of the administrative process without the active intervention of the adjudicator. Indeed, the cost of hiring a lawyer and taking legal action can be prohibitive for many individuals and small businesses. Administrative Tribunals offer a more affordable means of dispute resolution, and the active adjudication process is often designed to make administrative justice accessible to individuals who are not represented by an attorney.
Active adjudication also allows for a more specialized approach to decision-making. Because administrative tribunals are often established to deal with specific areas of law or policy, they are staffed by experts in those areas. This allows for more informed decision-making and can lead to better outcomes for the parties involved.
Limitations of Active Adjudication
While active adjudication has many benefits, there are also limitations to its use in Canadian administrative tribunals. One of the main limitations is that excessive active adjudication may be perceived as an impartial intervention by the administrative tribunals, which leads that decisions made by those tribunals are often subject to appeal to higher courts. This will have an opposite effect in terms of processing time of cases and will result in additional costs for litigants.
Le Juge Peter D. lauwers s’est exprimé à ce propos dans l’affaire Grand River Conservation Authority v Ramdas en indiquant ce qui suit :
“It is also open to a judge to engage in active adjudication in order to obtain relevant
evidence from a self-represented party who might not fully understand what is
relevant and what is not. That said, the principle of impartiality constrains a judge’s
obligation to help make the judicial process accessible to self-represented parties.
A judge must not cross the line between assisting self-represented litigants in the
presentation of their evidence and becoming their advocate“.
Another limitation of active adjudication is that it may not be appropriate for all types of disputes. Some disputes may require a more formal and structured approach, such as those involving complex legal issues or large sums of money, or where the parties are adequately represented by counsel.
Active adjudication is a critical process used by Canadian administrative tribunals to make decisions and resolve disputes in specific areas of law or policy. While it has many benefits, such as being a more efficient and accessible means of dispute resolution, there are also limitations to its use. As administrative tribunals continue to evolve and adapt to changing legal and social landscapes, it is likely that the use of active adjudication will continue to play an important role in Canadian law and policy.
There is an element of subjectivity in the selection of the sources. There is likely case law, articles, best practices and policies I have missed. If you think there is a resource that should be included, please let me know by sending a message to CCAT at: firstname.lastname@example.org