Administrative Justice – Back to the Future

INTRODUCTION

Twelve years ago – in January 2008 – the University of Toronto Faculty of Law, supported by the Law Foundation and Legal Aid Ontario, hosted a two-day Symposium entitled “The Future of Administrative Justice”.  Lorne Sossin, now Justice Sossin of the Ontario Superior Court, but then a professor at the UofT Faculty of Law, and a member of the Symposium organizing committee, wrote a detailed report on the Symposium’s highlights.  His report was subsequently published in the Canadian Journal of Administrative Law & Practice (21 C.J.A.L.P 193) and may also be found at the following link.  https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3291&context=scholarly_works.

The implicit relevance of the papers presented at that Symposium and of the discussions that followed, as reported by Sossin, to the issues in the Ford government’s administrative justice system  may be seen in the Report’s Table of Contents.

SYMPOSIUM REPORT TABLE OF CONTENTS

FUTURE OF ADMINISTRATIVE JUSTICE SYMPOSIUM

TABLE OF CONTENTS

Keynote address

Lord Justice Robert Carnwath (Senior President of Tribunals, U.K.)

New Frontiers of Merit in Tribunal Appointments

Moderator: Lorne Sossin, Professor, Faculty of Law, University of Toronto

  • Judith McCormick (Downtown Legal Services)
  • Dr. Lilian Ma (Landlord Tenant Tribunal)
  • Michael Gottheil (Ontario Human Rights Tribunal)
  • Debra Roberts (Public Appointments Secretariat, Ont. Gov’t)

Current Issues in Tribunal Independence

Moderator: David Mullan, Queens/ Toronto Integrity Commissioner

  • Ron Ellis (Osgoode Hall Law School)
  • Laverne Jacobs (University of Windsor)
  • Audrey Macklin (University of Toronto)

Commentator: Adam Dodek, Osgoode Hall Law School

New Developments in Tribunal Reform

Moderator: Justice John Evans, Federal Court

  • Lord Justice Robert Carnwath (Senior President of Tribunals) “Lessons from the U.K.”
  • France Houle (University of Montreal) “Lessons from Quebec”
  • Dean Philip Bryden (University of N.B) “Lessons from B.C.”
  • Ivana Petricone (ARCH) “The Situation in Ontario”

Commentator: Cristie Ford (UBC)

Roundtable Discussion on Next Steps to Reform

Moderator: Kathy Laird (Ontario Human Rights Tribunal)

The Table of Contents also refers to ‘Appendix A” which is a description of a proposed “Administrative Justice Bibliography” (AJB).  However, that project never got off the ground.

“THE FUTURE” – TWELVE YEARS LATER

The place of the 2008 Future of Administrative Justice Symposium in the chronological flow of events is interesting.  It was held about four years after the end of the Harris government’s abuse of the system (thus well into the McGuinty/Wynn administrative justice renaissance period) with still about 10 years of the latter regime to go.  In those circumstances, there was an understandable degree of complacency among the presenters.

This author, a presenter at the Symposium, was still nattering on about the importance of constitutionally protected structures for the independence of adjudicative tribunals and their members, but some, fearful of the over-judicialization of the tribunals that might follow the structural restrictions that constitutional protection might demand, were sanguine about the fruits of co-operation between tribunals and their host Ministries as an option to law-constricted structures.

In one response to the latter theme, this author offered the following reported comment which, from the perspective of the Ford government’s administration of the administrative justice system today, might be thought to have been somewhat prescient:

What troubled him, the Report notes, is that

… such [co-operative] arrangements are … idiosyncratic and contingent on particular persons and a particular political environment. At the moment, we are living in a renaissance period in Ontario. But the [troubling question] is what happens when the government changes? Without some legal structure in place, you can suddenly wind up with dysfunctional, uncaring tribunals.

It can all turn on a dime.

And, in June 2018, ten years later, when Premier Ford first took office, it did, of course, all turn on a dime.

And now the Ford government’s apparently legally un-constricted maladministration of the administrative justice system** presents fresh evidence as to why Canada’s justice system requires rule-of-law, constitutionally-guaranteed, and culturally embedded,  structural protections for the independence – and competence – of its adjudicative tribunals.

** For a recent example of the rubber of that maladministration hitting the road, see the following link: https://www.cbc.ca/news/canada/windsor/landlords-tenants-ontario-tribunals-adjudicators-paralegal-1.5489275

 

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