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d is made up of civilian judges this appellate court is the successor of the court martial appeal board which was created in 1950 presided over by civilian judges and lawyers and was the first ever civilian based adjudicating body with authority to review decisions by a military court the court martial appeal court is made up of civilian judges from the federal court federal court of appeal and the superior courts of the provinces administrative tribunals edit see also list of canadian tribunals known in canada as simply tribunals these are quasi judicial adjudicative bodies which means that they hear evidence and render decisions like courts but are not necessarily presided over by judges instead the adjudicators may be experts in the subject matter handled by the tribunal e g labour law human rights law immigration law energy law workers compensation law liquor licensing law etc adjudicators hear arguments and receive evidence from parties before making a decision adjudicative functions which can be given to provincially appointed administrative tribunals are limited by section 96 of the constitution act 1867 as this section will be violated where an adjudicative function is the sole or central aspect of a tribunal and where that power broadly conforms to one that was exercised by superior courts at the time of confederation 52 53 this has not significantly affected the ability of provincial governments to establish expert administrative tribunals and there have been few challenges of this kind to administrative tribunal powers 53 depending on its enabling legislation a tribunal s decisions may be reviewed by a court through an appeal or a process called judicial review the reviewing court may be required to show some deference to the tribunal if the tribunal possesses some highly specialized expertise or knowledge that the court does not have the degree of deference will also depend on such factors as the specific wording of the legislation creating the tribunal tribunals whose enabling legislation contains a privative clause are entitled to a high degree of deference although a recent decision of the supreme court of canada 54 has arguably lowered that degree of deference tribunals which have the power to decide questions of law may take into consideration the canadian charter of rights and freedoms which is part of canada s constitution the extent to which tribunals may use the charter in their decisions is a source of ongoing legal debate appearing before some administrative tribunals may feel like appearing in court but the tribunal s procedure is relatively less formal than that of a court and more importantly the rules of evidence are not as strictly observed so that some evidence that would be inadmissible in a court hearing may be allowed in a tribunal hearing if relevant to the proceeding while relevant evidence is admissible evidence which the adjudicator determines to have questionable reliability or is otherwise questionable is most likely to be afforded little or no weight as with courts lawyers routinely appear in tribunals as representatives of their clients a person does not require a lawyer to appear before an administrative tribunal indeed many of these tribunals are specifically designed to be more representative to unrepresented litigants than courts some tribunals are part of a comprehensive dispute resolution system which may emphasize mediation rather than litigation for example provincial human rights commissions routinely use mediation to resolve many human rights complaints without the need for a hearing what tribunals all have in common is that they are created by statute their adjudicators are usually appointed by government and they focus on very particular and specialized areas of law because some subjects e g immigration fall within federal jurisdiction while others e g liquor licensing and workers compensation are within provincial jurisdiction some tribunals are created by federal law while others are created by provincial law there are both federal and provincial tribunals for some subjects such as unionized labour and human rights the principle of stare decisis does not apply to tribunals in other words a tribunal adjudicator could legally make a decision that differs from a past decision on the same subject and issues delivered by the highest court in the land because a tribunal is not bound by legal precedent established by itself or by a reviewing court a tribunal is not a court even though it performs an important adjudicative function and contributes to the development of law like a court would do although stare decisis does not apply to tribunals their adjudicators will likely nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts citation needed the same is usually true for past decisions of the tribunal among the federal tribunals there is a small group of tribunals whose decisions must be appealed directly to the federal court of appeal rather than to the federal court trial division these so called super tribunals are listed in subsection 28 1 of the federal courts act 55 and some examples include the national energy board canadian international trade tribunal the competition tribunal the canada industrial relations board i e federal labour board the copyright board and the canadian radio television and telecommunications commission crtc judicial independence edit the judiciary is a separate and independent branch of government with constitutional status judicial independence is a constitutional principle and is necessary to protect the rule of law 56 the constitutional principle of judicial independence is protected for provincial superior court judges by sections 99 and 100 of the constitution act 1867 which guarantees judicial tenure and salaries 56 it is also constitutionally protected for judges hearing criminal matters by section 11 d of the canadian charter of rights and freedoms however the supreme court of canada has held that the principle of judicial independence is a foundational structural component of the constitution of canada and applies to all judges and courts without an express written guarantee of judicial independence by providing guaranteed salaries and tenure the supreme court relied in part on the preamble to the constitution act 1867 in its decision on this point 57 56 judicial independence has two aspects the autonomy and independence of judges from other branches of government and immunity from legal consequences for actions which are taken in the performance of judicial functions 56 reference re remuneration of judges edit main article reference re remuneration of judges of the provincial court in reference re remuneration of judges of the provincial court a majority of the supreme court of canada held that the constitution of canada includes an unwritten constitutional principle of judicial independence recognized by the preamble to the constitution act 1867 57 58 the issue at stake was whether provincial legislatures measures reducing salaries of provincial court judges were constitutionally valid 58 the majority held that provinces are constitutionally obliged to establish judicial compensation