Fulfilling The Worst Expectations Respecting The Executive’s Discretion To Appoint

by jlhsprague

By its nature the discretion of governments respecting the appointment of administrative agency members is subject to criticisms and allegations of abuse. It is an accepted principle that governments in making their appointments are entitled to consider the point of view or philosophy of those who they appoint. Who is appointed to agencies can be as important as the powers and mandate entrusted to the agency. Legislation does not govern the operation of agencies in every detail. Agency members usually possess great discretion under the various statutes to determine what an agency will do and how it will do it. They have the authority to interpret legislation (a power which is increasingly important given the default deference of modern courts to agency interpretations of their home statutes). They have the authority to create policies which guide them and any regulated individuals in the exercise of their mandates. They have the authority to determine when some projects will be initiated and which will be deferred. In appointing individuals of its choice to agencies a government generally seeks to ensure that appointees not only possess the expertise to do the job at hand but also share the appointing authority’s vision of governance. An agency’s approach to governance or its policy decisions can either further or frustrate a sitting government’s vision.

 

No agency governs by fiat or the brute force of the law. Ultimately in order for its orders to be effective and its mandate achieved it must achieve “buy-in” from the public. The public must have confidence in the agency.   An essential part of this “buy-in” requires that agencies not only not abuse the discretion granted to them but also attempt to avoid the appearance of abuse. In order to avoid creating situations whereby the validity of an agency, or its actions, may be called into question and thus undermining that public “buy-in” governments must similarly attempt to ensure that their discretion is exercised in a manner that may be seen as, or open to, allegations of abuse.

 

This does not always happen as illustrated by two incidents which appear to have their roots in the pending 2015 federal general election.

 

Readers will recall that in the period before the Conservative government called the federal general election in 2015 (which it knew would put its continuing authority at risk) it exercised its appointment power to re-appoint a number of individuals whose existing appointments had not yet expired. These re-appointments were made but by their terms were not to come into effect until the existing appointments had expired. Some of these existing appointments would expire during the election period. Some would expire in the thirty days or so following the October 19, 2015 polling day. Some few would not expire until long after the election day – some as much as a year after the election. (For example the existing appointment of the director of the Canadian Museum of History was not scheduled to expire until June 2016 yet it was renewed in June, 2015 with a delayed effective date of June 2016 for five years until June 2021[1] while that of the Canada Post CEO was not set to expire until February 2016 but was renewed July 28, 2015 for five years until February 2021 with an effective date of February 1, 2016.

 

Why is this important?  It is not an issue of expertise. Presumably all of these individuals had the expertise to validly hold the positions they held.

 

The issue is partly a question of patronage with one government apparently attempting to appropriate to itself the ability to appoint individuals to agencies which rightfully belongs to another government. This is in itself not an insignificant matter. Patronage is an established mechanism for the running of the political state. (For a much more expansive discussion see Jeffery Simpson’s history of patronage in Canada, Spoils of Power: The Politics of Patronage.)

 

Much more serious is that the reappointments made far in advance of the expiry of the existing appointment can look like an abuse of the appointment power.[2] It can appear to be an effort for a government to attempt to ensure that its policies and approaches to governance will continue beyond its lifetime. Had those far advanced reappointments been made during the election period they would likely have fallen afoul of the caretaker convention.[3] And, of course, that party would have lacked the authority altogether after the election to make the far advance appointments that it did.

 

By purporting shortly before an election to re-appoint individuals effective long after it may have lost the authority to directly govern a government can continue to maintain its grip on the governance of a nation indirectly by ensuring that those who interpret and implement legislative programs share its vision and approaches. The Conservative government’s actions in these far advance re-appointments is far more serious than simply who gets to appoint whose friends to what posts.

