Resolving Disputes to which the Government is a Party: Exploring ADR and Administrative Disputes Involving the Government of Canada
Michael O’Keefe, 3L, Senior Editor
Introduction
There has been an undeniable shift in the Canadian legal landscape, as well as in numerous comparable jurisdictions around the world, towards encouraging parties to disputes to pursue alternative dispute resolution (ADR) outside of the courts. While the federal government and the Canadian judiciary have endorsed such a shift for private parties to contract and tort disputes, the federal government must also continue to improve access to justice by investing in ADR mechanisms that can effectively and efficiently resolve administrative disputes to which it is a party. Federal administrative disputes touch on a broad cross-section of Canadian life, including issues of Aboriginal law, intellectual property, national security, and citizenship, immigration, and refugee law.
While arbitration has not always been successful in resolving disputes involving governments, the development and proliferation of conciliation, mediation, and, more recently, progressive negotiation and synergistic resolution reveal opportunities for the federal government to more effectively and efficiently resolve administrative disputes.[1] The federal government is, of course, party to numerous disputes with myriad individuals and entities, including employees and independent contractors, domestic and international private sector corporations, provincial, international, and Indigenous governments, and non-governmental organizations, among others. The benefits that ADR affords parties to administrative disputes mirror the benefits that ADR affords purely private disputants. Private sector companies increasingly value the option to include ADR provisions in their contracts with governments because ADR is more informal, inexpensive, and expeditious than litigation.[2]
In this article, I will first present an overview of the federal government’s current ADR architecture. I will then discuss European perspectives on using ADR in administrative contexts to reveal how administrative disputes involving citizens, immigrants, and other claimants raise unique democratic and constitutional considerations that challenge the appropriateness of using ADR to resolve such disputes. Therefore, this article will begin to illuminate the advantages and disadvantages of further developing and using ADR mechanisms to resolve administrative disputes to which the federal government is a party.
I would be remiss if I did not acknowledge that many of the ADR mechanisms historically used by the federal government to resolve claims made by Indigenous people cannot provide a meaningful alternative to litigation because they do not challenge the prevailing theory of justice that underpins the Canadian justice system.[3] While a more fulsome discussion of Indigenous dispute resolution knowledge and traditions is beyond the scope of this article, any effort to expand the use of ADR to resolve administrative disputes involving the federal government must be made in collaboration with Indigenous peoples.
ADR is a fixture of Canadian administrative disputes, but the federal government can expand its ADR architecture further
While the federal government has assigned a broad mandate to the Department of Justice’s Law Practice Management Division (LPMD) to facilitate the use of ADR across the federal government’s legal services and has developed a Policy on Dispute Prevention and Resolution, it has not developed a general statutory scheme governing the use of ADR across the federal public sector.
Within the federal executive branch, responsibility for dispute prevention and resolution (DPR) is housed in the LPMD, which describes itself as “a leading centre of dispute prevention and resolution excellence.”[4] The LPMD provides legal advice and practical guidance on all aspects of DPR to the federal government. The LPMD develops polices on the use of DPR to resolve disputes involving the federal government, and it also conducts research and develops DPR resources for both the Department of Justice and the public. Finally, the LPMD develops and provides DPR training to Department of Justice officials, as well as other federal government departments and agencies.[5]
With the Department of Justice’s LPMD in mind, the federal government’s Policy on Dispute Prevention and Resolution was developed to ensure all officials “make every effort to prevent disputes from arising and, where they do arise, to use the DPR processes as appropriate in order to minimize, to the extent possible, recourse to court proceedings as the only avenue for dispute resolution.” This policy acknowledges that while litigation may sometimes be the best forum for dispute resolution, effective DPR ensures all options are considered before resorting to the courts. Ultimately, this policy affirms that DPR is consistent with the principles of the Department of Justice’s mission statement, which include access to justice and the efficient administration of justice.[6]
Given the increasing expense, delay, and publicity of litigation, interest in expanding the use of ADR to resolve administrative disputes has grown. Interestingly, legal scholar Michael Crommelin queries whether the mediation and arbitration mechanisms found in international trade agreements can be applied to broader issues of governmental authority. For example, the dispute resolution process stipulated by Chapter Twenty of the North American Free Trade Agreement (NAFTA, now CUSMA) is comprised of three escalating stages: consultation between parties; mediation governed by the Free Trade Commission; and non-binding arbitration, following which the parties have thirty days to resolve the dispute through an agreement in accordance with the arbitral panel’s findings. Such ADR mechanisms could allow governments to retain more control over contentious disputes than litigation.[7]
