COMMERCIAL APPEALS COMMISSION

 

Chair’s Report

 

July 2001

 


 

INTRODUCTION

This report provides an overview of the nature and jurisdiction, process, membership, administration and activities of the Commercial Appeals Commission (CAC) for the period May 3, 1999 to June 30, 2001.

The commission is part of the administration of government and is established by statute to formally hear and decide appeals from those who are affected by the decisions of many different government branches and bodies. The mandate of the commission is to serve the public interest by hearing and deciding appeals that are properly before them fairly and efficiently on the basis of the evidence before them and a proper interpretation of the law. Inherent in the mandate are included the requirements that:

The CAC is established by the Commercial Appeals Commission Act, R.S.B.C. 1996 c. 54 (CAC Act), which provides that the chair and members may be appointed by the Lieutenant Governor in Council for fixed terms not exceeding five years. The CAC Act also provides that the commission may have staff appointed to assist it. The appointments have been for fixed terms.

The commission is independent of the branches and bodies whose decisions are appealed to it and operates independently of the ministry. There is no requirement  to report to the government on its decisions, and the budget of the tribunal, while delegated by the ministry, formerly the Ministry of the Attorney General, now the Solicitor General, is controlled by the chair of the tribunal.

The independence of the Liquor Appeal Board (http://www.lab.bc.ca/) and, by implication, each of the other two boards, the Commercial Appeals Commission and the Motion Picture Appeal Board (http://www.mpab.bc.ca/), was challenged in 1999 in an appeal of a decision of the Liquor Appeal Board to the Court of Appeal in Ocean Port Hotel v. General Manager Liquor Control and Licensing Branch. The Court of Appeal quashed the decision of the board, which was to confirm a licence suspension, holding that the board lacked the necessary degree of independence to decide matters of such weight given the nature of the members’ appointments to the board. The Supreme Court of Canada allowed an appeal of the decision, and the reasons of the Supreme Court are pending. In the meantime a stay by the Court of Appeal of its own decision has allowed the Liquor Appeal Board to continue to hear other cases. In a second appeal by the same appellant to which the stay did not apply, the Liquor Appeal Board decided that notwithstanding the Court of Appeal’s holding in Ocean Port, the board was bound by its enabling statute to hear and decide appeals.

The three tribunals operate from the same office, sharing administrative support services and resources and hearing room. On April 9, 1992 the three tribunals were consolidated with one administrative structure with the same chair, Wallace I. Auerbach, who chaired the tribunals until April 30, 1999. On May 3, 1999, the role of chair was divided: Jessie Horner was appointed chair of the CAC and LAB and Miriam Gropper, Q.C. was appointed chair of the MPAB. Candace Parker and Kirk Olearnek served respectively as chairs of the MPAB from May 3, 2000 to January 31, 2001 and February 1, 2001 to May 2, 2001. On May 3, 2001, Jessie Horner was appointed the chair of the MPAB and the administrative structure of the three tribunals was once again consolidated.

 

 

THE COMMERCIAL APPEALS COMMISSION

Jurisdiction of the CAC

The commission may hear appeals under the statutes set out below, which are enacted to supervise and regulate several different occupations and industries for the protection of the public. Many of the appeals filed involve the ability of individuals to work in their chosen occupation.

 

The nature of appeals to the CAC and powers of the CAC

Appeals to the CAC are conducted along the lines of a court proceeding but with greater informality than would be permitted in a court. For example, while parties who call evidence are generally expected to put all their evidence in together, this rule may be relaxed to ensure that parties are able to make their case, especially where an appellant is not represented by counsel.

The CAC Act provides that the commission has the same powers of decision as the official whose decision is under appeal. The commission may confirm, vary or reverse the decision, with or without conditions or refer it back to the official with or without directions.

The decisions made by the commission often turn on legal issues and the proper interpretation of the statute in question or other relevant law. The commission has considered arguments based on the Charter of Rights and Freedoms. Panels are also required to consider and weigh evidence to make findings of fact. In this regard, the commission has the power to issue subpoenas and receive additional evidence offered by either side in an appeal, as well as to retain and call its own expert witness. By virtue of its substitutional discretion, the commission is generally able to cure any defects in procedural fairness that may have contributed to the decision under appeal. Thus, errors in respect to fairness can be resolved at the commission level and do not have to be returned to the initial decision-maker to be done fairly.

The CAC Act provides for an automatic stay of the decision appealed from, although the commission may vacate the stay, impose conditions on it or make such other interim order as the commission finds necessary. (The automatic stay does not apply in appeals under the Financial Institutions Act, Consumer Protection Act and certain decisions made by the Superintendent of Real Estate under the Real Estate Act and the Director of Trade Practices under the Trade Practice Act.)

