Administrative Justice In the Ford Era

A System in Crisis

As It Was On June 29 2018

Prior to Ford, and after Harris, Ontario had developed an administrative justice system in which patronage no longer ruled. Members of adjudicative tribunals had become professional career adjudicators selected for appointment through a statute-mandated, competitive, qualifications-contingent, merit-based process.[1] 

Appointed initially to a two-year term, successful adjudicator candidates could count on being routinely re-appointed – first to a three-year term and then to a five-year term – conditional only on their continuing to perform to the satisfaction of their chair. 

The only blemish in the system was the 10-year cap on the allowable total service, but even with that rule in play, at the end of their maximum years of service in one position, adjudicators might be exceptionally offered a further extension and, alternatively, having been timed-out in one tribunal, they were free to apply to other tribunals where their experience as an adjudicator would be valued and they could look forward with confidence to another 10 years of service.[2]  

It was also a system that appears to have been funded at levels that permitted the adjudicative tribunals to deal with their caseloads in an appropriate manner at a reasonably acceptable rate.

In short, it had become a system of justice characterized by fair hearings and good quality decisions rendered by competent, professional adjudicators, for the most part in a timely fashion.

      No more.

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[1] The selection process was embedded in legislation in 2009.  See the Adjudicative Tribunal Accountability, Governance and Appointments Act, 2009, SO 2009, c 33, Sch 5, section 14.

[2] For the principles of appointment and re-appointment that had come to be generally respected by governments in the post-Harris-pre-Ford era see SOAR’s Statement Of Principles For The Appointment Of Adjudicative Tribunal Members and SOAR’s Statement of Principles of Reappointment of Adjudicative Tribunal Members November 2018.  

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The Changes Since June 29, 2018

The Ford government’s radically different approach to the administrative justice system has so far been noticed most prominently in the administration of the 19 adjudicative tribunals that the government has collapsed into its new super tribunal – “Tribunals Ontario”. These include, for instance, the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, the Social Benefits Tribunal, the Ontario Review Board, the Consent and Capacity Board, etc.  

The changes in administrative justice policies that tribunals in this grouping are currently experiencing, or that the government has warned them to expect, include:

Budget Cuts

The tribunals have been told they cannot count on maintaining the current complements of approved adjudicator positions.   These are the complements that reflect what has been found to be necessary in the course of administrating these tribunals over the past 15 years.

Meanwhile, budgets are being operationally cut through a variety of means:

• By creating vacancies through refusing chair-recommended re-appointments of experienced adjudicators and delaying or refusing appointments to fill those vacancies;
• By converting established positions to lower-salaried positions, including changing full-time positions to part-time positions;
• By filling vacancies created by the refusal of reappointment recommendations with new members at the lower compensation levels applicable to new appointees.

Destabilizing Security of Tenure

The government has abandoned the policy of routine re-appointments to successive terms of appointment.  Members are being told they can no longer count on good performance ensuring successive re-appointments even within their ten years of allowed service.  There is to be no guarantee that chair re-appointment recommendations will be accepted.  The government warns that it will exercise its untrammeled re-appointment discretion as it sees fit upon the expiration of each term of appointment.  

The latter policy is being played out in real life as the government is routinely refusing to re-appoint incumbent members as their terms of appointment expire in the ordinary course. 

One-Year Terms 

The government prefers shorter terms of appointments and has been making initial adjudicator appointments for one-year terms. This is unprecedented in recent memory.  It is not yet known whether subsequent re-appointments will be for longer terms.  One-year terms, of course,  make mockery of any idea that administrative justice adjudicators should be seen to be independent of the government.  

The One -And-Done Rule

Tribunals have been told that members whose appointments expire because of the ten-year rule, or whose interim re- appointments are refused, will be deemed to be ineligible for appointment to other adjudicative tribunals.  This policy is said to be intended to prevent cross-pollination from tribunal to tribunal. 

