Canada has over 400 administrative tribunals that are probably the least understood government entity.
Today administrative tribunals deliver a more accessible and expeditious form of justice than the courts while applying the law and principles of procedural fairness with no less rigour. From labour relations to securities regulations to parole decisions, administrative tribunals adjudicate wide-ranging issues that affect rights, privileges and interests.
Administrative tribunals not only share a degree of institutional independence in how they decide cases, but they also share the challenge of measuring accountability in light of this independence. Like all government departments, they measure and report standard outputs, such as costs, cases completed and processing times. But these quantitative measures reveal a partial picture at best of tribunal performance. Widely lacking are performance indicators of quality.
In many public sector organizations, notions of quality are expressed in service standards, such as client satisfaction or accuracy of benefit payments. However, in the context of an administrative tribunal where the key output is a quasi-judicial decision following a hearing of the evidence, how does one begin to define quality, let alone measure it?
To complicate matters, many tribunal decision-makers enjoy a high degree of adjudicative independence. As such, performance measurement must avoid impinging on their decision-making function. Evidence in a case is often open to subjective interpretation. The same evidence can legitimately support a decision either for or against the parties involved as long as the reasoning provided in the decision is sound.
So if you’re denied an objective determinant of quality, then how do you measure it? A new approach pioneered at the Immigration and Refugee Board of Canada (IRB) zeroes in on process as a proxy for quality. In developing this approach, the IRB mapped out the key elements in the tribunal’s workflow and developed assessment criteria for each stage in the process, always taking care to respect adjudicative independence.
The first of these stages consists of pre-hearing preparations. It is vital that decision-makers receive complete and well-organized case files at the earliest opportunity in the adjudicative process. Lack of preparation or a deficient case file can seriously impair a decision-maker’s ability to conduct a proceeding or to arrive at a timely decision. Performance indicators at this stage include integrity of the case file and the decision-maker’s level of preparedness at the start of the proceeding.
The next stage is the hearing itself. All individuals have a right to a fair hearing, meaning they have a right to know and respond to the case against them, and to present their own case before an impartial decision-maker. Any shortcoming in this regard could undermine tribunal integrity. Hearings also run better when they are managed efficiently and all participants understand their roles. Performance indicators here include treating individuals with sensitivity and respect, and narrowing the issues whenever appropriate to focus the hearing.
The final stage relates to the formulation of the reasons for decision. The reasons for decision must be timely and, as the Supreme Court of Canada has outlined, justifiable, intelligible and transparent. Persons with a pending case before the IRB live with uncertainty regarding their immigration or refugee status in Canada. They rightly expect a timely decision that plainly explains the decision-maker’s conclusions and the evidence relied on. Performance indicators here include the use of plain language and whether the decision-maker addressed all the key issues they had identified earlier in the case.
The IRB’s methodology combines a file review and aural observation of the recorded proceeding. Qualitative data from a sampling of cases are analyzed against a checklist of some 30 performance indicators and two ordinal scales, depending on the variable measured. All results are aggregated and stripped of identifying information to protect participants’ privacy, as the initiative assesses only tribunal performance, not individual performance.
When combined with traditional quantitative data, quality measures produce a more holistic picture of tribunal outcomes to support continuous improvement and public accountability. To date, the IRB has fielded calls from tribunals and international organizations in Canada, the United States and Europe interested in adapting this methodology for themselves.