Administrative Justice Capology – Capping an Adjudicator’s Years of Service: Can we Think of a Reason?

INTRODUCTION

Readers will have seen from an earlier post that, in Ontario, over the next two or three years, the government’s new 10-year cap on every tribunal adjudicator’s appointments is likely to become the subject of some controversy.

I am, of course, aware that the federal administrative justice system has long had a 10-year cap on adjudicator appointments and other provinces have similar policies. I believe that Alberta’s cap is 12 years.  But the merits of having such a cap have never had the attention they surely deserve, and, at least from Ontario`s perspective, this seems to be a convenient time to be thinking about all the good reasons for having a cap – say, a 10-year cap – on a tribunal adjudicator`s years of service.

There are, of course, a number of striking advantages that might occur to anyone who gives the cap idea a moment’s thought.  The following are those that have occurred to me.

           21 Reasons for Capping an Adjudicator’s Service at 10 Years

1. At ten years, adjudicators have learned all there is to know about their tribunal’s field of expertise and are as good at adjudicating as they are likely to get.  It, therefore, makes perfect sense to move them on to something else.

2. A 10-year cap can also be counted on to encourage the best of a tribunal’s adjudicators to accept other challenges even earlier – probably at the end of their seventh or eighth years – thus creating even more opportunities for less experienced adjudicators.

3. Since it takes only two or three years for a new adjudicator to be fully operational, it should not be necessary to allow a tribunal’s average years of adjudicative experience to exceed five years (and we can count on a 10-year cap to do that). This will minimize salary budgets and keep the tribunals’ training skills sharp.

4. A cap also helps with our party-system of government by ensuring that, every year, the party in power can count on having hundreds of routinely vacant OIC positions to fill.

5. A cap has the advantage, as well, of ensuring that tribunal managers are constantly stimulated by the opportunity for filling multiple adjudicator vacancies every year while competing in the professional job market with the challenge of having career-limiting 10-year-caps on offer.

6. After ten years in one job people might become jaded and, unlike Provincial Court or Superior Court decision-making, we know that tribunal decision-making is too important to risk entrusting it to the possibly jaded – to the
inexperienced and unqualified, yes, but not to the possibly jaded.

7. The caps on a tribunal adjudicator’s time of service may also prove to be a useful precedent for other positions where there is a risk of jaded performances – public-sector lawyers come to mind, perhaps the administrators of social benefits, certainly dentists.

8. The cap also solves the problem of mediocre adjudicators generally. These are the adjudicators who are not bad enough to justify a chair’s trouble in defending the refusal of their re-appointments at the end of any of their fixed terms, but bad enough that the chair nonetheless wants them gone. The cap ensures that mediocre adjudicators will adjudicate other people’s rights for only ten years.

9. It might, of course, be good to have a selection process that would optimize the possibility of appointing in the first place adjudicators who would not be mediocre but governments can’t be expected to have the money for that…

10. And, even if a fair and objective performance evaluation system would ensure that only adjudicators who are not mediocre or not jaded have their appointments renewed, governments can’t be expected to have the money for that either …

11. Newly elected governments need the routine vacancies that a cap produces so that they can get their own people into these tribunals as fast as possible; so do newly appointed chairs.

12. It is not fair that one person has an adjudicative appointment for more than ten years; other people need a chance.

13. It is also clearly an advantage to have in our adjudicative tribunals the permanent culture of temporariness that a cap instills. That culture will help to ensure that each of a tribunal’s adjudicators, always having to be on the lookout for more permanent opportunities, can be counted on to moderate their decision-making with a view to staying onside with potential employers, including governments – perhaps especially governments.  This will minimize the embarrassments that occur when adjudicators, forgetting their own interests, take their notional independence too much to heart.

14. A cap optimizes the possibility that tribunal adjudicators will bring to their work the advantage of senior life experience; serving out the last ten years of their careers prior to retirement, or embracing a part-time tribunal appointment as a retirement opportunity.

15. Caps serve to give as many citizens as possible the opportunity for public service in the determination of other people’s legal rights.

16. Caps serve particularly to give deserving citizens who don’t themselves have permanent career options an opportunity for ten years of interesting work deciding other people’s legal rights – an opportunity they might not otherwise have had.

17. Caps also minimize the chance that professionals who are in fact fully qualified for a challenging permanent career might accept an appointment as an adjudicator.  In an administrative justice system where the rule of law has been relegated to the status of an ignis fatuus, people like that will inevitably prove an awkward fit for adjudicative tribunals.

18. A cap will discourage abuse by governments of their arbitrary re-appointment powers (at the end of adjudicators’ fixed terms) by assuring them that hundreds of these positions will automatically come open every year without their having to take any untoward steps.

19. There is, of course, a need to keep a tribunal’s face fresh, relative to the changing face of the province and this need can be addressed through the routine opportunities a cap will provide for the appointment of members of emerging communities seeking a Canadian career. However, we need to be careful about encouraging anyone to think of an appointment to a tribunal adjudicator position as the basis for an actual career, and, fortunately, the known existence of a 10-year cap will keep the limited career potential of these appointments clear to all.

20. A cap will help to spread the system’s adjudicative experience around by encouraging appointees nearing the end of their ten years in one expert tribunal to seek junior adjudicative positions in tribunals specialized in a different field of expertise.

21. Finally, we, of course, don’t want governments to have to repeat the experience many of them have had in the past of dealing with tribunals bolstered in their quality and independence by the absence of any cap on the number of their members’ re-appointments. (In my province I think in this connection of the Labour Relations Board, the Securities Commission, WSIAT, and, in the pre-Harris days, the OMB.)

There must be more good reasons, but I cannot just now think of them. I would, however, value other suggestions.

RE (administrative justice system capologist)

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