Tribunals: The Access to Justice Advantage

Imagine suing the federal government without a lawyer, making your case before a neutral adjudicator, and then getting an enforceable decision, on the merits, less than four months later. This may sound like a far-fetched fantasy if you’re familiar with civil litigation in Canada. In our courts, civil lawsuits routinely take 4-5 years to get to adjudication. Legal fees average about $40k per party to get through a 5-day trial. Self-representation is a frustrating and overwhelming ordeal for most people who try it.

And yet the four month path to adjudication is not just an idle fantasy to ponder while you wait 18 months to get your civil motion heard. It describes the Social Security Tribunal of Canada (SST), a federal tribunal established to hear appeals of government decisions regarding benefits. SST litigants can be represented by lawyers, but 75% of them proceed self-represented, sometimes with help from a friend or family member (which is also allowed). The SST procedure and rules were consciously designed to be accessible. “Navigators” employed by the SST help litigants understand the process and prepare for their hearings for the hearing, at no charge. 95% of individuals who use the SST procedure report that they are satisfied by it. When SST decisions are appealed to higher courts, they are seldom overturned.

The SST is recognized as one of the best-functioning tribunals in Canada. (Ontario’s high-volume provincial tribunals, by contrast, are struggling badly.). But there are many tribunals in Canada that deliver a level of access to justice which courts cannot match. Tribunals, in the words of Madam Justice Rosalie Abella, are “designed to be less cumbersome, less expensive, less formal and less delayed,” which lets them “resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly” than courts would. The best tribunals provide access (quick, cheap, and low-stress procedure). They do so without sacrificing justice (substantively correct rulings, adherence to procedural justice, and a public and transparent process).

What explains the success of best-in-class tribunals in creating access to justice? Obviously, it has something to do with the nature of the cases that they deal with. These tend to be factually and legally simpler than civil court matters are. And yet tribunals also have three key features that distinguish them from courts and allow them to excel in A2J terms:

  1. Each tribunal is specialized and focuses on a particular type of legal dispute. Most courts have generalist jurisdiction. Even if a court is specialized (e.g. family court) the judges are often generalists who rotate in and out. Thus, tribunals can hire or train people who know all about the law and facts that repeatedly arise in a particular class of dispute. They need not all be lawyers. Non-lawyer tribunal members (who bring very valuable perspectives) can learn the law that they need to know because the tribunal’s jurisdiction is limited.
  2. Tribunals take a measure of institutional responsibility for creating access to justice, instead of simply assigning each case to an individual who must do so single-handedly. Many tribunals assign panels of multiple members to hear matters, not only in an appellate or reconsideration hearings but also at first instance. For tribunals — unlike courts — internal deliberations or peer review prior to release of a tribunal decision, involving members who did not themselves participate in hearing it, are permitted in Canadian law. Tribunal members’ performance can be reviewed and measured against benchmarks (e.g. for prompt release of decisions).
  3. Designability is a third feature of tribunals that distinguishes them from courts. Tribunals can be planned and built from the ground up to maximize their performance in delivering access to justice for a particular class of legal dispute. This is much more difficult for courts, which are constitutionally independent and thus beyond the power of government to redesign.

None of this is meant as a criticism of Canada’s courts. They have different strengths, including Canada’s most brilliant legal minds on the Bench as well as constitutional independence from government. Courts are equipped to do things that tribunals cannot. However tribunals have enormous potential to create access to justice for Canadians, and this potential has not yet been fully tapped.