Step away from that Nuclear Safety Commission

Linda Keen’s response to Natural Resources Minister Gary Lunn’s recent dealings with the Canadian Nuclear Safety Commission over the National Research Universal (NRU) nuclear reactor at Chalk River, Ontario, raises 2 very interesting questions about quasi-judicial tribunals in Canada:

1. Just how much independence can one expect from an administrative tribunal?

2. How far should members of an administrative tribunal go to protect that independence?

Linda Keen is the President of the Canadian Nuclear Safety Commission (CNSC). The CNSC is, according its website:

… an independent federal government agency that regulates the use of nuclear energy and material to protect health, safety, security and the environment and to respect Canada’s international commitments on the peaceful use of nuclear energy.

As in the case of all independent tribunals, the CNSC is charged with applying specialized expertise to deal fairly and without political interference with the matters within their jurisdiction as defined by their enabling statute. In this particular case, the CNSC was dealing with a license held by Atomic Energy of Canada Limited (AECL) to operate a nuclear reactor at Chalk River, Ontario, that generated a very significant proportion of the medical isotopes used at hospitals and patient treatment centers throughout North America.

The basic facts are that on November 5, 2007, the CNSC discovered that AECL had been operating its nuclear reactor with 2 pumps in its cooling system disengaged, in contravention of its license. As a result, CNSC asked AECL to conduct an assessment to assure itself and the CNSC that it was still safe to operate the reactor.

The reactor shut itself down as a result of a reactor trip in November 16, 2007, however AECL staff informed CNSC staff that they were operating “within their safety envelope”, and restarted the reactor later that day.

The requested safety assessment was done on November 19, 2007, when the reactor was shut down for its regular four-day maintenance activities. The result of the assessment confirmed CNSC’s concerns, and on November 22, 2007, AECL voluntarily shut the reactor down until it could install qualified motor starters for the 2 non-functioning pumps.

It’s worth remembering that this reactor was originally commissioned in 1957. In 1996, after 40 years in operation, AECL informed CNSC that the reactor would not continue in operation beyond December 31, 2005. AECL applied during 2005 for a 63 month license extension, which was granted after a 2 day public hearing received presentations from CNSC staff, along with 37 intervenors. When the license was renewed in June 2008, CNSC expressed concerns that “… the [reactor] design fell below current standards and practices, particularly in the design of defence-in-depth barriers such as shutdowns, emergency core cooling and confinement”, but that based upon safety upgrades that included the 2 pumps in question, the upgraded reactor would not pose an unacceptable risk to the public.

What is also worth bearing in mind, is that this map indicating seismic activity in the Chalk River area (which is about 38 km from Pembroke, Ontario), in the last 30 days alone.

Within 2 weeks of the shutdown on November 19, 2007, a shortage of medical isotopes emerged in Canada that delayed a number of medical tests and treatments for a large number of patients across the country. This started to attract media attention, and despite the fact that CNSC and AECL had been working together in an attempt to bring the reactor back online as quickly and safely as possible, the Minister of Natural Resources, who had apparently been aware of the deficiencies at the Chalk River reactor since at least September 2007, sprang into action.

What followed was a frontal attack on the CNSC’s independence as a quasi-judicial tribunal, that involved at least 2 telephone calls by the Minister of Natural Resources and Health Minister Tony Clement, together with a joint letter from both of them, all designed to pressure CNSC to permit AECL to restart the reactor without AECL’s license amendment application, notwithstanding that no proper safety assessment had yet occurred for the manner in which AECL proposed to deal with how the reactor would be cooled.

By December 10, 2007, the government withdrew legal services from the CNSC without notice.

On December 13, 2007, the government had legislated the reactor to begin operations, over the safety concerns of its nuclear regulator.

Most recently, the Minister of Natural Resources has threatened to fire Ms. Keen over the matter. Ms. Keen has responded in spirited defence of the CNSC’s actions, and warning the Minister of the chilling effect his actions would have on the work of all quasi-judicial tribunals in Canada.

She raises an interesting point.

Independent – to an extent

The degree to which an administrative tribunal (as opposed to a court) is required to be independent of political and governmental interference in Canada was recently dealt with by the Supreme Court in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781. There, the unanimous Court stated

22 However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question.

23 This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts. Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. It protected, and continues to protect, the impartiality of judges – both in fact and perception – by insulating them from external influence, most notably the influence of the executive.

24 Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. [citations omitted]

Bearing that in mind, just how much independence are Ms. Keen, and ultimately the Canadian Nuclear Safety Commission entitled to?  [UPDATE:  For an interesting take on the independence of administrative tribunals, see this article by Lorne Sossin on the University of Toronto Faculty of Law Blog.]

On the first question, Ms. Keen is quite correct when she states that as a permanent member of the Commission, she is entitled to hold office during good behaviour, and may only be removed for cause. Mr. Lunn appears to be referring to Ms. Kean’s leadership in handling the Chalk River reactor affair.

If Ms. Keen is correct in that she and the Commission prioritized resources to deal with getting the reactor up and running, and that they did all they could within the framework of the Nuclear Safety and Control Act, S.C. 1997, c. 9, then in my view, Cabinet cannot just simply remove her, even if they would like to have seen her take steps to allow AECL to restart the reactor much sooner.

