Development of An Access to Justice Index for Federal Administrative Bodies

Annex 3

Access to Justice Index for Federal Administrative Bodies Questionnaire

Category 1 Access to the Administrative Tribunal

Category 1.1. Physical Access

This first category, Access – both Physical Access and Access through Technology - has been drawn from Professor Lorne Sossin’s writing on access to justice in the administrative law context and has been modified. It is not enough to look at physical access to the administrative body, given the use of technology to facilitate access for parties, and so Category 1.2 asks questions about access to the administrative body through technology. In responding to the questions in this and the other categories, keep in mind that oral processes includes not only hearings, but all types of dispute-resolution processes, such as case conferences, mediation sessions and early dispute-resolution processes.

Please identify your tribunal.

1.  Does the administrative body (or contracted service provider) have at least one office open to the public?

2. Are oral processes (e.g. hearings, mediation) held in locations as close as possible to the parties?

3. When needed, can the rooms used for oral processes (e.g. hearings, mediations) accommodate anyone with a disability (e.g. elevator, ramps, wider doors, etc.)?

4. Are there rooms available where lawyers and other representatives can meet privately with their clients?

5. Does the administrative body have reception staff to assist visitors?

6a. Can a party speak with a representative of the administrative body outside of regular business hours (e.g. 8h00 – 17h00) across Canada?

6b. Can parties watch a live or simulated oral processes?

To provide service to clients outside of regular business hours, managers might approve overtime or flexible work schedules for staff.

7a. Can parties monitor live or simulated oral processes?

7b. Are parties informed that they can watch a live or simulated oral process? 

8. Is the administrative body open to the public?

9. Does the administrative body have a general policy or practice on accommodating special needs?

10. Is the office of the administrative body, as well as the site of processes, readily accessible by public transit?

11. Does the office of the administrative body provide access to child care or child-friendly spaces for children of parties or witnesses?

12. Are parties given choices when the administrative body is scheduling oral processes?

13. Has a substantiated claim of failure to accommodate a party’s needs been filed against the administrative body in the past 12 months?

Category 1.2 Access Through Technology

14a. Can parties participate in oral processes via teleconference or videoconference?

14b. Do parties participate in oral processes via teleconference or videoconference?

15a. Can parties participate in oral processes via written submissions?

15b. Do the parties participate in oral processes via written submissions?

16a. Can the administrative body respond to general questions from the public using different mechanisms, such as the Internet, email, live chat, telephone, TTY, and/or text messaging?

16b. Can the administrative body respond to all specific questions about a case when using different mechanisms, such as the Internet, email, telephone, TTY and/or text messaging?

17. Can the administrative body’s website be understood by users with various literacy levels?

18. Does the administrative body’s website meet Treasury Board accessibility standards for persons with disabilities?

19. Is the administrative body’s website accessible to persons with different learning styles, such as the inclusion of visual and audio presentations of information?

20a. Does the administrative body make use of web-diagnostic tools, such as Google Analytics or other software?

20b. Is the administrative body’s website designed to facilitate navigation?

21a. Does the administrative body solicit feedback from website users? (e.g. a pop-up survey or a feedback tab on the site)

21b. If the administrative body solicits feedback from website users, does it respond to issues raised?

22. Is technical assistance with the website readily available? (e.g. via a free telephone call)

23a. Does the administrative body use online forms? 

Online forms help reduce printing and delivery costs. Some forms can be completed online, but must be printed out and sent by mail or facsimile.

23b. Does the administrative body use “smart” forms?

A smart form is an electronic document that can be completed and submitted online.

Category 2 Processes

Category 2.1 Procedural Justice

By far the largest category, Processes, is divided into four subcategories. Procedural justice is the first subcategory and includes: the ability to express views during the process; the consideration of views and feelings during processes; the ability to influence outcomes; perceptions of a process’ fairness; and levels of satisfaction. In this category, “members” and “staff” of the administrative body are considered distinctly in the questions. The term, “members,” refers to those who adjudicate on behalf of an administrative body and are Governor-in-Council appointments for fixed periods of time (e.g. 3 years, 5 years), while the term, "staff," refers to those who work for, or support, the administrative body and are public servants.