As was noted in the Chair’s Report by Mr. Auerbach in April 1999, there continues to be a number of preliminary matters raised in many appeals that govern the conduct and hearing and often the ultimate outcome of the appeal.

 

The CAC appeal process

Although the CAC Act provides for the making of regulations, none have been made under it. The procedures used by the commission are found in the statute and in the Practice Memorandum issued by the chair. There is no fee payable by an appellant who appeals to the commission. There is no power to make an order as to the costs of an appeal.

Appeals are heard by panels of three members of the commission, appointed to the panel by the chair. An appeal may be heard orally or by written submission.

Oral hearings are open to the public and decisions are available to the public although the commission has the power to order otherwise where it may be prejudicial to a party or witness. Material from an appeal file may be provided to a member of the public, but only where it complies with the Freedom of Information and Protection of Privacy Act.

 

Time between filing an appeal and hearing

The length of time taken to set down a hearing depends to some extent on the representations of the appellant and the decision-maker whose decision is under appeal. The CAC Act requires the respondent, the officer whose decision has been appealed to the commission, to provide a record of the evidence considered by the respondent in reaching the decision and the record generally provides part of the evidence that the commission considers in deciding an appeal. The respondent is allowed a period of 30 days within which to file the record and provide a copy to the appellant. Upon receipt of the record, commission staff contacts the parties to determine a suitable date for the hearing. In order to provide the parties a period of preparation and to comply with the requirement that each party file a statement of points that summarizes facts to be proven and arguments to be made at the hearing, at least a month will be allowed before the date selected, unless there is a reason to do otherwise.

The Financial Institutions Act and the Real Estate Act allow the superintendents to make summary decisions without hearing from the person affected. Where the person affected appeals the decision to the CAC, the person has the option of demanding that the appeal commence within 21 days. The commission has complied with this statutory requirement, although in one such appeal, which was also a long appeal, while the hearing was commenced within 21 days, it was adjourned at the request of the respondent for a period of almost two months.

For appeals filed in 2000-01, the shortest time between filing an appeal and oral hearing was 17 days. The longest time was 8.3 months. The average length of time between filing and oral hearing for appeals filed in 2000-2001 was 4.3 months.

Hearings have been adjourned for many reasons including illness, to await the conclusion of criminal proceedings or an appeal of a preliminary decision of the commission to the Court of Appeal, because an appellant’s counsel has been unable to be present, and because an appellant has been called to jury duty.

 

Decisions

Although the commission is not required by statute to give reasons unless requested, the commission issues written reasons in all decisions. Every effort is made to have decisions issued within a month of the hearing. However, decisions have been delayed longer, not generally more than three months, for several reasons. Sometimes, the panel requires additional time to deliberate and review lengthy and complex materials and evidence. The decision that is drafted must also be circulated to other panel members for their review. For those appeals filed in 2000-01 the shortest period between the filing of an appeal and the decision and reasons has been 27 days. The longest period has been nine months. The average has been 5.4 months, on average, just over a month from the date of the hearing.

The commission’s decisions are written to explain the decision for the benefit of the parties and the public as well as for the benefit of consistency in decision-making. Of 14 decisions in appeals filed in the year 2000-01, the shortest decision was five pages and the longest 13. The average length was eight pages.

Appeals from a decision of the CAC are to the Court of Appeal, with leave of a justice of the Court of Appeal. Of the decisions of appeals filed in 2000-01, we have been notified that appeals to the Court of Appeal have or may be filed in three cases.

 

Membership of the CAC

There are presently 12 members of the commission, including the chair, although one person is unable to serve due to her other obligations, and will be resigning. All members are appointed by order-in-council, and all members have been appointed according to Treasury Board guidelines, that is for a term of one year, renewable by a term of two years, renewable by a term of three years, generally to a maximum of six years in total. In 1999 and 2000, most members completed their service and thus there was significant turnover in membership beginning in 1999 and more recently. All present members are in their first or second appointment except the chair. The chair was first appointed a member in 1994. She is in her second appointment as chair. See appendix I for a history of the present appointments to the CAC.

All members, including the chair, are engaged in other occupations and serve only as required. The nature of the appeals to the CAC requires that some members have expertise in law, particularly regulatory and administrative law, litigation, property, contract and commercial law. Experience in community matters and business is also an asset, complementary to the legal expertise of the board. Seven members are lawyers, some of whom are in active practice. Three members have past experience with administrative tribunals. All members have a broad and diverse background, many with considerable other community service. Although the Lieutenant Governor in Council makes the appointments, the chair has contributed to discussions about the qualifications necessary for individual members and for the commission as a whole.

