3. Effective Decision-Making

A Tribunal decision should follow a clear and consistent process.Step 1 — Identify the Decision

Clearly identify the question the Tribunal is being asked to decide.

Ask: What decision is actually before us?

The Tribunal should remain focused on the issue within its authority and avoid deciding matters that are outside the scope of the proceeding.

Step 2 — Confirm Authority

Before considering the outcome, confirm that the Tribunal has the authority to make the decision.

Consider:

• What provision of the Election Act or governing rules gives the Tribunal authority?

• Are there limits on that authority?

• Have the required procedures been followed?

Step 3 — Gather the Relevant Information and Evidence

Review the information that is relevant to the matter.

This may include:

• written submissions;

• oral evidence;

• documents and records;

• witness information;

• applicable provisions of the Election Act;

• Tribunal policies and procedures; and

• other information properly before the Tribunal.

Tribunal members should distinguish between evidence and personal knowledge, assumptions, rumours, or outside information.

Step 4 — Ensure a Fair Process

Before making a decision, consider whether the parties have been treated fairly.

Ask:

• Did the parties understand the matter being considered?

• Did they have an opportunity to provide relevant information?

• Were conflicts of interest appropriately addressed?

• Was the process impartial?

• Did the Tribunal consider the relevant information before it?

A fair process strengthens both the decision and community confidence in the Tribunal.

Step 5 — Consider the Available Outcomes

Identify the decisions or remedies that are available within the Tribunal's authority.

Consider the evidence, applicable rules, circumstances of the case, and the potential impact of each available outcome.

Where appropriate, Tribunal members should also consider the Nation's Cree principles and values, relationships, accountability, restoration, and community well-being.

Step 6 — Make the Decision

Tribunal members should discuss the matter respectfully and make their decision according to the Tribunal's established voting requirements.

Members should be prepared to explain:

What did we decide, and why did we decide it?

Step 7 — Record and Communicate the Decision

The Tribunal's decision should be properly documented.

The record should clearly identify:

• the issue considered;

• the decision made;

• the basis for the decision;

• any applicable conditions, directions, or remedies; and

• any required next steps.

Clear records promote accountability, consistency, transparency, and institutional memory.

Step 8 — Reflect and Learn

• Did our process work well?

• Were our procedures clear?

• Were there gaps in our policies or practices?

• Is additional training required?

• How can we strengthen the Tribunal for future matters?

The Importance of Your Role

Being a Tribunal member is more than casting a vote. You are entrusted with exercising authority established by the people of Ochapowace. Every decision contributes to how community members experience and understand their own governance institutions. Strong Tribunal decision-making requires authority, fairness, independence, accountability, respect, Cree principles and values, and courage in making difficult decisions. The goal is not simply to make a decision. The goal is to make a decision that the Tribunal has the authority to make, through a process that is fair, respectful, informed, and worthy of community trust.

How to Write a Good Decision

It is important the Ochapowace Community Tribunal is documenting their decisions. Record keeping preserves integrity of the tribunal and it upholds fairness. To ensure there is consistent application of the law and or to help understand room for circumstances and restorative justice. Overall, writing decisions is a responsibility of the tribunal. The Tribunal establishes a clerk that can be responsible in absence that will be the responsibility of the chair.

Plain Language

• Use plain language, presented in an organized and clear format.

• Write short sentences.

• Say what you have to say, and no more. This means avoiding flowery or unnecessary language.

• Write with an active, not passive, voice.

• Use simple, everyday words. Spell out acronyms, and avoid technical terms and jargon. 

  Avoid Common Pitfalls

  As a decision-maker, you can encounter stressful and emotional situations.  Still, it’s necessary to keep those feelings and emotions out of your decision.  Remember, decisions are made based on the application of legal and administrative principles to the facts in a case.

  • Decisions should avoid relying on irrelevant considerations, and emotionally-charged statements and comments.

  • Avoid accusatory or demeaning language, and maintain a professional tone.  Use proper names and titles, and avoid referring to parties by their first name.