Beyond the LPMD’s mandate and the federal government’s Policy on Dispute Prevention and Resolution, the only piece of federal general legislation dealing explicitly with ADR is the Commercial Arbitration Act,[8] which is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Arbitration.[9] While an UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation also exists, there is no federal general legislation governing non-arbitration ADR mechanisms in Canada—mechanisms perhaps better suited to ADR both within and involving the federal government.[10]
Why did the federal government enact federal general legislation for commercial arbitration but not for non-arbitration ADR mechanisms, including mediation? In contrast, the United States enacted its ADR Act to encourage the use of more efficient and less costly ADR mechanisms to resolve disputes involving federal government agencies. Robin Evans argues that when the ADR Act was first enacted in the United States, governments were far behind private businesses, lawyers, and courts in their understanding of the benefits of more consensus-based ADR mechanisms like mediation.[11] While the benefits of enacting federal general legislation above and beyond the federal government’s existing ADR architecture have not been clearly demonstrated, federalism may be one reason why Canada has not moved in this direction.
Despite the challenges posed by the federal distribution of powers, mediation has become an important component of ADR in Canadian administrative contexts. In Canada, the federal government only has the competence to regulate ADR, including mediation, for matters intra vires the federal parliament. As mentioned, the federal government has not passed a general mediation act that defines mediation such that it is distinguished from other ADR mechanisms or stipulates general structures for mediation that could be applied to various dispute resolution scenarios. Despite the lack of federal general legislation governing mediation, the federal government has included mediation in numerous statutes as an alternative to more costly and time-consuming litigation. Provincial governments have taken similar steps.[12]
In addition to any limits imposed by the distribution of powers on mediations involving governments in federal systems, there are more fundamental concerns with using ADR to resolve administrative disputes. Drawing on European perspectives on ADR, I will now explore these concerns.
The use of ADR to resolve administrative disputes raises concerns and opportunities
On using ADR to resolve administrative disputes, Patrick Birkinshaw argues that the inability of judicial and political processes to adequately resolve the “multiplicity of grievances generated by an interventionist state” is well understood. The question remains whether ADR, when compared to court procedures, can more adequately address grievances in administrative contexts.[13]
Pieter Goes argues that the use of ADR in administrative disputes is expanding. He attributes this trend to the increasingly bilateral relationship between government and citizen, which he characterizes as a relationship of reciprocity and dialogue. This characterization seems at odds with the inherent imbalance of power between government and citizen, an imbalance present in the tribunal and judicial review processes that feature prominently in Canadian administrative dispute resolution. In defence of his characterization, however, Goes argues that the advantages of using ADR to resolve disputes between private parties are even more significant in administrative contexts. ADR affords parties, including governments, the opportunity to consider each dispute in a broader context than dictated by the facts alone. Moreover, Goes argues that using ADR to resolve administrative disputes through “mutual agreement and dialogue” will result in a more stable relationship between a government and its citizens, which may positively influence relationships and dispute resolution in society more broadly. Importantly, however, the efficacy of ADR in administrative contexts could be hindered by the public law institutions and procedures in a given jurisdiction. For ADR to be successful in administrative contexts, governments must exercise the political capital necessary to overcome any institutional and procedural barriers.[14]
Dacian Dragos and Bogdana Neamtu similarly argue that ADR has the potential to resolve administrative disputes in a way that brings government administration closer to the public than court procedures, but that mediation is an underdeveloped mechanism and could infringe on the core principles of administrative procedures, including legality and accountability.[15]
In the context of the United Kingdom, Lord Mackay has analyzed whether three different systems of mediation could be adopted by existing court systems in administrative contexts. First, he considers mediation in which lawyers would advise parties to a dispute on the relative strength of their arguments, which he argues would merely duplicate a system of dispute resolution available in existing courts. Second, he considers mediation in which judges would adopt the role of mediators, which he argues could undermine the impartiality of the judiciary. Third, he considers an approach to mediation that broadens the issues in disputes beyond their legal contexts and explores solutions not available to the courts. Lord Mackay views the third system of mediation as most favourable.[16]
