THE CAP TSUNAMI
It is time that this site turned its reader’s attention to the looming appointments tsunami for Ontario tribunals. I refer to the 10-year cap on tribunal service for OIC appointees; a policy introduced several years ago and whose chickens are coming home to roost in a big way in 2016/2017.
THE DISASTROUS IMPACT ON ONE MAJOR TRIBUNAL
I plan to address the contentious policy issues which a cap on tribunal service presents in general in later posts, but to set the table for that discussion let me begin by presenting the results of some empirical research on the effect the policy will have on one of Ontario’s major tribunals. The data has been gleaned from the appointment data to be found on the website of Ontario’s Public Appointments Secretariat.
As of this week, the website shows that on this tribunal the number of full or part-time adjudicators appointed by Order in Council is 68.
The average of the number of years of experience of those 68 adjudicators is 10.
The ten-year rule has been deemed by the government to be operative as of 2006, so the first year it will impact directly is in 2016.
FROM TEN TO TWO
If the 10-year rule is applied to this Tribunal’s adjudicators in all its rigor, and there is currently every reason to think that it will be, then, by the end of 2017, the rule will have removed 47 (70%) of the tribunal’s current adjudicators including 13 of the 15 full-time adjudicators. It will have reduced the average adjudicative experience on this tribunal from ten to 2 years.
This, in a tribunal where, as in most tribunals, it takes 2 years or more for new adjudicators to get to the point where they can be trusted to act on their own.
And, naturally, if the average experience is 2, there will be a large proportion of adjudicators – in fact, in this case, approximately 47 out of 68 – with less than one year’s experience.
Second-order question: if 47 out of 68 experienced adjudicators are to be sent away, who will train and mentor the 47 new adjudicators?
Third-order question: Who will produce the number of decisions the tribunal will need if it is to keep up with its caseload?
And, of course, the adjudicators in this tribunal, like those in so many others, are mandated to make decisions that are inherently life-altering for those who appear before them.
Many of Ontario’s major tribunals will be affected in a similarly disastrous way.
Clearly, this is not an acceptable outcome. Indeed, it should not be difficult for the advocates out there to imagine Charter or other legal issues that would present themselves if the government maintained its current course.
So, what, one might ask, is to be done about it?