Unjust by Design
Unjust by Design
Canada’s Administrative Justice System
Canadian legislatures regularly assign what are truly court functions to non-court, government tribunals. These executive branch “judicial” tribunals are surrogate courts and together comprise a little-known system of administrative justice that annually makes hundreds of thousands of contentious, life-altering judicial decisions concerning the everyday rights of both individuals and businesses.
This book demonstrates that, except perhaps in Quebec, the executive branch’s administrative justice system is a justice system in name only. Failing to conform to rule-of-law principles or constitutional norms, its judicial tribunals are neither independent nor, in law, impartial and are only providentially competent.
Unjust by Design describes a system in transcendent need of major restructuring. Written by a respected critic, it presents a modern theory of administrative justice fit for that purpose. It also provides detailed blueprints for the changes the author believes would be necessary if justice were to in fact assume its proper role in Canada’s administrative justice system.
This book will provoke a serious debate within the legal profession, the administrative justice system, the executive and legislative branches of government, and perhaps within the public at large about the structures and quality of our administrative justice system – and also about the reforms proposed in this book. For the convenience of those who might wish to contribute to that debate, the author has organized an interactive website, administrativejusticereform.ca, and invites all interested parties to go there and talk to him and each other about these important issues. To facilitate free and frank discussions, the website will be structured to allow participants to elect to have their names held in confidence if they wish to do so.
This book will be of interest to administrative law lawyers, and judges; politicians and bureaucrats; tribunal chairs and tribunal members; and legal scholars, law teachers, and students. It should also be of interest to the general public who may be surprised to learn that their everyday legal rights are more often decided by the flawed judicial tribunals described in this book, than by the courts.
Awards
- 2014, Shortlisted - 2013/2014 Donner Prize, The Donner Foundation
- , Commended - The Hill Times List of Top 100 Best Books for 2013
The issues addressed in Unjust by Design are of critical, though largely unappreciated importance. Ron Ellis faced a significant challenge of persuasion: the tediousness of administrative law is dangerous because it can mask significant injustice ... But precisely because these are the workaday issues of our society, it is critical that they not be ignored and left subject to a decision-making system so bereft of basic elements consistent with the rule of law that their validity is rendered questionable.
Unjust by Design is a provocative, atypical, and passionate call for the improvement of the administrative justice system. It presents a unique perspective on the institutional, administrative context by someone with relevant experience and who presents a very elaborate platform for reform.
This book has the potential to be very influential with any government willing to take on the task of creating an administrative justice regime that meets constitutional imperatives and, more generally, offers Canadians the prospects of a fair and independent regime for the adjudication of matters affecting their rights.
Introduction
1 Defeating the Rule of Law in the Administrative Justice System: Executive Branch Strategies and Tactics
2 Administrative Justice: Getting the Context and Terminology Clear, the Concepts Straight, and the Prescription Right
3 Administrative Judicial Tribunals: The Inside Story
4 Prelude to Reform
5 The Reform Proposal
6 Implementing the Reform Proposal: A Strategy for Change
7 Meanwhile, a Toolkit for Litigators
Notes
Select Bibliography
Index