The combination of legally trained members and lay members has been beneficial for several reasons. Legal expertise is required, as often decisions will turn on quite complex legal issues. Lay members add breadth and depth to panels. By having a diversity of training and experience in the members of a panel, the decisions that are reached should be well grounded and reflect a broad view of the public interest. Decisions are more likely to be expressed in ways that make sense to the ordinary person, who might be directly or indirectly impacted by the decision. Panels are more likely to appreciate and address the difficulties that might be experienced by people who represent themselves in the hearing of an appeal.

In order to ensure that hearings are scheduled in a timely way, it is necessary to have a fairly large number of members, given that members are engaged in other occupations. It is critically necessary that some members can accommodate the requirements of longer hearings. Members of the commission must be quite flexible in their availability and the length of time for which they are available to ensure that the commissionl can meet its duties.

Training and orientation of members is achieved through:

Each member is encouraged to join the British Columbia Council of Administrative Tribunals. One member has also enrolled in the Advance Decision-writing Workshop.

Given the fairly large number of members and the relatively few number of appeals in which a member is able to participate, it can be some time before a member has very much experience with the tribunal, and thus the orientation to the CAC may be longer than some other tribunals where new members can be quickly acclimatised.

The chair and members are paid a per diem and expenses for their time when they are engaged in the business of the tribunal, according to Treasury Board directives for group II appointments.

 

Appeal Activities of the CAC

See appendix III for a detailed break down of the appeal activities of the CAC for the last quarter and the last two fiscal years. These are accompanied by some statistics for the five preceding years, for the sake of identifying trends.

It can be seen that the number of appeals to the commission fluctuated considerably over the last seven years, ranging from 39 appeals to 14. For the years 99-00 and 00-01 the number of appeals has, however, approximated the seven-year average of 25 appeals filed per year, at 22 and 27 appeals respectively. In the first quarter of the current fiscal year, however, the number of appeals shows a sharp decline at three appeals.

The greatest number of appeals filed are consistently under the Real Estate Act, and this has been true of the years 99-00 and 00-01. Appeals are next most frequently brought under the Financial Institutions Act.

The number of oral hearing days in 00-01 showed a significant increase, which is attributed to one unusually lengthy appeal which accounted for a total of 19 days, including preliminary matters.

 

ADMINISTRATION OF THE COMMISSION

Chair

In addition to presiding at many of the appeals to the commission and writing many of the decisions of the commission, the chair reviews all notices of appeal filed and acknowledges or rejects an appeal, or requires additional information in an appeal. She oversees the efficient and fair management of appeals up to the hearing process, making interim or preliminary orders, deciding stay applications, applications for variations of stays, deciding requests for adjournments, disclosure. She ensures the timely setting of dates for appeals and appoints panels or members to hear appeals.

Building on the precedent established by Mr. Auerbach, and keeping current with legislative changes, revised practice directions for the commission has been prepared and issued by the chair, most recently in April and May, 2001. 

The chair provides training and orientation for members.

The chair is ultimately responsible for the timely issue and communication of the commission’s decisions, although the reasons and decision in an appeal rests with the panel appointed to hear an appeal. To promote consistency in the preparation of decisions, the chair has prepared a style guide for members. The chair adds each decision to the topical index of the commission’s decisions that was started by Mr. Auerbach, the former chair, and new decisions are sent to parties and to those who request them. The topical index and decisions from the last two years are also available on the website.

The chair is also responsible for the budget and expenditures of the commission, management of staff and the office, and communication with the public. The chair has an obligation to bring matters to the attention of the minister where required in the public interest. 

The chair participates as time allows in the Circle of Chairs and the fall conference of the B.C. Council of Administrative Tribunals. She has also attended workshops sponsored by Agencies, Boards and Commissions and the Streamlining Initiative of the Treasury Board.

The most fundamental changes in the functioning of the commission in the period covered by this report have occurred at the level of chair. The differences have been in the move from one full-time chair to two chairs who worked on a part-time basis, as required. Notwithstanding the consolidation of the three tribunals in one chair in May 2001, the chair has continued to be part-time. While it is difficult to gauge the workload of the tribunals and the amount of time that will be required of the chair, as new members have become oriented to the tribunals and assumed presiding and writing duties, the present arrangement is workable.

 

Staff

The commission has two full-time equivalent positions, an administrator,  and an administrative clerk.

The administrator provides leadership with respect to all administrative and organizational tasks to ensure the smooth and efficient operation of the three tribunals; provides support to the chair and members of each tribunal; and provides continuity and orientation to the chair and members of each tribunal.

