Here you can find all of Ellis’s posts from February 2013 – March 2017. They are in chronological order – oldest to newest. The eight posts described in the blocks below are the oldest posts on the site.
If you want to look for a specific topic, you can select a category from the sidebar or use the search function to explore topics in-depth.
Clicking on the first category “Current” will take you to the Current Blog.
Nick McCombie
The late Nick McCombie is the person to whom I dedicated Unjust by Design. People working in the workers’ compensation field will understand perfectly why the dedication to Nick McCombie of a book devoted to the vagaries – and the…
Refugee Sandwich, stories of exile and asylum
In Unjust by Design, the reader will find many references to Peter Showler, a former Chair of the Immigration and Refugee Board. It is, for instance, his whistleblowing to the Toronto Star in 2003 concerning the patronage abuse he had…
Does “Canada” have a – ie., one – administrative justice system?
In a multi-jurisdictional country like Canada, it is clearly not accurate to speak, as I do in the title to the book, and elsewhere in the book, of a Canadian administrative justice system – there are many such “systems”. The…
Lebel, J: constitutional protection for administrative tribunals?
On October 26, 2012, the Honourable Mr. Justice Louis LeBel was a keynote speaker at the CLEBC Administrative Law Conference 2012 in Vancouver. His speaking notes have now been published in the February 13, 2013, issue of the Canadian Journal…
Merit-Based Reappointments – LSUC Leads the Way
Introduction This post is about the issue of arbitrary reappointment regimes for tribunal adjudicators. Ontario Lawyers and paralegals will have noticed the Law Society of Upper Canada advertising recently for a full-time chair and part-time adjudicators for the Law Society…
UNJUST BUDGETS – Constitutionally Valid?
Prologue When governments are preoccupied with deficit reduction, the budget problem for judicial tribunals, never good in the best of times, gets much worse. On February 1, 2013, Ian Strachan, Chair of the Ontario Workplace Safety and Insurance Appeals Tribunal,…
Independence and Impartiality
One of Unjust by Design’s (the book’s) principal concerns is with the administrative justice system’s structures and the fact that those structures are egregiously incompatible with the rule of law and the Constitution. The Law Both the common law of…
Tribunal Appointments – Life-Tenured? No
The Question Once one acknowledges that the current regime of short-term, renewable appointments of judicial tribunal members cannot possibly be squared with either the constitutional or common law requirements of judicial independence, one is then faced with this question: Is…
Judicial Tribunal Decisions: Are they all Invalid?
Introduction it is easily argued that because of the nature of the executive branch’s administrative justice strategies and tactics, most judicial tribunals outside of Quebec fail to conform to one or more of the common law prerequisites for judicial independence. Chapter 7 of…
Integrity Commissioner Investigates Judicial Tribunal Chair
The News: This month (April 2013), the Federal Public Sector Integrity Commissioner tabled in Parliament its Report of her Office’s investigation into complaints of “wrongdoing” that had been made against the former Chairperson of the Canadian Human Rights Tribunal in…
Unjust by Design recommended by BC Supreme Court Justice
In a speech to the Pro Bono Annual Volunteer Appreciation Breakfast on April 25, 2013, Mr. Justice T. M. McEwan, of the B.C. Supreme Court, recommended five books to his audience which he said he had “found useful in shaping my…
Deference: Constitutionally Permissible in Canada’s Current System? (Several Comments)
Prologue In Valente, and in the jurisdiction Valente spawned, the Supreme Court has specified the structural guarantees that are necessary for a judicial tribunal or its members to meet the rule of law requirements for judicial independence and impartiality and, as…
Court deference to Ministry staff exercising judicial functions (two comments)
What’s Wrong with this Picture? The only persons now authorized to issue eviction orders against B.C. residential tenants are employees of the Tenancy Branch, of the Office of Housing and Construction Standards, in the B.C. Ministry of Energy and Mines.…
Unjust by Design goes upmarket
LRC – The Literary Review of Canada – reviews Unjust by Design In its June issue (page 28-29), the LRC published a two-page review of Unjust by Design, written by Toronto lawyer Bob Tarantino. It is a positive review in…
Tribunal Independence – Ocean Port Rules
Court of Appeal Approves Mid-term Dismissal of Adjudicators Saskatchewan’s Court of Appeal has dismissed the Unions’ appeal of the Queen’s Bench finding that the independence and impartiality of the Saskatchewan Labour Relations Board’s neutral adjudicators – the Chair and Vice-Chairs…
Judicial Tribunal Bias: A Case in Point
In its judgment in the June 2013 Saskatchewan Labour Relations Board case, the Saskatchewan Court of Appeal made the pro-government bias of that Province’s Labour Relations Board (a Board that the Court acknowledged was an adjudicative tribunal) plain for all…
Visit Count Over 4000
For those of you visiting this site from time to time and not seeing anyone “joining the conversation” (except for emorg – thanks emorg) it might comfort you to know that, contrary to what you might have imagined, you are…
Unjust Tribunal Budget Processes – Barreau du Quebec speaks out
In its June 7, 2013, issue, The Lawyers Weekly reported on the Barreau’s 2013 annual report on Federal and Quebec administrative and legislative developments over the past year. Amongst the Barreau’s reported concerns was what it saw to be the…
The Adjudicator Has No Clothes – OBA Newsletter Review of Unjust by Design
In the July 2013 issue of the OBA Public Sector Lawyers Newsletter, Voy T. Stelmazynski, Ontario Labour Relations Board Solicitor has published a very readable, very positive, review of Unjust by Design. It may be found at: http://www.oba.org/en/pdf/sec_news_pub_jul13_ste_ell.pdf=
