The Emasculation of Tribunals Ontario Cases in point and a Projection

The First Case in Point: The Landlord and Tenant Board

“Ombudsman to probe rent tribunal backlog – Number of complaints about long delays at Landlord and Tenant Board has surged”  –  Toronto Star, January 10, 2020

And so it begins….

The Ombudsman should not have far to look.

Consider:

WHAT IT WAS

On March 31, 2018, about three months before the new government was elected, the Landlord and Tenant Board had SIXTY TWO adjudicators, including an experienced Associate Chair.*

*See Social Justice Tribunals Ontario’s annual report for the fiscal year ending March 31, 2018.   Note: the count of members, here and below, does not include Tribunals Ontario’s Executive Chair, whose name appears on the list of members for each of the tribunals.

WHAT IT IS NOW*

* As of January 11, 2020

In less than two years, this government has removed THIRTY NINE of those adjudicators (i.e., 60%), including the Associate Chair,  and replaced them with FOURTEEN new appointees.

The Board’s adjudicator roster now numbers THIRTY SEVEN* of whom only TWENTY THREE  were with the Board on March 31, 2018.  And the appointments of 10 of the latter will expire in the next few months.

Since the Public Appointments Secretariat is not currently advertising vacant LTB positions, it appears that thirty seven is the number of members the government deems necessary, thus indicating an intended 40% reduction in the adjudicator resources to be assigned to the Landlord and Tenant Board.

The implications of that reduction for the Board’s performance are all the more serious because half of the current members have less than two years of experience on this Board, and it is generally accepted that two years of training, mentoring and supervision is needed before a new member becomes a fully competent adjudicator

                *See the Public Appointments Secretariat data for the Landlord and Tenant Board for January 11, 2020.

The Second Case in Point: The Human Rights Tribunal

WHAT IT WAS

On March 31, 2018, the Human Rights Tribunal of Ontario had SIXTY SIX  adjudicators, including an experienced Associate Chair.*

                 *See Social Justice Tribunals Ontario’s annual report for the fiscal year ending March 31, 2018. 

WHAT IT IS NOW

In less than two years, this government has removed FORTY EIGHT of those adjudicators (i.e., 73% ), including the Associate Chair,  and replaced them with NINETEEN new appointees.

The Tribunal’s adjudicator roster now numbers THIRTY SEVEN * of whom only EIGHTEEN are adjudicators who were with the Tribunal on March 31, 2018.  And the appointments of 8 of the latter  will expire in the next few months.

Since the Public Appointments Secretariat is not currently advertising vacant HRTO positions, 37 is presumably the number of members the government deems necessary, which represents a 44% reduction in the number of adjudicators to be assigned to the Human Rights Tribunal.

The implications of that reduction for the Board’s performance are all the more serious because 24 of the 37 sitting members have less than two years of experience on this Tribunal, and, as mentioned above, it is generally accepted that two years of training, mentoring and supervision is needed before a new member becomes a fully competent adjudicator

                *See the Public Appointments Secretariat data for January 11, 2020.

PROJECTING THE FIGURES FOR

TRIBUNALS ONTARIO OVERALL

 

FOUR HUNDRED EXPERIENCED ADJUDICATORS REMOVED

 

TWO HUNDRED NEW ADJUDICATORS APPOINTED

 

NET REDUCTION IN NUMBER OF ADJUDICATORS: 40-50%

 

AVERAGE ADJUDICATOR EXPERIENCE UNDER TWO YEARS

 

Tracking the appointments history for each member of a given tribunal from March 31, 2018 to January 2020 is hard work.*  And, tracking that history for each of the hundreds of members serving on the other 17 tribunals in Tribunals Ontario is harder still.

                      * See below. 

Thus, it is difficult for anyone outside of government to get an accurate overall picture.  But there is little reason to think that the Landlord and Tenant Board and the Human Rights Tribunal have been singled out for special treatment.  And, based on the feedback one receives from time to time from friends and former colleagues now in the system, or previously in the system, it is not unreasonable to assume that the tracked appointments histories of the Landlord and Tenant Board and human Rights Tribunal members will be generally, proportionately reflective of the appointments histories of the members of the other 17 tribunals in Tribunals Ontario.

Applying, then, the tracked appointments histories of the Landlord and Tenant Board and of the Human Rights Tribunal since March 31, 2008, to the other 17 tribunals in Tribunals Ontario as templates generally predictive of the history to be expected for each of those tribunals, it is reasonable to project that since June 2018 the Ford Government has arbitrarily removed from Tribunals Ontario something in the order of 400 experienced, full-time and part-time adjudicators, and replaced them with about 200 inexperienced appointees, bringing the average adjudicator experience down to less than 2 years.

Is this a manufactured crisis, leading to what?

A cut of 40-50% in adjudicator resources, and the removal of 60 or 70% of the experienced adjudicators, will inevitably prevent any tribunal from coping with its incoming caseload, with a surge in complaints, of course, inevitable.

Obviously, the government will  have known what to expect.  What we have here, one might therefore venture to suggest, is a manufactured crisis; a crisis designed, perhaps, to build support for radical “efficiency” reforms of the tribunals’ hearing processes that will in turn be relied on to justify radical budget cuts; reforms that may be expected to push fair-hearing principles to the very edge.

Stay tuned.

Not to mention the inevitable decline in the quality of decisions

And then there is the preordained reduction in the quality of Tribunals Ontario’s adjudicative decisions caused by the inexperience of the adjudicators, the pressure to get cases over quickly with dramatically reduced resources, and the absence of experienced members to do the mentoring, training and supervising.

Sad times for those depending on Tribunals Ontario for justice in their every-day lives.

*Tracking Appointments

To track the appointments history for any of the Tribunals Ontario tribunals, start with the list of members of that tribunal to be found in the annual report of the cluster to which it belonged for the year ending March 31, 2018.  That report shows, for each member serving during that year, the date of their original appointment and the date on which their then current appointment is due to expire.

Then trace the fate of each of those individual members of that tribunal through the annual report of Tribunals Ontario for the fiscal year ending March 31, 2019 (where you will find the same information for the members serving that tribunal during that year) and then to the current Public Appointments Secretariat data for that tribunal.

RE