What the Harris Government did to the administrative justice system

 

INTRODUCTION

As the administrative justice community continues to worry about what the Ford government has already done to Ontario’s system of tribunal justice and to speculate about what the Ford government is preparing to do – i.e., what is going to happen once all the short-term adjudicator appointments expire on December 29? and what will the ongoing secret “reviews” lead to? – it may be helpful to remember what happened the last time the Progressive Conservatives came to power.

The Harris government was first elected in June 1995, and, like the Ford government, the Harris government inherited an administrative justice system that from a justice perspective had become quite respectable.  What happened then is the subject of this post.  But, first:

THE PRE-HARRIS RENAISSANCE IN ADMINISTRATIVE JUSTICE

The Peterson/Rae governments had been in charge of the system for the preceding ten years – from 1985 – and during that time  the administrative justice system had in fact experienced a remarkable renaissance.  This author had occasion to describe that renaissance in a speech made to the CCAT Conference in June 1993 – eight years into the Liberal/NDP’s administration.  The speech was entitled: “A Report on Administrative Justice Reform in Ontario”.   The following passages from the script for that speech tell the renaissance story.  

Ladies and gentlemen,

My subject this morning is where administrative justice system reform has taken Ontario as we sit here at this moment, now eight years into government by the Liberal and NDP parties. …

In 1985, when Ontario experienced the first change in government in 43 years and the Liberals formed the government, three radical reforms occurred immediately.  And these have had a profound impact on the current composition of Ontario tribunals.

First, the Liberals turned their back on the patronage system of appointments as we had known it – and as some of you may still know it – and embraced the concept that, whatever else might be allowed to influence the choice for a particular appointment, qualifications and competence were the sine qua non.  Political considerations may still be a factor, but qualifications and ability have become the essential prerequisite.

Second, the Liberal government committed to an appointments policy that would stress reworking the face of Ontario tribunals so that they would start to reflect the face of Ontario’s population in the 1980s.  The emphasis in new appointments was to be on women, members of “ethnocultural” groups (to accept a phrase used in the 1986 Standing Committee Report on Appointments in the Public Sector) including particularly visible minorities, francophones, indigenous people, and the disabled.

Third, it committed to making what was in effect a public offering of appointments. Thus, in Ontario today, one will find in every public library a book that briefly describes the responsibilities, qualifications, and compensation paid for all tribunal positions in the province, along with an invitation to members of the public to apply for any positions for which they think they might be qualified. And I can report that applications do come in and that such applicants compete for vacancies on an equal footing with applicants from other sources. A number of tribunals have also moved to public advertising of vacant positions in relevant media.

This strategy of making a public offering of tribunal positions has also helped to ensure the preeminence of qualifications and abilities as the selection criteria. It is awkward to specify in a public offering of an adjudicative position that political service to the governing party is one of the criteria, and even more awkward to defend one’s decisions to unsuccessful, non-partisan applicants if the selection criteria have been in fact unfairly biased against them from the outset.

When the new Democratic Party formed the government in 1990, it, for the most part, continued to pursue these policies and took the further step of establishing a process of appointments review by a Standing Committee of the legislature. The idea is that the Committee’s ongoing review of a selection of government appointments will ensure the government’s continued commitment to these new policies.

And the prospect of public, standing-committee review looming over any candidate for appointment has indeed proven to be a further goad to ensuring that appropriate qualifications is the governing criteria. In recommending an appointment, one does not want to be a party to a subsequent embarrassment of one’s candidate when he or she is subjected to partisan questioning of qualifications in the public forum of the Standing Committee on Government Agencies.

The final strategic development influencing the quality and relevancy of appointments has been the increased influence of tribunal chairs in the selection of  tribunal members. Historically, in Ontario, while the views of the tribunal chair had been the conclusive influence on appointments to Ministry of Labour tribunals, in other ministries, Chairs were routinely not even consulted.   Now they have the major say. …

The latter development of course accorded with the reasonable expectations of the new breed of tribunal chair.  Indeed, in an era where qualifications and abilities were now being acknowledged to be a preeminent consideration, it was impossible to ignore the obvious fact that the most relevant views on the issues of the qualifications and abilities of a tribunal’s members are those of the tribunal’s chair.  …

The upshot is that we now find in Ontario an administrative justice system in which both the members and the chairs are now, for the most part, mid-career professionals who are young (relatively speaking), talented, highly committed, confident, energetic, recruited most significantly for their abilities, predominantly women and increasingly representative in other respects of the face of Ontario in, now, the 90s.

