Administrative Justice – Ford’s Abuse – Terminological Reflections

First, a Respectful Nod to the Virus

In the midst of this COVID-19 crisis it is hard to focus on other things and difficult to muster interest in issues that are unconnected with keeping one’s family and friends safe, staying well, worrying about the welfare of the essential workers on the front lines, and getting our society back on its feet.  But presumably, we will get through this, and since I have nothing to contribute to the main event but to stay at home, I thought I might as well carry on with addressing the administrative justice issues even though they have now receded into the background of public attention.  Those issues are still out there and, given the stress the pandemic will be placing on our various statutory rights enterprises of which our tribunals are the judicial enforcement arms, they can be counted on to become of even greater importance as time goes by until the virus finally goes to wherever viruses go when they have done their damage and played themselves out.

To those visitors who happen upon this post: thank you for your interest; stay well and keep on keeping on.

INTRODUCTION

I have been reflecting on how it is that, in the 20 months of the Ford government’s regime before the virus took over, the despoiling of our administrative justice system got so little public ink, so little public reaction, even from the bar itself.  And I have concluded that the problem may be in large measure terminological

WHERE WE GO WRONG

Looked at straight, from the perspective of the public’s ear, the profession’s in-house terminology is arcane and obfuscating:

We refer to: “administrative justice” when we should just be talking about “justice” – there is nothing “administrative” about it.

We refer to “the administrative justice system” when we mean “the justice system”, as in “tribunals are part of the justice system”.  (See Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585 at para. 22.)

We refer to “adjudicative tribunals” when we mean “judicial tribunals” or “justice-system tribunals”, or perhaps simply “tribunals”. (See the Ratushny Report’s recommendation that the label “tribunal” should be reserved for judicial tribunals only.)

We refer to “tribunal adjudicators” when what we truly mean is “tribunal judges”.

And, we refer to “the refusal of reappointments of adjudicators” when what is really happening is “the ‘discharge’, ‘dismissal’ or ‘firing’ of tribunal judges without cause”.

“RIGHT TO THE PURPOSE”

Moreover, we have no word to describe what a judicial tribunal is when it is what one would want it to be – as in: “this tribunal is …”.

“Righteous” is what we are getting at, but it is too pretentious to say so.

 “Good” captures most of what is meant if one takes the dictionary definition of “having the qualities required for the purpose”, but, standing alone, “good” is ambiguous;

“Just” is technically a fit, but standing alone it too is ambiguous – e.g., to say that “a tribunal is just” invites from a puzzled lay person: “just what?”.

In short, something new is needed and I propose: “right to the purpose” as in: “This tribunal is (or has been kept) right to the purpose”.   The lay response would still be quizzical but the natural questions: what is “the purpose”? and, “what is a tribunal when it is right to that purpose”? might serve to provoke useful discussions in lay terms.

WHAT IT TAKES

A justice-system tribunal is right to the purpose when parties who appear before it, and their representatives, have no reasonable grounds for doubting that:

  1. The tribunal is led by a qualified, competent, non-partisan chair;
  2. The tribunal has:
    1. sufficient, relevant expertise,
    2. optimal competence, and
    3. implicit independence;
  3. The tribunal’s judges are non-partisan, confident about the security of their tenure, and free of bias;
  4. The tribunal’s decisions will be:
    1. well-reasoned,
    2. persuasive,
    3. demonstrably impartial,
    4. demonstrably congruent with the evidence and with the tribunal’s jurisprudence and the law, and
    5. published in a format that is research friendly; and
  5. The tribunal’s decisions will be reached pursuant to a hearing process that is not judicialized but is:
    1. fair,
    2. proportional,
    3. efficient, and
    4. timely.

IT CANNOT BE RIGHT IF IT’S WRONG TO THE PURPOSE

What has happened, and what the public needs to hear (eventually), is that the Ford Government has, through perverse, partisan policies, including the firing of large numbers of tribunal judges, rendered many of Ontario’s judicial tribunals wrong to the purpose.

It is an enlightening exercise to go through each of the various elements that make a judicial tribunal right to the purpose and to consider the grounds that parties or their representative now have for reasonably doubting the existence of most of them. (See, perhaps, a future post.)

REFUSALS TO REAPPOINT SHOULD NOT BE THE MAIN FOCUS

From a tactical perspective, a complaint that the government’s policies have rendered Ontario’s judicial tribunals wrong to the purpose is more focused on the main point than a complaint that the government has refused to reappoint adjudicators.

When one talks about the refusal to reappoint numbers of adjudicators, what the lay public and media hear is self-centered complaints from the beneficiaries of the traditional appointments game in some obscure “administrative” system, who now take their expected turn as the losers, thus inviting responses like that in the Toronto Sun’s editorial of January 26:

“Okay, everyone. Deep breaths.

Patronage appointments are a fact of political life.

When a new government is elected, you can expect to see the old political appointees swiftly head for the exits and the new ones enter via the front door.

It happens in all governments; every time there’s a regime change.

So let’s give up the faux outrage when premier Doug Ford exercises his legitimate right to put in place people who will implement the platform he was elected to deliver.”

The Sun’s editorial is fair comment with respect to appointments to regulatory agencies, including perhaps the Human Rights Commission, but when it is directed to appointments to judicial tribunals or justice-system tribunals like the Human Rights Tribunal, it is comment that is irresponsible and mischievous to the nth degree.

CONCLUSION

It is an egregious fact that what the Ford government has done – is doing – is to render our justice-system tribunals wrong to the purpose, and after the pandemic is over, it will be important  to make that clear.  One might hope to start, after the pandemic is over, with the Headline:

400 Tribunal Judges Dismissed Without Cause

 

 SIDE NOTE FROM 1997

During the Spring and Summer of 1997, the new Progressive Conservative government in Ontario made a number of decisions refusing reappointments  of adjudicative members at WCAT (now WSIAT) and the OLRB.  This author, then WCAT’s Chair, and then rather quickly no longer WCAT’s Chair, found himself making a number of speeches at various events during the Fall and Winter criticizing the government’s reappointment and appointment policies.  These speeches were subsequently published in the Canadian Journal of Administrative Law & Practice, 1997-1998 as one article, under the title: Appointments Policies In The Administrative Justice System Lessons From Ontario Four Speeches” – 11 Can. J. Admin. L & Prac. 205-258.

The latter article is one of the 30 in the Ron Ellis Archive located on the CCAT website.  If you were looking for it, you would go to CCAT’s website at http://ccat-ctac.org/home,  then to the drop-down menu under “Resources & Opportunities”.  The article in question is No. 5 on the Ellis Archive list.

The reason I mention it here is that in the first of those Four Speeches I had found it necessary to defend the proposition that a refusal of an expected reappointment could be correctly said to be a “dismissal”.  The relevant paragraph which may be found on page 4 of the No.5 paper reads as follows:

Some may question my use of the word “dismissal” when what occurred can be seen to be merely a refusal to renew a limited-term appointment. But in the context of [a judicial tribunal] in which regular renewal of appointments is not only an entrenched tradition but also an essential and integral element of the [tribunal’s] operational environment, characterizing an unexplained refusal to renew the term of a particular adjudicator as a “dismissal” is, in my view, correct usage.

It is distressing to face the fact that, over a period of nearly 25 years, the Ontario Progressive Conservative Party’s deep disrespect for the tribunals part of our justice system has continued unabashed.

RE

 

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