 

Personally, I am not affronted by a government exercising its appointment power to address agency appointments which will expire during an election period or shortly thereafter. These are times when governments have the least time or resources able to direct their minds to the needs of agencies and to ensure that individuals who are needed to run an agency are capable of doing so. (Such appointments would likely pass muster under the caretaker convention (as being urgent and in the public interest)). This is the period when the executive is least likely to be able to turn its mind to agency appointments and agencies should be able to continue to function efficiently notwithstanding elections. It is not unknown in the past for governments to have made re-appointments effective in the thirty or so days following an election. In my view this is a practical compromise between pure theory and practical necessity which the system can tolerate.   The actions of the Conservative government in 2015, however, respecting the far advance appointments is quite a different story. It does not appear to have been an exercise in ensuring the effective operation of agencies over an election period but, rather, gives the appearance of an obvious attempt to make appointments effective many months after one has lost the reins of governance.  If effective operation were the guiding motivation of the government one might have expected it to turn its mind to the longstanding egregious need of the Specific Claims Tribunal for the government to fill the outstanding vaccines on that tribunal. (See the article “Pledge to add members soon, says panel head” in the February 05 2016 issue of the Lawyers Weekly which recounts the repeated and unanswered requests of the head of the Tribunal, Mr. Justice Slade for the government to fill that body’s vacancies  http://www.lawyersweekly.ca/articles/2604.  Incidentally, Justice Slade was originally appointed head of the Tribunal by the Conservatives in July 2010 effective December 2010 for a 5 year term to December 2015.  There was no advance re-appointment for Justice Slade by the Conservatives before the election.  He was re-appointed by the Liberals in December 2015 for another 5 year term.) Or, alternatively, the government might have thought to provide some redress for the astounding backlog of the Social Affairs Tribunal (see reports such as http://globalnews.ca/news/1703378/disability-benefits-wait-stretches-years-due-to-tribunal-backlog/ or as reported by the Auditor General http://www.cbc.ca/news/politics/auditor-general-report-shared-services-1.3429861.)

There does not appear to be any legal prohibition against the exercise of an appointment power far in advance of the expiry of the original appointment as was done in these cases. While there are a number of provisions in the federal Interpretation Act respecting appointments none address this issue. It may be that this incident calls for legislation to address it.

 

It is likely that past governments may not have been lily white purists respecting the exercise of their appointment powers out of pure respect for the purity of the system. The most practical reason that I can identify why no government (to my knowledge) has acted so blatantly in the past is the simple fact that appointments which are not made effective until some time far in the future can be revoked at will by a new government with no economic or legal cost to the government. (See the discussion in chapter 4 of Macaulay and Sprague Practice and Procedure Before Administrative Tribunals (Carswell).)  The legal reality respecting appointments today is that whether an appointment is for a set term terminable only for cause or is at pleasure terminable at will once in effect that appointment can still be revoked without cause by a government with at an economic cost in the payment of damages arising either from contract (the “at pleasure” appointees) or from the law regarding improper termination (the “for cause” appointees). However, that rule applies only to the termination of a existing appointment – not the revocation of an appointment which is not yet effective. Where the appointment is not yet effective the appointed individual will not yet have entered into any contractual relations and the government will not be liable for any damages resulting from the termination of that not yet effective appointment. The same argument will apply to those advance instruments respecting appointments which can only be terminated on address of one or both Houses of Parliament. The statutory language respecting those latter appointments is generally couched in terms of a member being removable from office only on address to the relevant House. The cancellation of an appointment which is not yet effective does not remove a member from office. It operates to prevent the member from assuming that office.

 

Only the now defunct Conservative government knows why it acted as it did. It may have been unaware of the legal ease to terminate appointments which are not yet in effect. Alternatively it may have hoped that an inexperienced new government was unaware of the significant policy role the outgoing government was hoping to secure through these advance appointments. Or it may simply have hoped that at very least these appointments might have been continued by the incoming government due to the political spectacle involved in the termination of a significant number of perhaps fully qualified agency appointees. Whatever the motives there does not appear to have been anything innocent or worthy in the policy of far advance re-appointments. At the very least it made many likely qualified appointees into political footballs. One hopes that future governments will resist the urge to follow this practice.