Regardless of the mediation system selected, David Marrani and Youseph Farah argue that the goal of public law is to help organize society such that “the individual is normatively acknowledged, structurally advantaged, and institutionally protected.” Therefore, the main issue here is whether using ADR to resolve administrative disputes can constitute good administration. There is significant evidence that ADR can advance proportionate dispute resolution in administrative contexts. However, the question remains whether ADR can facilitate the constitutional values of administrative justice, including openness, fairness, and impartiality. Marrani and Farah argue that ADR can achieve a balance between proportionate dispute resolution and administrative justice if all ADR mechanisms are complementary to one another. While they suggest that internal appeals combined with the public ombudsman system could support proportionality and facilitate constitutional values—it would be highly visible, less confidential, and statutorily organized to optimize the goals of public law—they argue that mediation seems to support proportionality, but may not facilitate constitutional values. [17] The values of openness, fairness, and impartiality ultimately facilitate trust between the disputants and a third party tasked with both evaluating the dispute in its full context and suggesting an appropriate settlement.[18] This reality necessitates the development of mediation-like systems of dispute resolution designed particularly for the resolution of administrative disputes involving the federal government.
Critically, mediation may be inherently unable to facilitate constitutional values in the context of administrative dispute resolution for several reasons. First, mediation is often a confidential process: all evidence and documents cannot be subsequently used in a court action, thereby potentially obstructing the accountability of public administrative bodies to members of the public. As Marrani and Farah argue, “[g]iven the seriousness of maladministration, it is a citizenship right to seek transparency in relation to the operation of governance.” They argue that good public administration may be best served by a visible dispute resolution mechanism that is accountable to the rule of law, unlike the confidential and private nature of mediation. The mediation of administrative disputes could additionally compromise equality by rendering very different outcomes in materially similar disputes. Finally, the mediation of administrative disputes has been criticized for endeavouring to reach a settlement at the expense of reaching a just settlement. Marrani and Farah argue that all ADR mechanisms must make “justice a paramount consideration; otherwise, they will fail to perform the fundamental function of administrative justice.”[19]
Notwithstanding the risks to citizen equality and government accountability posed by using mediation to resolve administrative disputes, the benefits of mediation also apply to administrative contexts. Mediation is more informal and autonomous, and therefore less adversarial, than other ADR mechanisms. The mediation of administrative disputes can reduce the cost of dispute resolution and reach resolutions more quickly than litigation, while also reducing the caseload before administrative courts. Furthermore, mediation can expand and improve the range of remedies and solutions available to parties by facilitating apology, a promise to reform, and by awarding damages. Nevertheless, one principal difference between the mediation of private disputes and the mediation of administrative disputes is the willingness and desire of the parties to preserve their prior relationship. The non-adversarial nature of mediation can increase the likelihood that parties to a dispute will maintain their relationship following dispute resolution. However, Marrani and Farah argue that the power imbalance between a government and an individual or company in an administrative dispute means that the claimant will likely not be concerned with preserving their relationship with the public administrator.[20] This assertion sits in contrast with Goes’ aforementioned assertion that there is an increasingly bilateral relationship between government and citizen, which he characterizes as a relationship of reciprocity and dialogue.[21]
Using ADR to resolve administrative disputes is critical to ensuring access to justice
The federal government’s ADR architecture—the LPMD and the Policy on Dispute Prevention and Resolution underpinning it—reveals the federal government’s seriousness about using ADR to resolve administrative disputes to which it is a party. However, there is no federal general legislation encouraging the development and implementation of non-arbitration ADR mechanisms, including mediation, across federal government departments and agencies. An overview of European perspectives on ADR in administrative contexts reveals that some of the benefits that mediation affords parties to private disputes, including cost-effectiveness and expedience, extend to administrative contexts. That said, mediation may not serve the constitutional values of administrative justice, including openness, fairness, and impartiality inherent in administrative disputes between a government and an individual or other non-government entity. Finally, although beyond the scope of this article, the federal government has not yet developed a deep enough understanding of Indigenous dispute resolution knowledge or traditions to meaningfully incorporate them into its ADR architecture. Such an awareness is critical to developing and implementing ADR mechanisms that are effective, efficient, and less costly, as well as consistent with the Canadian constitution’s commitment to equal justice and the protection of Aboriginal rights.
