Part 1 – Current Performance

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Category 1 – Access to the Administrative Body

Category 1a: General

Q.1 Parties or members of the public may not be able to reach the administrative body during the working hours that government bodies normally use. An administrative body that enables people to speak with a representative outside regular business hours may reasonably balance that against resource constraints.

Q.2 Giving users choice is an access to justice ideal. But it has to be balanced against both cost and the ability of the administrative body to have the final say as to what form a proceeding takes.

Q.3 A hybrid proceeding is one where the administrative body uses more than one form of receiving evidence and submissions within a single proceeding. For example, the proceeding is largely in person, but a witness gives evidence by telephone or video, or in writing.

Q.4 Every administrative body has a duty to accommodate participants under the applicable human rights law in its jurisdiction. This question asks whether the administrative body communicates that duty in a policy that explains how that duty is met in the particular context of the administrative body’s work. This could include setting out the measures the administrative body takes that go beyond its minimum human rights obligations.

See the CCAT Tribunal Policies Repository for examples of policies that explain how different administrative bodies deal with accommodation requests.

Category 1b: Access through Technology

Q.5 This question gets at the idea that the administrative body offers a range of communications options. It does not have to offer all of the options set out in the question to score points; for example, many administrative bodies don’t offer live chat, and TTY is now less commonly used.

Q.6 This question is intended to address the efforts of the administrative body to incorporate plain language and user-centred design in its website. The ideal is to test how navigable and intelligible the website is with users. However, the ideal of user testing may have to be balanced against cost and available expertise.

Q.7 At this time, the most common standard of accessibility for websites is set out in WCAG (Web Content Accessibility Guidelines) 2.0. The higher standard – WCAG 2.2 – is currently the ideal, but is less common.

Q.8 This question gets at the various forms of communication that the administrative body uses on its website. Text-heavy websites are hardest to navigate and are the least accessible. Visual communications, such as infographics, flow charts and videos are easier for people with lower literacy levels.

Q.9 The purpose of this question is to see whether the administrative body is using a data-driven approach and tools that enable it to improve its communication with users. A data-driven approach is one that exploits available data to evaluate the practices of administrative bodies and to improve the quality of administrative justice.

Q.10 Similar to question 9, the best measure of user-centred design is what the users themselves think.

Q.12 This question gets at whether forms are available in an electronic format from the same source. The third option in the answer is meant to recognise that there may be some requests that occur rarely, and so the forms for these rare requests may not be available online.

Q.13 The previous question only asks whether forms are available online. This question is about the extent to which the administrative body enables users to engage with it digitally, not just to fill forms, but to deal with all issues that arise in a proceeding.

Category 1c: Physical access

Q.15 The distance of 100 km as the outer limit that parties need to travel for in-person proceedings is a bit arbitrary, but is meant to reflect the challenges of providing services in rural areas of Canada. A user-centred approach would ensure that no one has to travel more than 100 km to participate in a proceeding.

Category 2: Processes

Category 2a: Procedural Justice

Q.21 Active adjudication is a modification of the traditional adversarial method of conducting proceedings. It involves grafting elements of an inquisitorial process onto the adversarial process, while safeguarding the impartiality of the adjudicator. The purpose of active adjudication is to allow the administrative body to ensure that all parties – whether they are represented or not - can participate meaningfully in proceedings.

In some areas of the law (e.g. refugee determination, workers’ compensation), the use of inquisitorial processes may be mandated by law. If your administrative body is directed by statute or regulation to use an inquisitorial method, then select “n/a”.

Some administrative bodies have no policy on the use of active adjudication and leave it to individual members as a matter of adjudicative independence. Others have a policy which only encourages the use of active adjudication in situations where at least one party is unrepresented, whereas others may use active adjudication even where all parties are represented.

Q.22 Objectivity and impartiality are essential to the conduct of fair proceedings. As long ago as 1976, the Supreme Court of Canada recognised that bias can be conscious or unconscious (Committee for Justice & Liberty v Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394). This is why training on bias needs to include training on implicit or unconscious prejudice.

Q.23 Trauma is both the experience of, and response to, an overwhelmingly negative event or series of events, including violence (Public Health Agency of Canada. Trauma and violence-informed approaches to policy and practice updated February 2, 2020. Online: https://www.canada.ca/en/public-health/services/publications/health-risks-safety/trauma-violence-informed-approaches-policy-practice.html.)

Trauma-informed adjudication recognises that administrative proceedings themselves can revive trauma in people who have experienced it. Training in trauma-informed adjudication enables adjudicators and staff to anticipate the risks of retraumatizing participants through the process, and to take steps to avoid that happening.

Q.25 Giving parties choice about how to resolve their dispute (e.g. opting into mediation) is an important aspect of user-centred design. However, the administrative body may have made a policy choice to require parties to go through certain dispute resolution steps before there is a formal adjudication. For example, it may decide to make mediation mandatory. If there is a valid policy reason for not offering choice to parties, then select “n/a”.

