Quebec CA Confirms TAQ Lacks Proper Guarantees of Independence

The Quebec Court of Appeal recently declared inoperative sections 48, 49 and 56(1) of an Act Respecting Administrative Justice as contrary to section 23 of the Quebec Charter of Human Rights and Freedoms, which guarantees the right to an impartial hearing before an independent tribunal. The court, however, granted a suspension of this declaration of invalidity for one year to allow the provincial legislature to comply with the ruling.

The Court of Appeal concluded that the Administrative Tribunal of Quebec (TAQ) was to be granted the highest degree of independence possible for an administrative body. The Court of Appeal concluded, however, that the TAQ is still part of the executive branch of government and therefore is not subject to the broader guarantees of independence found in the preamble of the Constitution, which apply only to courts. However, Mr. Justice Dussault concluded that the guarantees of judicial independence require that the renewal of the mandate of members of the Tribunal be decided by an impartial body free from the influence of the government, which frequently appears as a party before the TAQ and whose interests are often at stake, and free also from the influence of the president of the Tribunal.

The Court of Appeal was also of the opinion that it is improper to make use of annual performance evaluations of the Tribunal’s members to set their salary, for these evaluations could potentially be used as a means to influence the decision maker and ultimately the way in which they render their decision.

Michel Décary, Q.C., and Patrick Girard of Stikeman Elliott represented the Association of the Members of the Administrative Tribunal of Quebec. Counsel for the Bar of Montréal were Simon Venne and Marie Paré of Sébastien Venne Lachance. The Bar of Québec was represented by Raymond Doray of Lavery, de Billy. Representing the Provincial Crown was Jean-Yves Bernard of the Department of Justice.