Shortly after the appointment of new chairs in May, 1999, the tribunals received approval to hire an auxiliary administrative clerk  in order to provide necessary assistance to the administrator, particularly as neither chair was full time as chair and the tribunals had required additional assistance in the past.

New job descriptions have been recently prepared to reflect the division of labour between the administrator and the administrative clerk position.

In terms of staff training, the administrator attended a workshop on the new financial management computer program in 2000. The administrative clerk attended the BCCAT Course on Administrative Justice for Support Staff in June 2001.

 

Offices

The office is located at 910-1125 Howe Street in Vancouver, having relocated from 865 Hornby Street, Vancouver in April 1999. The offices contain a hearing room that can accommodate panels of three and up to 20 members of the public, an office for the chair, workspace for the staff, a meeting room for panels, and two interview rooms for parties to an appeal. The hearing room, meeting and interview rooms are available for other agencies to use.

The decisions of the commission are kept on site for public use. The chair and members have a small library including the B.C. Revised Statutes and Regulations, several texts and loose-leaf services relating to administrative law, the conduct of hearings and diverse legal topics.

An Office Procedures Manual that was started by Mr. Auerbach is revised periodically to keep track of changes in office procedures.

 

Budget

The budget of the three tribunals were, up until 1999, combined. With the separation of the chair of the MPAB from the chair of the CAC and LAB, the budget was apportioned to the three tribunals, at the tribunal level, in amounts that were thought to reflect the expenditures of the three tribunals. The CAC, the tribunal with the largest number of appeals was charged with the operating costs of all three, unless an expenditure could be specifically allocated to a tribunal. Given the flexibility and potential for inaccuracy in the apportionment, and the need for accountability it was determined that the budgets of each tribunal should be specifically delegated to each. With the consolidation of the three tribunals, this has not occurred.

The total budget for the commission is broken down as follows:

Budgeted 00-01 Expended 00-01* Budgeted 99-00 Expended 99-00

CAC 251,000 246,351 192,500 202,500

* Year to date actual expenditures as at March 31, 2001 per Financial Management Report March 31, 2001.

Only some of the costs of the commission are certain, such as rent and maintenance. Other costs may be subject to some fluctuation. The major cost of the commission, however, the expenses paid to members is a product of the number of appeals that are filed and scheduled.

 

Provision of information to the public

Decisions, interim decisions and orders made by the commission and publications of the commission are public documents. They are available at the office, through the website or by mail or fax to anyone who requests them. All decisions are indexed by subject and the updated index is available at the office for use there or purchase and on the internet. The practice memorandum, which contains directions on how to file an appeal, how an appeal is conducted and how to appeal a decision of the tribunal and a draft notice of appeal are available upon request at the office and are also on the internet.

Decisions are also available from Quicklaw, according to the Quicklaw fee.

Routine inquiries from parties and the public are generally handled by staff. Any other inquiries are handled by the chair.

 

PRIORITIES AND PLANS FOR THE FUTURE

The chair will be away for the month of August 2001 and has designated Kirk Olearnek the member of the CAC and MPAB and vice-chair of the LAB to assume responsibilities for the commission in her absence. The calendar for August is busy and September is fully booked with hearings. The appointments of some members will be expiring in the fall, and the chair will advise the minister in regard to these appointments. Staff hiring and the posting of positions will be a priority in the fall, as will improvement and upkeep of the website. A training and orientation session for members of all three tribunals, the Commercial Appeals Commission, the Liquor Appeal Board and the Motion Picture Appeal Board will be held. The tribunals will participate at an information table at the BCCAT conference and individual members will be encouraged to attend. The chair is presently developing a guide to help participants in hearings prepare for the hearing.

 

CONCLUSION

Through a process that is intended to be simple, flexible, fair and expeditious, an appeal to justice by those affected by the decisions of many government officials is made possible through the Commercial Appeals Commission. The composition of the commission and the training and experience of its members promise that decisions will be grounded in the public interest and well reasoned in fact and law. Whether they are can only be determined by reference to the decisions themselves.

The expenditures of the commission have been within budget. Consideration may be given to consolidating other tribunals within the infrastructure of the CAC, or making better use of the commission’s hearing room to achieve better cost-effectiveness for the facilities. While the present administrative structure appears to provide sufficient management for the commission, it is too soon to decide this. If the decline in the number of appeals to LAB and CAC continues and if the increase in the number of appeals to the MPAB does not grow, provided sufficient staffing is obtained the present structure should suffice.

 

 

DATED AT VANCOUVER, B.C.,

Jessie J. Horner

July 27, 2001