24a. Do members receive training on, or are they assessed on prior experience with, active adjudication?

Active adjudication is explained in Sossin, Lorne and Friedman, Mark, “Charter Values and Administrative Justice” (2014). Osgoode Legal Studies Research Paper Series. Paper 62. Adjudication does not have a precise definition but usually connotes a mid-point between adversarial and inquisitorial models of adjudicative hearings. An active adjudicator will respect the right of parties to put forward their own positions on questions of law and fact but may supplement submissions by raising additional issues, seeking information or perspectives not provided by the parties, and redressing any asymmetries resulting from represented and unrepresented parties or parties of greater or lesser sophistication. . . . “ At a practical level, Ian Mackenzie describes it as “…the act of bending the process to fit the person or persons before the adjudicator, while respecting the impartiality of the adjudicator.”

24b. Do staff receive training on, or are they assessed on experience with, active adjudication?

25a. Do members receive training on, or are they assessed on experience with, objectivity and bias?

25b. Do staff receive training on, or are they assessed on experience with, objectivity and bias?

26. Can parties choose among a variety of processes as their case goes through the system?

Options might include: alternative dispute resolution, early settlement, a hearing before the administrative body; request awards for costs, etc.

27a. Does the administrative body monitor its members for implicit prejudice?

An implicit prejudice is one that occurs “outside of conscious awareness and control.” Monitoring could take the form of periodic self-assessment, analysis of decisions, interviews, performance evaluation, etc. An example is Harvard’s IAT: a self-assessment for implicit stereotyping. Potential examples of implicit prejudice would be decisions to doubt the legitimacy of awarding a disability pension to a young person, or to question the seriousness of a mental illness such as depression.

27b. Does the administrative body monitor its staff for implicit prejudice?

Monitoring could take the form of periodic self-assessment, analysis of decisions, interviews, performance evaluation, etc.

28a. Does the administrative body offer informal dispute mechanisms for parties to lodge and resolve complaints about their services?

An informal conflict-management system includes a variety of alternative dispute resolution (ADR) processes, such as: informal consultation, negotiation (self-resolution), third-party mediation, conflict coaching, and facilitation and group interventions.

28b. Does the administrative body offer formal dispute mechanisms for parties to lodge and resolve complaints about their services?

A formal conflict-management system could include: a written complaint process, an Ombudsman, etc

28c. Can parties choose between the administrative body’s informal and formal dispute-resolution mechanisms?

29. Does the administrative body provide interpretation services in languages other than French or English?

30a. In the last five years, has the administrative body evaluated how satisfied parties are with its processes?

Evaluation should consider accessibility of information (e.g. level of language, accessible formats, website functionality, etc.). Evaluations can be service specific, such as a survey about face-to-face mediation services, and may be completed as part of an internal or external audit.

30b. Has the administrative body responded to issues identified in evaluations of user satisfaction?

31. Does the administrative body have performance indicators relevant to access to justice?

Performance indicators describe how an observer can tell that results have been achieved. They define standards for the expected level of achievement of results, including timing, and can be qualitative or quantitative.

32. Does the administrative body have a system to collect and manage case data?

33a. Does the administrative body have documented internal service standards?

33b. Is compliance with internal service standards monitored?

33c. Does the administrative body have documented external service standards for process milestones?

33d. Is compliance with external service standards monitored?

34. Does the administrative body meet its external service standards in 85% or more of cases?

TBS is introducing new service standards policy and operational directives will be required for all departments and agencies. There is no official document that lists goals for each standard. According to internal discussions with evaluation officials, Treasury Board Secretariat is aiming for 90%; while 80% is considered too low, some organizations have agreed to 85%. No global standard has been set that takes the average of all priority services offered. See TBS Policy on Service here.

Category 2.2 Representation

Self-representation has become one of the most important issues in access to justice in the last decade. Administrative bodies, for the most part, are designed to be less formal than the court system and therefore may see many cases with self-represented parties.

35. Does the administrative body provide information to parties who represent themselves? (e.g. checklists and other public legal education and information materials, on process, FAQs, and other topics specific to a self-represented party)

Administrative bodies were intended to provide a less formal way to resolve disputes. Each administrative body has its own set of rules. Self-representation may help increase access to justice, but just as important are the supports (information, guidance, etc.) provided by the administrative body.

