The Society of Ontario Adjudicators and Regulators (SOAR) has now published its study of the impact on Ontario tribunals of the Ontario government’s new 10-year cap on the overall length of appointments.
The SOAR “Study on the Impact of the Government Directive on Term Limits for OIC Appointments” was approved by the SOAR Board of Directors this month and is now published on the SOAR website.
The Study may be found at:
And the Study’s appendix, where all the data is, may be found, at:
The government directive that is the focus of the study provides that the term of appointment of appointees to a given position on a regulatory or adjudicative agency is a maximum of 10 years. It also states that appointment to an additional term (beyond 10 years) may be made only in exceptional circumstances. The directive became operative in 2006.
SOAR confined its study to Ontario’s “large” tribunals – i.e., those with a full-time chair or executive chair and at least 20 OIC appointees. The Study identified 17 Ontario tribunals that meet those criteria.
The time of maximum impact varies from tribunal to tribunal, but, for most, the critical time is 2016/2017.
For Some: Inability to Fulfill Statutory Mandate
The study shows that the impact of the Directive will vary considerably among the 17 tribunals. For some, there will be a profound impact to the point that, if fully implemented, the Directive will mean that the tribunal will be unable to fulfill its statutory mandate. ….
Out of the 17 large tribunals, the study identifies seven that are most affected. These are all adjudicative tribunals – what Unjust by Design calls “judicial tribunals”.
The Study shows that within a year or two, WSIAT will lose 56% of its adjudicators, the OLRB 48%, the Landlord and Tenant Board 60%, the Consent and Capacity Board, 53%, the Human Rights Tribunal of Ontario 50%, the Social Benefits Tribunal, 47%, and the Criminal Injuries Compensation Board, 52%.
And, as a result, the average years of adjudicator experience in these seven tribunals will drop precipitately: respectively from 10 years to 3 years, 10.3 to 3.5, 8 to 3.2, 9 to 3.5, 6.2 to 3.2, 6.7 to 3.3, and 7.4 to 4.8.
Half of Adjudicators will have Zero Experience
As the study points out, when the average experience is reduced to 3.0 years, it means that half of the tribunal’s adjudicators will have zero experience with the tribunal.
Consequences Exacerbated by Inevitable Delays
Over the course of a year or two, it is believed that a total of 212 adjudicators from these seven tribunals alone will be removed from their positions. This assumes that all adjudicators will wait until their 10-year limit is reached before leaving, but, of course, faced with that looming deadline, many will leave earlier.
The experience level and the tribunal efficiency will also be affected by the inevitable delays in filling this large number of vacancies.
Concern was expressed by all of the chairs about the time that it may take to replace appointees who are lost as a result of the Directive. Chairs reported that in the last few years, the appointment and re-appointment process has slowed considerably. In the absence of some change, the Directive is going to lead to a substantial and unprecedented increase in the numbers of new appointments that will be required. Concern was expressed that managing the effects of the Directive will be further complicated if there are significant delays in the process of getting new OICs appointed to replace those who have left.
This suggests that there will need to be significant increases in resources at the Public Appointments Secretariat and the host Ministries, particularly the Ministry of the Attorney General, to ensure that open positions are filled quickly and efficiently. Obviously large numbers of unfilled adjudicator positions will further compromise the ability of tribunals to function.
Quantity and Quality of Decisions Affected
Concerns were expressed [by the Chairs) about the [tribunal’s] ability to maintain the quantity and quality of decisions. Substantial human resources will be required to recruit and train new appointees. For tribunals that require adjudicators to have a particularly high degree of subject-matter expertise, the learning curve can be steep. As a result, it can take several years before a newly appointed member develops the skills and knowledge to handle the more complex cases. This problem will be compounded by the fact that as a result of the Directive, many of the tribunal’s most experienced adjudicators, who would otherwise be used to help train new appointees and handle the more complex cases, will be gone.”
This Author’s Comment
One hears that serious efforts to bring this looming disaster to the attention of the Liberal government have so far garnered only assurances that the government is deadly serious about carrying this policy through, regardless of the consequences.
If true, the administrative justice system in Ontario is about to take a hit of incalculable proportions at the expense of Ontarians who are dependent on that system for the life-altering decisions about their rights that the Legislature has assigned to that system’s tribunals.
It is one more telling indication of the disdain** that politicians and bureaucrats feel for people who must go to the executive branch’s justice system for their justice and for the people who accept appointments as adjudicators in that system.
** I use the word “disdain” advisedly. The Oxford English Dictionary defines it as “the feeling that someone or something does not deserve one’s consideration or respect”.
Ontario is about to have visited on it the Federal system’s SST experience writ extremely large, and, as we have seen in the latter context, when a government breaks an adjudicative system there can be no quick fixes.