  • Read your decision several times before sending it, and don’t be afraid to re-write it if it doesn’t seem clear to you, or if it raises other questions.

  • Check your grammar and spelling: repeated errors in spelling, word usage, and grammar can distract the reader from an important and often serious message.  Always double-check your facts.  Is the legislation titled correctly?  Are dates accurate?  If possible, ask a co-worker to review your letter.  Another pair of eyes can spot mistakes or errors you might have missed.

  • Decisions should be logical; they should state not only the “what” but also the “why”.

    Preliminary Issues

    This part of the decision is more typically applied in tribunal situations.  Here the decision-maker covers a number of important steps that should have occurred at the hearing, including:

    • Clearly articulating your legal authority in the written decision;

    • Determining whether there were objections to the members of the panel, or its jurisdiction to hearing the appeal;

    • Ensuring all parties are provided with the same information; and

    • Ensuring all parties have had sufficient time to prepare, and are ready to proceed with the hearing.

    Legislative References

    Where possible, legislative references should be specific, and clearly indicate the relevant provisions considered in legislation and/or policy.  For example, in a case of eligibility under the Assured Income for the Severely Handicapped Act in relation to income for severely disabled adults, the references could include:

    • Sections 1(1)(a) and 3(3) of the AISH Act

    • Sections 2, 3 and 4 of the Assured Income for the Severely Handicapped General Regulation; and/or

    • AISH Program Policy: Eligibility Criteria.

    Submissions

    This part of the decision should set out the main arguments of the parties involved.  Be careful not to confuse the parties’ submissions with findings of fact.  It is important to identify the parties’ submissions since a frequent complaint is that the decision-maker failed to consider all of the relevant arguments.

    All the materials the decision-maker and parties considered should be itemized in the decision.  Documents should be labeled in such a way that they can be readily accessed by the reader.

    Analysis

    All written decisions should contain a section which sets out how the decision-maker arrived at the decision.  The important components of an analysis are:

    • Reasons for decision;

    • Findings and how they are supported by the evidence; and

    • Reason why the parties’ submissions were accepted or rejected.

    The most common problem with written decisions is that they do not provide reasons or rationale.  Instead, they often reach a broad conclusion without supporting rationale.  In situations where there is conflicting evidence, the reasons should identify the decision-maker’s rationale for giving one piece of evidence more weight than another.  As the decision-maker, ask yourself these questions:  “Why did I accept this piece of evidence over another?  Why was a certain piece of evidence more relevant in relation to the specific legislation?”

    As Sara Blake, a recognized expert on administrative law, points out:

    “It is not sufficient to outline the evidence and argument and then state the tribunal’s conclusion.  Nor is it sufficient to repeat the applicable statutory provisions.  That does not reveal the rationale for a decision.  The most common fault in tribunal reasons is the failure to explain ‘why’.  With respect to each important conclusion of contested fact, law and policy, the reasons should answer the question, ‘Why did the tribunal reach that conclusion?’  Most importantly, reasons must explain why the material aspects of the position advocated by the losing party were rejected.

     “Reasons need not be lengthy.  In most cases, a few sentences explaining the rationale for each material conclusion is sufficient.  Reasons need not be given on every minor point raised during the proceeding nor must reference be made to every item of evidence…A transcript of the tribunal’s deliberations is no substitute for reasons, as it reveals only musings and observations by the panel members without coherently explaining the rationale agreed to by the panel…”[1]

    Finalizing a Decision

    The name and title of the decision-maker must be clearly identified in the decision document, and the decision-maker should sign his or her name to the document.

    If the decision is the result of a panel hearing, it must outline the people in attendance at the hearing, including the chair and panel members, authority representative(s), the authority’s witness or lawyer, the appellant, the appellant’s lawyer or advocate, and any other witnesses.  Observers should also be identified.

    If there are available avenues of review or appeal, statutory or otherwise, they should be explained to the applicant either in a covering letter attaching the decision or in another clearly-worded format.