36. Does the administrative body monitor trends in self-representation?

37a. Do members receive training on how to work with, or are they assessed on experience with regard to, self-represented parties?

37b. Do staff receive training on how to work with, or are they assessed on experience with regard to, self-represented parties?

37c. Does the administrative body monitor members’ engagement with self-represented parties and submissions?

37d. Does the administrative body monitor staff engagement with self-represented parties and submissions? (e.g. calls with clients could be randomly monitored)

38. Does the administrative body support parties who lack the capacity to self-represent? (e.g. designated staff provide additional information by telephone or in person, provide additional assistance with documents and processes; referrals to outside service providers)

39. Can a party have a support person of their choice present throughout the process? (e.g. a family member, friend, community worker, etc.)

Category 2.3 Interpersonal Aspects

Some of the elements in this third subcategory include: whether users were treated in a polite and respectful manner by administrative body staff and members; tribunal officials; members and staff did their best to produce a good outcome for all parties; members and staff were transparent in their communication.

40a. Do members receive training on, or are they assessed on experience with regard to, treating parties, staff and other members with respect?

40b. Do staff receive training, or are they assessed on experience with regard to, treating parties, members, and, other staff with respect?

41. Does the administrative body have a “Code of Conduct/Values/Ethics”?

42a. Do members receive training or are they assessed on experience with regard to the duty to accommodate?

42b. Do staff receive training or are they assessed on experience with regard to the duty to accommodate? 

Category 2.4 Informational Aspects

In this final subcategory, the theme is information (PLEI—public legal education and information) and includes: whether officials (staff or members depending upon the context) explain processes, rights and options in a thorough and timely manner; whether the parties understood these explanations; and whether the parties were provided opportunities to ask for clarification.

43. Does the administrative body provide opportunities for parties to correct inaccurate information during the process (i.e. before a decision is rendered)?

44. Is written and oral information about the administrative body kept up-to-date? (e.g. when there are changes in the law, in the processes, information provided to parties and to the public is updated)

45. Does the administrative body conduct regular outreach activities? (e.g. on an on-going basis activities such as newsletters, stakeholder meetings, speaking events, etc.)

46a. Is there information about the administrative body on the website of relevant stakeholders and information and services agencies?

46b. Is there information about the administrative body in the waiting rooms of relevant stakeholders and services agencies?

47. Is there a Frequently Asked Questions (FAQ) section on the administrative body’s website?

A FAQ document is part of many information packages. It answers questions commonly asked by clients, users and other parties even after they have reviewed other information. It is assumed that an FAQ is written in plain language so that people with various literacy levels can understand it.

48. Is there a glossary of terms on the administrative body’s website?

49. Is accessible/plain language used in written resources?

The CCAT maintains a definition of plain language and offers an online course on literacy that is free for CCAT members.

50a. Is accessible/plain language used in oral communication with parties?

50b. Does the administrative body monitor communication materials for accessible language?

51. The administrative body does not have any substantiated claims with the Office of the Commissioner of Official Languages for the refusal to provide services in English or French filed against it in the past 12 months?

52. Are written resources available in languages other than French and English (e.g. Braille, Spanish and Chinese)?

53. Does the administrative body provide information using visual aids?

54a. When interacting with parties, do staff refer additional resources?

54b. Does the website provide referrals to additional resources?

54c. Does the administrative body provide paper copies of additional resources?

54d. Are referral lists kept current?

55. Does the administrative body protect personal information?

Category 3 Costs

This category considers the costs to parties who access administrative processes. Almost all of these costs are services charges. Not included are costs identified in the Tilburg research (opportunity cost compensation and several intangible costs).

Category 3.1 Service Charges

56. Does the administrative body pay for interpretation of languages other than French and English during hearings, mediation and other proceedings?

Proceedings include any dispute-resolution process, such as hearings and mediation sessions. Many newcomers, particularly refugee claimants recounting traumatic events, are unable to provide testimony in English or French. Interpretation may also be required when a party has a disability that impedes clear communication in one of Canada’s official languages.