They are also no longer a group who feel beholden to the government for their appointments; chosen on the basis of their abilities and qualifications through what they understood to be competitive and fair selection processes, their view is that the government was lucky to get them.

This for Ontario is a systemic change of truly historic proportions.  …

In the short term, the first effect of this metamorphosis in the composition of tribunals has been a renaissance in the quality of administrative justice in Ontario.

Like other jurisdictions, Ontario has always had elite agencies whose performance has been largely exemplary. These are agencies whose client constituencies have had both a sophisticated understanding of the importance of a competent, efficient and independent tribunal and of what it takes to maintain such a tribunal, and also the political clout and savvy necessary to ensure that what it takes the government provides.  The Ontario Labour Relations Board and the Ontario Securities Commission are two examples that leap to mind.

However, with the exception of these few elite tribunals, administrative justice tribunals in Ontario have generally fallen well short of a standard of excellence.  They have been the victims of the patronage system of appointments and have been held down and disrespected by the always more powerful, and inherently conflicted, ministry bureaucracies. 

The new breed of tribunal chairs and members have transformed the quality of many existing tribunals or created new agencies of which everyone can be proud.   …

A new administrative justice system culture has been created in which the commitment of adjudicative tribunals and their members to decision-making independent from government and other inappropriate influences is taken seriously, as is the performance of the tribunal’s statutory mandate; a system in which professional satisfaction with one’s work figures strongly.

THE HARRIS TAKE-DOWN OF THE JUSTICE SYSTEM RENAISSANCE

In the latter part of his 1993 CCAT Conference speech, the author took note of some storm clouds on the horizon – viz:

It is necessary, however, to also be clear about the negative omens. …

The important underlying problem in Ontario, in my view, is the unresolved dissonance between on the one hand the current acceptance of an abilities-based system of appointments, complete with public offerings and, on the other, the continued attachment of the bureaucracy and of most MPPs to the fundamentals of the patronage system culture.  Premier Peterson and his supporters changed the practice in the appointments process, and thus within the halls of the administrative justice system we have for the time being created a new order, but we have changed nothing else.  There is no legislative support for the new practice.

[Sept 2019 author’s comment: It should be noted in this respect that this speech predated the first recognition of the unwritten constitutional principle of judicial independence in the 1997 decision of the Supreme Court in the PEI  Judges Reference.]

In the council rooms of the ministries’ bureaucracies, the commitment to patronage-style appointments – the regime on which their control over “their” tribunals depend – continues to flourish, and the politicians do not perceive the implications of this new culture or necessarily believe in those implications.  See for example the rejection by politicians of expertise and competence as things of particular value in their insistence on the arbitrary six year maximum on service in any one tribunal – a limitation incompatible with a system of professional adjudicators.

These two competing cultures cannot long co-exist and, in the natural order of things, barring some further fundamental reform of government and bureaucratic attitudes, it will be the new order in the tribunals that will disappear, replaced in due course by a system which may continue to pay lip service to an abilities-based system of appointments but to whose service no serious, professional candidates can be attracted.

So, should this newly professional set of tribunal chairs and members, committed to independent and impartial decision-making, ever confront the re-flowering of the “ancien régime” in the council rooms of another Ontario government, the culture of professionalism within the system would not long survive.

And, of course, the ancien régime, did reflower, and with a vengeance, when the Harris government took over. (And is reflowering once again under the tutelage of the Ford government.)

In 2003, as the Harris government moved towards the end of its second term and the despair about the state of the administrative justice system after eight years of mismanagement had reached its height, an ad hoc group calling itself the Administrative Justice Working Group (AJWG) came together with the goal of addressing the needed reforms and developing reform proposals to be presented to the next government after the October 2003 election when the Liberal Party under the leadership of Dalton McGuinty seemed likely to be the next government.

The AJWG was comprised of a diverse group of lawyers that had met over several months to develop and discuss proposals for change in the administrative justice system.  The group included a distinguished array of private bar lawyers, academics, members of the OBA’s Workers Compensation and Administrative Law sections, lawyers and legal workers in the Legal Aid Ontario clinic system, and several former members, Vice-Chairs, and Chairs of various Ontario adjudicative tribunals.  As a former Chair of  WCAT, the author of this post was a member of that group.  

The relevancy of the existence of that group to the subject matter of this post is that, in January 2004, three months into the McGuinty administration, the  group agreed upon a “position paper” which it then circulated for discussion in various forums and to stakeholder organizations.  The paper subsequently became the focus of the group’s discussion with members of the McGuinty government and might be thought to have contributed to the process that led to the eventual enactment of the ATAGA Act in 2009, and in particular section 14 of that Act.