commissions 58 the effect of this decision was that the constitution requires salaries of provincial court judges to be protected in some manner but this protection need not be identical to that of superior courts 58 a further supreme court decision in provincial court judges assn of new brunswick v new brunswick minister of justice clarified that salary review commission recommendations are not binding and departures from advisory recommendations may be justified so long as rational reasons are provided 59 58 after the previous decision in 1997 substantial increases in salaries were recommended by some judicial compensation commissions and not all such recommendations were accepted by governments 60 a unanimous court expressed a desire to avoid further disputes by clarifying the role of the commission process 61 60 reasons of the majority edit it was held that the right to judicial independence was thus extended to provincial court judges in the following core characteristics 62 security of tenure ie judges can only be removed for cause after an inquiry in which he must be given a full opportunity to be heard financial security ie the right to salary of a provincial court judge is established by law and there is no way in which the executive can interfere with that right in a manner to affect the independence of the individual judge administrative independence which is the control by the courts over the administrative decisions that bear directly and immediately on the exercise of the judicial function in addition there are two dimensions of judicial independence 63 the individual independence of a judge and the institutional or collective independence of the court or tribunal of which that judge is a member the relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which the judge presides is not independent of the other branches of government in what is essential to its function the judge cannot be said to be an independent tribunal with respect to its applicability to protecting the financial security of judges salaries the following principles were stated 64 salaries of provincial courts may be varied but only after undertaking an independent effective and objective process by an independent body under no circumstances is it permissible for the judiciary not only collectively through representative organizations but also as individuals to engage in negotiations over remuneration with the executive or representatives of the legislature any reductions to judicial remuneration including de facto reductions through the erosion of judicial salaries by inflation cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge inherent versus statutory jurisdiction edit courts of inherent jurisdiction edit the superior courts from the provinces and territories are courts of inherent jurisdiction which means that the jurisdiction of the superior courts is more than just what is conferred by statute following the principles of english common law because the superior courts derive their authority from the constitution they can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal the doctrine of inherent jurisdiction gives superior courts greater freedom than statutory courts to be flexible and creative in the delivering of legal remedies and relief statutory courts edit the supreme court of canada the federal courts the various appellate courts from the provinces and territories and the numerous low level provincial courts are statutory courts whose decision making power is granted by either the federal parliament or a provincial legislature the word statutory refers to the fact that these courts powers are derived from a statute and is defined and limited by the terms of the statute a statutory court cannot try cases in areas of law that are not mentioned or suggested in the statute in this sense statutory courts are similar to non judicial adjudicative bodies such as administrative tribunals boards and commissions which are created and given limited power by legislation the practical implication of this is that a statutory court cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in its enabling or empowering statute appointment and removal of judges edit main article judicial appointments in canada judges in canada are appointed by either the federal government the provincial governments or the territorial governments depending on the court judges of the supreme court of canada the federal courts and the provincial and territorial superior appellate and trial courts are appointed by the governor general of canada acting on the advice of the federal cabinet 7 judicial appointments to provincial courts of statutory jurisdiction are made by the provincial governments salaries of provincial superior courts are set by parliament under section 100 of the constitution act 1867 and paid by the federal government since the provincial judges reference 57 salaries for all federally appointed judges are based on recommendations of the judicial compensation and benefits commission similar commissions are established by each province to recommend the salaries for provincially appointed judges who are paid by the provincial governments tenure of judges and removal from the bench edit federally appointed judges are eligible to serve on the bench until age 75 in some but not all provincial and territorial courts appointed judges have tenure until age 70 instead under section 99 of the constitution act 1867 judges of the superior courts of the provinces hold office during good behaviour but shall be removable by the governor general on address of the senate and house of commons 65 to protect the principle of judicial independence parliament has by statute delegated authority to investigate complaints against judges and recommend their removal to the canadian judicial council 66 the council includes the chief justice of canada and the chief justice and associate chief justices of each provincial and territorial superior court 67 the federal judges act outlines the justifiable grounds for removing a federally appointed judge from office and allows for complaints against those judges to be made to the council by any person including members of the public 68 the federal minister of justice or the attorney general of a province may also request that the council establish a hearing panel to consider whether a judge of a superior court should be removed 69 judges may only be removed from office for specified reasons such as infirmity or misconduct and only where their continuing in office would undermine public confidence in the judge s impartiality integrity or independence enough that the judge is incapable of executing their role 68 the council provides reports concerning the outcome of complaints and recommendations concerning removal from office to the federal minister of justice 70 to remove a judge from office the house of commons and senate must both pass a resolution 65 no superior court judge has been removed from office under section 99 of the constitution act 1867 though on several occasions judges have resigned where it appeared likely that the senate and house of commons would pass a resolution seeking their dismissal 56 the rules for provincial and t...