57. Does the administrative body pay for the translation of key documents (e.g. letters to parties, decisions) into languages other than French and English?

58. Does the administrative body pay for additional copies?

59a. Can parties file documents at no charge?

59b. If there are fees for filing documents, is there a sliding scale or waiver of fees for parties who meet low-income criteria?

60a. Can parties use the administrative body’s rooms for oral processes (e.g. hearings, mediation) at no charge?

60b. If there are fees for the use of rooms, is there a sliding scale or waiver of fees for parties who meet low-income criteria?

61. Can users access public legal education and information (PLEI) materials (in print or online) free of charge?

62. Does the administrative body partner with a public-interest pro bono PLEI group?

63. Does the administrative body maintain toll-free telephone and fax lines?

64. Does the administrative body allocate a portion of its budget to the information needs of parties, such as surveys, testing of materials, website revisions, etc.)?

While not necessarily a line item in the budget, the answer would be “yes” when resources are dedicated to activities that respond to the information needs of parties (e.g. website revisions, brochure updates, user surveys, etc.)

3.2 Intangible Cost Supports

65. Does the administrative body provide staff with assistance and support for mental well-being? (e.g. access to an Employee Assistance Program, an internal wellness program)

66. Does the administrative body have an assistance program for mental well-being for members?

67. Does the administrative body provide assistance or support related to mental health to parties, and/or does it provide referrals to relevant people/organizations?

4.0 Outcomes

4.1 Distributive Justice

The final category, Outcome, plays an important role in parties’ overall sense of fairness and justice. The first subsection, Distributive Justice, highlights that many conflicts have one or more issues related to the division of assets, damages and tasks, and to application of sanctions. Distribution as a dimension of the quality of outcomes refers to the appropriateness of outcomes with regard to questions about allocation. (Definition from the Tilburg model handbook)

68. As appropriate, does the administrative body help to distribute of money and assets (e.g. benefits)? 

69. Does the administrative body consider the needs of the parties? (e.g. the unique socioeconomic circumstances of the parties)

70. Does the administrative body consider the roles of parties in disputes (e.g. employer/employee)?

71. Does the administrative body consider the efforts of the parties?

72a. Can the administrative body award or facilitate a remedy for monetary harm?

72b. Does the administrative body award or facilitate a remedy for monetary harm? (e.g. an award that includes lost salary and benefits)

73a. Can the administrative body award or facilitate a remedy for emotional harm? (e.g. stress, anxiety or other negative emotional impact)

73b. Does the administrative body award or facilitate a remedy for emotional harm?

4.2 Functional Justice

Another dimension in this Category is the extent to which outcomes are useful from the perspective of parties. When a conflict arises, few people immediately think of the rights they may or may not have. Most people instead seek to resolve the conflict and that spurs them toward seeking justice. (Definition from the Tilburg model handbook)

74. Does the administrative body seek to improve the relationship damaged during the dispute?

75. Does the administrative body solicit feedback on the extent to which the parties have reconciled their differences? (e.g. a survey or follow up to solicit feedback on the reconciliation process)

76a. Can the administrative body enforce outcomes?

76b. Does the administrative body enforce outcomes?

77. Does the administrative body monitor outcomes to prevent future conflict?

4.3 Transparency of Outcomes

Transparency is discerned as a dimension of the quality of outcomes. Basically, this refers to two related elements. The quality of an outcome may be partly dependent on the justification underlying it. Thus, it is important that the justification is transparent and open to scrutiny. This scrutiny helps with evaluating the extent to which an outcome is similar to those of similar cases. (Definition from Tilburg model handbook)

78. Is the decision clearly communicated to the parties? (e.g. in plain/accessible language in a letter or email)

79. Are the reasons for the decision clearly communicated to the parties?

Reasons are typically communicated at the same time as the decision.

80. Is the decision or settlement publicly accessible in full or redacted format?

81. Once issued, are decisions by the administrative body monitored internally for consistency in application?

Please provide any examples of best practices—activities or initiatives that enhance access to justice. These could fit into one or more of the four index categories. The examples will not be weighted, nor form part of the index, but will be highlighted in the narrative that will accompany the Index results, as a way to share good ideas.

NOTE: Enter notes here.