Q.26 Public accountability includes having a complaint process about how the administrative body provides its services. The complaint process should not be used by parties to challenge the substance of the body’s decisions. This is properly done through judicial review or statutory appeal. Ideally, the administrative body makes the results of the complaints process public. This can be done through redacted summaries of complaints posted on the body's website.

See the CCAT Tribunal Policies Repository (Ethics tab) for examples of complaint policies.

Q.27 If an administrative body does not provide interpretation services in languages other than English and French, it risks creating a two-tier justice system. This poses a reputational risk, and it also may pose a legal risk as a violation of s.14 of the Charter of Rights and Freedoms (see R. v. Tran, 1994 CanLII 56 (SCC),at paragraph 73).

Q.28 There is more to an evidence-based approach to administrative justice than just measuring user satisfaction. However, asking users about their experience is essential to making user-centred design changes. User satisfaction surveys have to be approached carefully in order to be able to separate out positive or negative results in dispute resolution from the actual user perspective on the quality of services. One way to do this is to measure user satisfaction systematically and regularly. This is because a systematic approach gives the administrative body baseline data that it can then assess over time.

See the Social Security of Canada website for an example of tracking user satisfaction systematically over time.

Q.30 While internal service standards may assist the administrative body in improving access to justice outcomes, external standards hold the body accountable in a way that non-public measures do not.

Category 2b: Representation

Q.31 The type of information and support that an administrative body provides to self-represented parties will vary widely, depending on the mandate of the administrative body.

Some administrative bodies have few self-represented parties appearing before them. In such circumstances, the cost of creating comprehensive and personalised information support in the form of something like a navigator program is simply not justified. On the other hand, a navigator service may be an appropriate solution where the body deals with high volumes of self-represented parties who are unable to participate meaningfully in proceedings on their own.

Q.32 Systematic monitoring of trends in self-representation enables the administrative body to establish a baseline and then track changes over time, as part of an evidence-based approach to management of access to justice issues.

Q.33 Systematic monitoring of how staff work with self-represented parties may show the need for further training or changes to the administrative body’s process.

Again, this will depend on whether the body deals with large numbers of self-represented parties, and whether it has well established training for staff in assisting self-represented parties, while maintaining the impartiality of the administrative body.

Q.34 Development of a policy on the role of support persons allows the administrative body to publicise its approach in a way that is transparent and predictable for users.

See the CCAT Tribunal Policies Repository (Representatives, Litigation Guardians and Support Persons tab) for examples of policies on the role of support persons.

Category 2c: Ethics and inclusion

Q.35 How often Indigenous participants appear before administrative bodies will vary widely, depending on the mandate of the administrative body.

However, all administrative bodies are part of Canada’s justice systems. The Truth and Reconciliation Commission’s Final Report had a significant impact on Canada’s legal systems, including the administrative justice system. At a minimum, adjudicators and others working in administrative bodies have a duty – both as public office holders and as custodians of a justice system – to learn about the magnitude of these human rights failings in Canada.

Q.36 This question recognises that a reconciliation plan needs to be tailored/developed to the particular mandate and work of each administrative body.

See the CCAT Truth and Reconciliation Repository for examples of reconciliation plans and policies.

Q.37 Administrative bodies that are adjudicating rights, benefits and entitlements have a particular obligation to ensure that access to the body is equitable. This question invites the body to examine whether its processes and working culture create barriers to equal participation for particular groups in the communities that it serves.

Q.38 This question invites the body to examine whether its internal practices enable equal access and participation by adjudicators and staff. The practices are not limited to recruitment and retention. They also include the workplace culture and how the administrative body is managed.

Q.42, 43 The use of artificial intelligence (AI) is rapidly evolving, and raises ethical issues, both when used internally in an administrative body and when used by parties and witnesses in a proceeding.

A clear risk in the use of AI is the limitation on its ability to distinguish accurate legal information from misinformation. As the use of AI may be an attractive alternative for parties who cannot afford a professional representative, it is important from an access to justice perspective, for the administrative body to clearly explain to users how it deals with AI intelligence.

For examples of policies on the use of AI, see:

• Canadian Human Rights Tribunal Practice Direction: Use of artificial intelligence (AI) in Tribunal proceedings: https://www.chrt-tcdp.gc.ca/en/about-us/practice-direction-use-artificial-intelligence-ai-tribunal-proceedings
• Condominium Authority Tribunal of Ontario Practice Direction: Use of Artificial Intelligence in CAT Cases: https://www.condoauthorityontario.ca/resource/practice-direction-use-of-artificial-intelligence-in-cat-cases/
• Barreau du Québec – L’intelligence artificielle - Guide pratique pour une utilisation responsable (Octobre 2024) :
• https://www.barreau.qc.ca/media/bnddaqfd/guide-intelligence-artificielle-generative.pdf
• Law Society of Saskatchewan, Guidelines for the Use of Generative Artificial Intelligence in the Practice of Law (February 2024)
• https://www.lawsociety.sk.ca/wp-content/uploads/Law-Society-of-Saskatchewan-Generative-Artificial-Intelligence-Guidelines.pdf

Category 2d: Public information and outreach

Q.44 A common challenge with government websites is that outdated information is not accurately dated and identified as archived once it is no longer current. The goal should not be to delete outdated information from the public record, but to properly identify it and store it.