 

The second illustration of actions with poor public optics deals with the position of the federal Veterans’ Ombudsman. That office was created by the Conservative government by order-in-council on April 3, 2007 (OiC 2007-0530). An individual was then appointed as Ombudsman on October 12, 2007 for three years with the appointment being effective November 11, 2007 (OiC 2007-1553). Approximately three years later on November 4, 2010 the original order-in-council was amended to change the terms of the position. The order-in-council now specified that an appointment could not be renewed (OiC 2010-13374- effective November 11, 2010). The effect of this change was to make the existing Ombudsman ineligible for re-appointment. That same day a different individual was appointed Ombudsman for a five year non-renewable term effective November 11, 2010 (the expiry of the original Ombudsman’s appointment). Approximately five years later, on June 5, 2015 the original order-in-council was again amended, this time to remove the earlier inserted ban on re-appointments and to make the term of appointment renewable (OiC 2015-0783). One month after that, on July 28, 2015, the then Ombudsman was re-appointed for a 3 year term effective on the expiry of his existing appointment November 11, 2015 (OiC 2015-1139). This re-appointment was made approximately one week before the government called the 78 day general election (in which it was to be voted out of office) slightly over three months before the expiry of the individual’s existing appointment.

 

This “in again out again” tampering with the terms of the Ombudsman position can give rise to public suspicions of a government tampering with a position in order to ensure the appointment or non-appointment of particular individuals.  Questions naturally arise as to why the “non-renewable” term was inserted into the original position description and why was it subsequently removed?  The cynic will wonder if it had anything to do with the government’s view of the individuals involved.  Whether or not such suspicions are valid the neutrality of the position is thereby called into question and the public “buy-in” of its actions is threatened.

 

It is doubtful that actions such as the above are restricted to only governments of one political stripe. The nature of politics is to seek to win and to hold power and there are instances where the line is likely crossed. That, however, does not diminish the point that the care should be taken to avoid such instances which can undermine the effective operation of agencies and the accomplishment of their mandates.  For certainly, whatever else the fallout of these actions by the Conservative government they turned the careers of  many qualified individuals into political footballs (as recently evidenced by the legally unfounded calls by the Conservative opposition for the resignation of the Liberal Minister for contacting relevant appointees to suggest their voluntary resignation of their re-appointments.  Thus, ensuring that the matter would remain in the forefront of the political arena.  This further indicates that politics – not efficiency or effectiveness – was at the heart of the government’s actions in the last days of its tenure).

[1] Technically, this was an approval of an appointment by the Board of Trustees of the Museum.

 

[2]   In the abstract it raises the spectre of an government concerned with the loss of control making successive renewals of an appointment for decades in advance each effective on the expiry of the preceding appointment. This abstract possibility illustrates the inherent wrongness of far advance reappointments.

 

[3] In its August, 2015 document Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election the federal Privy Council Office explains the caretaker convention as follows:

 

“In Canada’s Westminster form of government, convention requires that the Government command the confidence of the House of Commons at all times. While constitutionally a government retains full legal authority to govern during an election, as well as the responsibility to ensure that necessary government activity continues, it is expected to exercise restraint in its actions. This is often referred to as the “caretaker convention”. The rationale is that, following dissolution, there is no elected chamber to which the Government can be held accountable, and the Government cannot assume that it will command confidence in the next Parliament.

 

 

This does not mean that government is barred from making decisions or announcements, or otherwise taking action, during the caretaker period. It can and should do so where the matter is routine and necessary for the conduct of government business, or where it is urgent and in the public interest – for example, responding to a natural disaster. In certain cases where a major decision is unavoidable during a campaign (e.g., due to an international obligation or an emergency), consultation with the opposition parties may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse.

 

In short, during an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is:

 

  • (a) routine, or
  • (b) non-controversial, or
  • (c) urgent and in the public interest, or
  • (d) reversible by a new government without undue cost or disruption, or

(e) agreed to by opposition parties (in those cases where consultation is appropriate).

 

In determining what activity is necessary for continued good government, the Government must inevitably exercise judgement, weighing the need for action and potential public reaction, given the absence of a confidence chamber and the possibility that a different government could be elected.”