Voy Stelmaszynski is a retired lawyer with over 25 years’ experience in the tribunal sector of labour and employment, primarily with the Ontario Labour Relations Board, Past President of the Society of Ontario Adjudicators and Regulators, and recipient of the 2017 Tom Marshall Award of Excellence for Public Sector Lawyers from the Ontario Bar Association.
He has graciously agreed to have his article, A Cautionary Tale, reproduced here for the benefit of this site’s readers.
Originally published in the Canadian Arbitration and Mediation Journal; reproduced here with permission from ADR Institute of Canada – ADRIC.ca
Administrative Justice in Ontario: A Cautionary Tale
by Voy Stelmaszynski
If a person residing in Canada has filed a complaint about their human rights, if they have a disagreement with their landlord or tenant, or if they think their employer has not paid them their proper wages, there’s a very good chance their claim will be mediated or heard and decided by a member of a tribunal. Administrative justice—the use of specialized tribunals to determine people’s rights and responsibilities—is well established in Canada, and as Professor Ron Ellis has said, “Administrative justice is justice.” As such, and like other credible systems of dispute resolution, it needs to be adequately resourced and perceived as independent.
As someone who served as counsel to an administrative tribunal for over 20 years, I know firsthand how important resources and independence are to a stable, well-functioning organization. Partisan considerations should not be the dictating force that populates administrative tribunals, and members should not have their appointments revoked merely because a government changes, whether at a provincial or a federal level.
In Ontario, as in other Canadian jurisdictions, more citizens have their disputes determined by administrative tribunals than ever see the inside of a court room. Ontario’s tribunal system—and there are over 100 different adjudicative agencies, boards, commissions and regulators—is a vital part of the justice community. But it is often overlooked in discussions of provincial responsibility. The provincial government is mandated to appoint decision makers to tribunals. While decisions made by judges appear in newspapers and other media reports, the day-to-day decision-making of people’s everyday lives occurs in tribunals and is rarely the subject of a media report. Mediators and adjudicators “in the trenches” are really some of Ontario’s unsung heroes.
Unfortunately, the stability of Ontario’s system of administrative justice system is on shaky ground. Many decision makers—professionals well versed in their subject matter and committed to helping citizens resolve their disputes (and some of those disputes are with government offices or agencies)—have been removed from their positions and vacancies are not being filled in a timely manner.
The Advocates’ Society identifies independent institutions as crucial to a robust democracy.[1] In the fall of 2019, it published a letter it had addressed to the Attorney General of Ontario, raising concerns with a proposal to alter the way judges are appointed and warning that judicial independence and the arm’s-length status of the court system was imperiled.[2] Similar concerns apply to the tribunal community. Delays in filling the spots resulting from tribunal appointments that were revoked or not renewed has resulted in significant tribunal backlogs and the postponement of hearings for lack of resources[3]. One agency, the Human Rights Tribunal of Ontario (HRTO), has posted a warning on its website, alerting parties that their matters will not be adjudicated any time soon, given the tribunal’s vacant decision-maker positions. The HRTO at one time had more than twenty full-time decision makers hearing cases. That number has dropped since June 2018 to only twelve at the beginning of this year. A recent story on the CBC reported that, similarly, Ontario’s Landlord and Tenant Board has been stripped of half its adjudicators. Both tenants and landlords are alarmed—at the delay, the uncertainty, and the literal cost of trying to do business in such a climate.
Moreover, during the past year, the government appointed decision makers to a variety of tribunals with given terms that expired on December 31, 2019. Terms of less than one year do not give adjudicators adequate time to learn the culture of their tribunal and its mandate, offer no career stability, and negatively impact consistency, predictability and reliability in a decision-making institution. It is unclear from the government’s websites whether these recent appointees have had their tenure extended. Such uncertainty would never pass muster in a standard employment relationship. It can be argued that this might make it difficult for these decision makers to make independent (free of bias or influence), impartial rulings for the parties appearing before them, when their own status is so tenuous. If the individual adjudicators are not seen to be independent, the reputation of the tribunal itself is in jeopardy.
The current Ontario government, like many of its predecessors, relies for guidance on an Agencies and Appointments Directive to assist in a measured, predictable process for appointing decision-makers to its tribunals. The directive sets out the rules and accountability framework for provincial agencies, short-term advisory bodies and special advisors, as well as guidance for government appointments.
An update to the Appointments Directive, effective November 1, 2019, introduced several more troubling changes to the process.
The original directive provided for a ten-year rule for the maximum length of appointments, framed as a two-year appointment, followed by a three-year renewal and a five-year renewal, subject only to the recommendation of a tribunal’s head (often called a Chair). The directive has been tweaked to insert the words “up to” before the 2-, 3- and 5-year time frames meaning that shorter term lengths are possible and have in fact been made.
These short-term appointments to adjudicative tribunals “fly under the radar” because their candidacy is not vetted by any standing committee at the Legislature. Indeed, the government amended adjudicative tribunals legislation to allow itself to make these short-term appointments without traditional multi-party scrutiny. One might venture to say that the word “accountability” has effectively been removed from the Adjudicative Tribunals Accountability, Governance and Appointments Act.
The lack of a predictable and transparent appointment and re-appointment process significantly undermines adjudicator independence, much like tampering with the appointment of judges to our courts may jeopardize the perception of impartiality. This is particularly a problem for those tribunals at which the government appears as a party—where claimants are up against government officials who may have ruled against them, such as for social or disability benefits, employment standards or environmental inspections.
The amendments to the Appointments Directive overall reduce foreseeability of employment for decision makers and as a result potentially undermine the independence of these professional decision makers and—consequently—the independence of the tribunal as an institution. Adjudicators are professional decision makers, steeped in their respective fields of knowledge, trained to preside over contentious, sometimes volatile, proceedings, acknowledged for their ability to make difficult rulings and articulate them in written decisions for the benefit of the parties and the administration of justice.
This is a description of the lay of the adjudicative land in Canada’s most populous province. No doubt, aspects of the narrative will resonate with readers across the country, be they private practitioners or tribunal mediators and decision makers. The administrative justice system may not be the judiciary, but parties mediating or litigating matters before adjudicative agencies should have timely access to justice. They should also always be confident that the persons leading their settlement discussions or hearing their disputes are independent, impartial professionals knowledgeable in their field and secure in their tenure.
[1] https://www.advocates.ca/Upload/Files/PDF/Advocacy/Judicial_Independence/Judicial_Independence_Defending_an_Honoured_Principle_in_a_New_Age_Final_Design_Draft_Approved_by_Board_of_Directors_7-Apr-2020.pdf
[2] Letter dated March 9, 2020, The Advocates’ Society
[3] As of January 6, 2020, the Public Appointments Secretariat website reports “there are 348 vacant positions right now,” despite a number of appointments that took effect in early January 2020. That number vastly understates actual need. For example, it does not include any vacancies at the Human Rights Tribunal or the Landlord and Tenant Board which both clearly require more members.