The paper, dated January 15, 2004, is entitled “The Administrative Justice System Betrayed – A Discussion Paper on Reform of the Ontario Administrative Justice System” and it addresses two main topics – in the first two pages, it describes what it called the “breathtaking extent to which the former government weakened and undermined the integrity of the provincial administrative justice system”, and the means by which it did that.  In the last four pages, it addresses “The Challenges Ahead” including the essential principles of the required reforms, interim steps, and a recommendation for a major review of the system with a list of the policy issues that should be considered in such a review.

In this post, addressed to anticipating the dangers to the administrative justice under a Ford administration, only the first two pages will be quoted.  The full paper will be presented in a future posting.

The first two pages read as follows:

January 15, 2004

The Administrative Justice System Betrayed:

A Discussion Paper on Reform of the Ontario Administrative Justice System

[by the]

Administrative Justice Working Group

A major hallmark of the Harris / Eves years in Ontario was the breathtaking extent to which the former government weakened and undermined the integrity of the provincial administrative justice system. Adjudicative tribunals are an integral and essential part of our justice system; their cases are every bit as significant to participants as matters adjudicated by our courts.  Each year, tribunals make determinations in hundreds of thousands of applications affecting the legal rights, entitlements and obligations of Ontario citizens in respect of their income security, housing, employment, business success or failure, workplace safety, water and air quality, the viability of their neighbourhoods, and their individual liberty.

The people of Ontario have a right to expect this system to deal with them honestly, competently and with neutrality. Government must act as the trustee of justice and the rule of law in respect of these tribunals.  However, the widely-held consensus among administrative law practitioners and adjudicators is that the Ontario government has in recent years, not merely abdicated any such responsibility, but has rather, run roughshod over the most elemental principles of justice and the rule of law.

The appointments policy of the former government has been a key contributing factor in the systematic undermining of Ontario’s administrative justice system. Tribunal members have in many cases been appointed – and re-appointed –on the basis of political loyalty and perceived biases, without regard for competence or qualifications.

Significantly, the government stopped consulting tribunal chairs on appointments and re-appointments.  Arbitrary decisions were taken to deny re-appointment to competent and respected tribunal members, notwithstanding the recommendation of the tribunal chair, in some cases seemingly to punish decision-makers who trenched too much on favoured interests of the government.  In other cases, the failure to re-appoint competent and experienced adjudicators appeared to be tied to the desire of the government to create vacancies for unqualified friends or supporters.  In failing to re-appoint competent and experienced adjudicators, the government often purported to rely on an arbitrary upper limit on years of service, with the result that vital expertise was lost to the system.

The government also failed to set a policy framework for the administrative justice system that recognized the key components of excellence in administrative decision-making.  It adopted so-called “core competencies” for adjudicator candidates that had no rational relationship to the qualifications that are in fact required of a competent adjudicator. [1]

This systematic undercutting of the integrity of the appointments and re-appointments process took place as the government imposed significant financial constraints on the tribunal sector. Tribunal budgets were cut arbitrarily, without adequate warning, while members’ salaries were frozen for the better part of a decade. This was punitive to existing appointees, and had the added effect of making the acceptance of such appointments economically irrational to otherwise desirable candidates working in the private sector. Finally, the former government in many cases squeezed out or fired tribunal chairs who resisted these measures.

This damage was inflicted on the integrity and capacity of the administrative justice system even as the government took other steps that undercut the perceived fairness of tribunal adjudication, including:

  • placing unprecedented restrictions on the right of citizens to appeal the decisions of government and agencies;
  • requiring some tribunals to apply the government’s often questionable interpretation of the law;
  • applying user fees that created barriers for disadvantaged litigants; and
  • removing opportunities and funding support for community participation in important cases.

The Challenge Ahead

 The new Liberal Government has inherited an administrative justice system that is no longer a justice system in anything but name. Yet in this daunting challenge lies an opportunity, early in its mandate, for the Government to demonstrate to Ontarians its commitment to its campaign theme of “Choose Change”, by restoring the integrity of the administrative justice system.

…  [For the balance of the paper, see next post.]

~~~~~~~~~~~~~~~

[1] The Society of Ontario Regulators and Adjudicators (SOAR) has developed a set of core competencies for tribunal adjudicators that are a useful reference point.  Both Chairs and members should meet these core qualifications.  See Towards Maintaining and Improving the Quality of Adjudication:  SOAR Recommendations for Performance Management in Ontario’s Administrative Justice System (Canadian Journal of Administrative Law and Practice, vol. 9 at 179)

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