Previous governments have thought that cross-pollination was a desirable thing.  Moreover, the availability of appointments at other tribunals for timed-out adjudicators was seen by previous governments as mitigating the negative implications of the 10-year cap for career-minded candidates.

The Unthinking Enforcement of the 10-year Cap

The Government directive that puts a 10-year limit on an adjudicator’s service in one position provides for exemptions to the rule when extensions beyond the ten years are essential in the public interest.  Prior to Ford, extensions were frequently granted where the non-renewal of key adjudicators would in the chair’s opinion put the tribunal’s ability to cope with its caseload in jeopardy.  The Ford government is now routinely refusing extension recommendations, and that coupled with the one-and-done rule, has led to the system being denuded of experienced adjudicators without regard for the public interest. 

Consequences

The consequences of these radical policy changes for the quality of justice in Ontario’s administrative justice system will include:

1. The Degradation of the Adjudicator Positions

The unexpected refusal of expected and recommended re-appointments has disrupted the careers of experienced adjudicators.  The refusals were also often achieved by simply allowing terms to expire without communications with either the adjudicators affected or with their tribunal chairs. 

This was shabby and undeserved treatment of people who had sought and won admission to their positions in the system, based, not on whom they knew, but on the testing of their qualifications in a competitive, merit-based selection process, and who had provided dedicated service to the system as professional adjudicators.

The disrespect for tribunal adjudicators thus evidenced is destructive of morale throughout the system and will have serious implications for the attractiveness of these positions as potential career options in the employment marketplaces to which any viable justice system must look for new candidates.

2. The Debasement of the Tribunals’ Competence

The new appointments policies have led to the system dismissing from its service a significant proportion of its most experience and capable adjudicators.  Vacancies abound and the experience level has taken a dive. 

Moreover, the disrespecting of the adjudicator position in the manner described above, coupled with the move to one-year appointments, and the renouncement of the policy of assured re-appointments conditional only on good performance, will ensure that the system will no longer attract optimally qualified candidates.  The best candidates will lose interest in light of the precariousness of the employment now on offer and the patronage seekers will prevail. 

These factors will also create a permanently distracted work-force with a tribunal’s roster of adjudicators always on the look-out for more stable employment opportunities elsewhere.

The net effect will be a dramatic reduction in the average years of experience in each tribunal’s roster of adjudicators.  In an operational, adjudicative environment in which it often takes as much as two years for even the most highly qualified new appointees to come up to speed, the negative impact on the overall tribunal competence is certain to be significant.

Then there is the distraction that these policies will cause to tribunal management as they are forced to switch their focus from delivering fair hearings and competent, consistent and congruent decisions to a preoccupation with recruitment, assessment, training, and close-supervision of a steady parade of new, less than optimally qualified appointees. 

3. Putting the Tribunals’ Independence in Issue

With these new policies in place, tribunal adjudicators will be known to be forever looking over their shoulders at their always looming re-appointment dates with reason to fear that the future of their adjudicative career depends not on the objective quality of their performance but on what the government thinks of them and their decisions. In these circumstances, parties and their counsel will have eminently reasonable grounds for apprehending a bias – at the very least an unconscious bias – in favour of the interests of the government and its ideological friends and allies.

4. Crippling Tribunal Capacity, Putting the Principles of Procedural Fairness in Issue

Adjudicate tribunals are already postponing scheduled hearings on the grounds of insufficient resources, and in their official communications are warning client communities that under-staffing will prevent them meeting previously promised service standards.

Rising backlogs will be the inevitable result, and to maintain these retrograde policies in the face of the political embarrassment that always comes with out-of-control backlog numbers the government may be expected to impose sharply reduced service standards. These are likely to include time-limits on hearings or on decision-writing that may not be compatible with the principles of fair hearings or with fully reasoned decisions, and, no doubt, sharp reductions in the availability of in-person, oral hearings.

Next: Common-Law remedies. 

RE