As to the degree of independence with which the Commission as a whole is entitled to operate, the answer is much more complex. Presumably, a court reviewing a case where the CNSC’s independence has been questioned would cast an eye to the decision of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, where, at least in the case of determining the standard of review, a reviewing court must consider whether the legislation that creates the administrative tribunal has a privitive clause, the expertise of its members, the purpose of both the act and the provision that deals with the question before the court, and the “nature of the problem”.

In a case such as whether the CNSC has improperly suspended a license, or failed to permit a reactor to be restarted, we are dealing with a clause that states that members hold office during good behaviour and may only be removed for cause.

The purpose of the Act is dealt with in its Preamble and section 3. The Preamble states

WHEREAS it is essential in the national and international interests to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information;

AND WHEREAS it is essential in the national interest that consistent national and international standards be applied to the development, production and use of nuclear energy;

Section 3 provides that

3. The purpose of this Act is to provide for

(a) the limitation, to a reasonable level and in a manner that is consistent with Canada’s international obligations, of the risks to national security, the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information; and

(b) the implementation in Canada of measures to which Canada has agreed respecting international control of the development, production and use of nuclear energy, including the non-proliferation of nuclear weapons and nuclear explosive devices.

Section 20 of the Act actually states that the Commission “… is a court of record”. Its use of the term “court” would imply a greater degree of institutional independence than would be accorded to an administrative tribunal otherwise.

The “nature of the problem” would be the question of whether the CNSC acted properly in refusing to permit AECL to restart its reactor without submitting a license amendment application that would have allowed it to operate with only 1 functional backup coolant pump, rather than 2, as set out in its license.

Finally, the question of the expertise of the Commission’s membership: The membership page of the Commission’s website would seem to indicate that 4 of its 6 current members include a chemist, a geologist, a doctor, and an engineer. The remaining 2 members are former politicians.

Summarized, we have 4 highly qualified, technically trained individuals and 2 former politicians who made a decision balancing Canadians’ interests in restarting the production of medical nuclear isotopes with their interest in doing so in a manner that does not pose an unacceptable safety risk. The Commission includes persons who would have experience with the political aspects of such a decision, and all members have security of tenure. The legislation under which they operate actually refers to the Commission as a court of record.

One would hope that the Commission’s work proceeds without political interference, since the Commission’s work involves serious questions of public safety. One has only to consider the impact of a disaster in the nature of Chernobyl and Three Mile Island.

On the whole, the legislation, at least by implication, would contemplate a significant degree of institutional independence. Mr. Lund and his government are, to say the least, misguided in their attempts to influence the Commission’s work in the manner seen here.

Linda Keen’s correspondence

Some coverage has criticized Ms. Keen’s letter as “caustic”. The real question is whether, from an ethical standpoint, her reaction to Mr. Lunn’s letter is appropriate.

While Ms. Keen is not a lawyer, her role is quasi-judicial, thereby making the Commission a participant in our judicial system.

Ms. Keen’s participation as an officer of the Commission would therefore require that her actions be governed by a professional standard, whether written or unwritten. While Ms. Keen is not a judge per se, as indicated, the legislation governing the CNSC describes the Commission as “… a court of record”. Accordingly, some guidance as to how members of the Commission should conduct themselves in office can be had from the Canadian Judicial Council publication entitled “Ethical Principles for Judges (1998)”. Chapter 2 of the Principles is entitled “Judicial Independence”, and reads as follows:

1. Judges must exercise their judicial functions independently and free of extraneous influence.

2. Judges must firmly reject any attempt to influence their decisions in any matter before the Court outside the proper process of the Court.

3. Judges should encourage and uphold arrangements and safeguards to maintain and enhance the institutional and operational independence of the judiciary.

4. Judges should exhibit and promote high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence.

The commentary instructs judges to vigilantly guard their independence, and to firmly reject any improper attempt by anyone – and it mentions politicians specifically – to influence their decisions. Measured by this standard, Ms. Keen’s letter is wholly justified. Indeed, she would have been seriously remiss in her duties had it not been sent.

What is more troubling, however, is the knowledge that this government has considered itself justified in attempting to influence the process and outcome of the Commission’s decision with respect to the AECL reactor. This action seriously undermines not only the independence of this tribunal, but casts a pall on the work of all other administrative tribunals over which the federal government has authority. No party can feel safe that a tribunal’s decision in any matter that it has before such tribunals will not be free from attempts on the part of the government to influence decisions according to the government’s philosophy of the day.

The tribunal members are in an equally uncomfortable position in that should they feel their application of the laws they are applying leads them in a direction not palatable to the government of the day, those tribunal members may find themselves in a situation similar to that which Ms. Keen faces today, where her position is threatened.

This government’s actions were, to be charitable, ill-advised. This government ought to be firmly encouraged to abandon any further action on the Chalk River matter, and to issue an apology to Ms. Keen.

One hopes that in the future, it will more carefully consider its involvement with particular cases before its independent tribunals.