The further development and implementation of non-binding ADR mechanisms to resolve administrative disputes involving the federal government is not without its challenges. That said, innovation in dispute prevention and resolution remains critical if Canada is to more adequately fulfill its promise of equal justice for all.
[1] Allen Green & Deneice Jordan-Walker, “Alternative Dispute Resolution in International Government Contracting” (1987) 20:3 Geo Wash Intl L Rev 419 at 444.
[2] Farouq Al-Shibli, “The Role and the Effect of Alternative Dispute Resolution Mechanisms (Mediation and Arbitration) in Administrative Contracts: A Comparative Study between the United Kingdom and Jordan” (PhD Dissertation, University of Manchester ProQuest Dissertations Publishing, 2015) at 1.
[3] Jennifer Llewyn, “Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR, and Restorative Justice” (2002) 52:3 UTLJ 253 at 253-254.
[4] Department of Justice, “Dispute Prevention and Resolution” (last modified 5 August 2021), online: https://www.justice.gc.ca/eng/abt-apd/dprs-sprd/index.html.
[5] Ibid.
[6] Department of Justice, “Policy on Dispute Prevention and Resolution” (last modified 5 August 2021), online: https://www.justice.gc.ca/eng/abt-apd/dprs-sprd/policies.html.
[7] Michael Crommelin, “Dispute Resolution in Federal Systems” (2001) 53:167 Intl Soc Science J 139 at 142-143.
[8] Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp).
[9] United Nations Commission On International Trade Law, “UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006,” online: https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration.
[10] United Nations Commission On International Trade Law, “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018,” online: https://uncitral.un.org/en/texts/mediation/modellaw/commercial_conciliation.
[11] Robin Evans, “The Administrative Dispute Resolution Act of 1996: Improving Federal Agency Use of Alternative Dispute Resolution Processes” (1998) 50:1 Admin Law Rev 217 at 233.
[12] Reinhard Ellger, “Mediation in Canada: One Goal—Different Approaches to Mediation in a State with Federal and Provincial Jurisdictions” in Klaus Hopt and Felix Steffek, eds, Mediation: Principles and Regulation in Comparative Perspective (Oxford: Oxford University Press, 2012) 910 at 911-912, 916.
[13] Patrick Birkinshaw, “Complaints Mechanisms in Administrative Law: Recent Developments” in Karl Mackie, ed, A Handbook of Dispute Resolution: ADR in Action (London: Routledge, 1991) 43 at 64.
[14] Pieter Goes, “Legal Framework relating to Alternative Dispute Resolution in Belgian Public Law” (2014) 12:3 Central European Pub Administration Rev 143 at 157-158.
[15] Dacian Dragos and Bogdana Neamtu, “From the Editors: The Story of a Comparative Interdisciplinary Research Project” in Dacian Dragos and Bogdana Neamtu, eds, Alternative Dispute Resolution in European Administrative Law (Berlin, Heidelberg: Springer, 2014) v at v.
[16] David Kelly, “Arbitration, Tribunal Adjudication and Alternative Dispute Resolution” in Gary Slapper and David Kelly, eds, The English Legal System, 12th ed (London: Routledge, 2011) 543 at 545.
[17] David Marrani and Youseph Farah, “ADR in the Administrative Law: A Perspective from the United Kingdom” in Dacian Dragos and Bogdana Neamtu, eds, Alternative Dispute Resolution in European Administrative Law (Berlin, Heidelberg: Springer, 2014) 259 at 275-276.
[18] Ibid at 270-272.
[19] Ibid.
[20] Ibid.
[21] Goes, supra note 14 at 157-158.