Q.45 Instituting a regular forum for stakeholder consultation ensures that the administrative body remains aware of stakeholder concerns.

However, the administrative body must preserve its impartiality. So, terms of reference have to make clear to stakeholders where the limits of consultation are. In other words, consultation and discussion are limited to questions of process and practice, and do not include the substantive merits of cases.

Q.46 A stakeholder forum (Q.45) will typically focus on issues that practitioners who appear before the administrative body want to raise. However, the administrative body can play a role in the broader justice continuum by reaching out to community groups and others who may be affected by the body’s work, even if they do not appear regularly as representatives.

The principal goal of an administrative body is to manage its own jurisdiction, not to improve the work of others. That said, sometimes influencing the surrounding justice environment can also serve the goal of improving access to justice to the body itself. Striking the right balance will vary from one administrative body to the next.

Q.48-50 These questions encourage the use of plain language in all communications. There is a recognised definition of plain language as follows:

A communication is in plain language if its wording, structure, and design are so clear that the intended audience can easily find what they need, understand what they find, and use that information.

The definition is applied by the International Plain Language Federation and its member organizations. It is also reflected in the International Standards Organization (ISO) plain language standard (ISO 24495).

The adoption of plain language by an administrative body requires some training, but it is a relatively low-cost way to significantly improve access to justice.

Training on inclusive language is similarly a relatively low-cost way to significantly improve access to justice.

Q.51 While the federal and New Brunswick governments are officially bilingual, some jurisdictions that are not officially bilingual still require the delivery of government services – including those of administrative bodies – in English and French. See for example, Ontario’s French Language Services Act (R.S.O. 1990, c.F.32).

Q.52 Communications that include visual aids along with text are more likely to be understood and retained by readers than communications that only include text. This is because visual aids are more effectively incorporated into long-term memory than pure text. While visual aids help people at all levels of literacy, they are especially effective for people with lower literacy levels.

Q.53 Many administrative bodies provide parties with information about how to obtain support or representation for their case. To preserve impartiality, the body will not recommend individual representatives, but will direct parties to organizations that in turn can refer parties to legal clinics, representatives who do not charge a fee or community organizations that may offer assistance.

For an example of how one administrative body provides information about how to find a representative, see the Ontario Workplace Safety and Insurance Appeals Tribunal page on this issue.

Q.54 The open court principle creates a strong presumption of openness in administrative proceedings. At the same time, there are ways of protecting privacy interests while respecting the open court principle. Many administrative bodies publish policies which explain how they balance these competing concerns.

See the CCAT Tribunal Policies Repository (Open Court tab) for examples.

Category 3 – Costs

Category 3a: Service Charges

Q.56 If an administrative body provides interpretation of a language other than English or French but requires the party requesting it to pay for it, this poses a reputational risk. It may also pose a legal risk as a violation of s.14 of the Charter of Rights and Freedoms (see R. v. Tran, 1994 CanLII 56 (SCC)).

Q.58 Where an administrative body charges a fee for proceedings, it may also have a process for waiving the fee for parties that may have difficulty affording it. The simpler the fee waiver process, the less likely it is to restrict access to justice.

See the CCAT Tribunal Policies Repository (Damages, costs and fee waivers tab) for examples of fee waiver policies.

Q.60 Systematically budgeting in order to address user information needs helps to create an institutional commitment to access to justice in the administrative body.

Category 3b: Intangible Costs

Q.62 Staff at administrative bodies are generally not trained to deal with parties experiencing a mental health crisis, although this problem may arise at times. Some administrative bodies have established partnerships with organizations with mental health expertise, such as telephone crisis lines, so that they can refer parties to them in times of crisis.

Category 4 – Outcomes

Category 4b: Functionality and Transparency of Outcomes

Q.67 Most administrative bodies make their decisions available through the CanLII (Canadian Legal Information Institute) website. However, some bodies also use their own websites to host a decision database that assists users in finding decisions of the body. They may provide more specific guidance to users than is found on CanLII.

Q.68 Some administrative bodies have policies that actively encourage consistency in adjudication. The policies may not provide for internal monitoring for consistency once decisions are issued. However, administrative bodies that actively encourage consistent adjudication may be more likely to be alert to inconsistencies in adjudication once decisions are issued.

See the CCAT Consistency and Predictability Repository for resources and policies on consistent adjudication.

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