Unjust by Design Scores Another Positive Review
In Intra Vires, the Canadian Bar Associaiton National Administrative Law Section Newsletter (July 2013 issue) one finds a review of UBD by Mike Stephens from BC in which “anyone remotely interested in the current state of administrative justice in Canada”…
Unjust by design, Canada’s Administrative Justice Gets no Respect
In UBD, at page 133, the following appears: With its political patronage and at-pleasure appointments; with its seconding of dependent government employees to “independent” tribunals; with its policy of short, fixed-term appointments, arbitrary reappointments, and, especially, idiosyncratic removals; with the exposure of tribunal…
Standard of Review – Deference Owed Only to Independent & Impartial Tribunals – Not a Novel Thought After All
In Unjust by Design, I asked this question: Are courts justified in applying a “deference as respect” standard of review to dependent and biased tribunals? I thought this was an important question (I still do), but I also believed that…
Independence & Impartiality of Adjudicative Tribunals – Application for Leave to Appeal Consitutional Decision of Sask. CA in Labour Board Case
An application for leave to appeal Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61 (CanLII), to the Supreme Court of Canada was filed with the Supreme Court on September 5th. The Applicant is the Saskatchewan Government and General…
Unjust by Design Quebec Exemption
In Unjust by Design, I exempted the Province of Quebec’s administrative justice system from the book’s criticism of the administrative justice system. My explanation appears at page 27 and reads as follows: Why is my criticism of the administrative justice…
Tribunal Independence – Manitoba Acknowledges Renewable Fixed Terms not Compatible with Independence
Preface It was recently brought to my attention that the Manitoba Attorney General’s Factum in the Senate reform reference before the Supreme Court of Canada, which was filed on August 27, 2013, contained a significant argument about the incompatibility of…
Social Security Tribunal – Chair and Vice-Chairs Status “Intrinsically Precarious”
Social Security Tribunal Chairperson and Three Vice- Chairpersons Serve at Pleasure In 2009, the Federal Court ruled that Linda Keen’s “designation” as President of the Canadian Nuclear Safety Commission constituted an appointment at pleasure – an appointment which made her…
Judicial Tribunal Independence: Quebec CA finds renewable terms okay, strikes a blow for competence …
Background In 2001, the Quebec Court of Appeal held in Barreau du Montréal* that the appointment of members of Quebec’s Administrative Tribunal (TAQ) to fixed renewable terms would be incompatible with the Valente principles of judicial independence – and thus in…
Tribunal Independence: Standing up to Politicians – A Case in Point
Facts On March 21, 2013, the BC Provincial Agriculture Land Commission refused an application for permission for a non-agricultural use of acreage located in the Agricultural Land Reserve in the area of Fort St. John. After receiving a request from the…
Unjust by Design Review – “A Clarion Call for Administrative Justice Reform” – Professor Philip Bryden, Dean of Law, University of Alberta
Professor Bryden: In conclusion, I would say that Unjust by Design is a book that everyone who is interested in administrative justice in Canada ought to read. I dare say that many of us will disagree with at least some…
Administrative Justice – “motivated perceptions” – are tribunal adjudicators susceptible?
As reported in the Canadian Legal Newswire on December 2, 2013, Professor Michael Saks, a law and social science scholar from the Arizona State University, recently spoke to the Toronto Conference marking the 20th anniversary of Canada’s Association in Defence…
Administrative Justice – APPLICATION FOR LEAVE TO APPEAL DISMISSED (the Constitutional Issue, Post # 1)
NEWS The Supreme Court of Canada has dismissed the Saskatchewan Government and General Employee’s Union’s application for leave to appeal the Saskatchewan Court of Appeal’s decision in SFL v. Saskatchewan (Attorney General), 2013 SKCA 61 (CanLII). COMMENT Some indication of the…
Administrative Justice: SCC’s Refusal of Leave in the Saskatchewan Labour Relations Board Case – The Range of Possible Reasons (The Constitutional Issue – Post # 2)
PREFACE On December 19, 2013, the Supreme Court of Canada dismissed the applications of the Saskatchewan Government and General Employee’s Union (SGEU) and the Saskatchewan Joint Board Retail, Wholesale and Department Store Union (RWDSU) for leave to appeal the Saskatchewan…
Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 3 – the res judicata/abuse of process reason)
Preface As the necessary context for what follows in this Post # 3, see the brief statement of the Saskatchewan Court of Appeal’s findings of fact and its decision on the constitutional issue in “Post #1” in this “The Constitution”…
Unjust by Design – Paul Daly Review, January 9, 2014.
In a post dated January 9, 2014 in his blog, Administrative Law Matters, Professor Paul Daly has written the most recent review of Unjust by Design. The opening paragraph reads as follows: Having worked at the tribunal coalface for many…
Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 4 – MOOTNESS)
Preface For the context for this Post #4 in this series of posts, see the brief statement of the Saskatchewan Court of Appeal’s findings of fact and its decision on the constitutional issue in “Post #1″ in this “The Constitution”…
Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 5 – Independence Not in Fact an Issue?)
Preface For the context for this Post #5 in this series of posts, see the brief statement of the Saskatchewan Court of Appeal’s findings of fact and its decision on the constitutional issue in “Post #1″ in this “The Constitution”…
Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 6 – “Societal Consensus” Against Independence)
Preface For the context for this Post #6 in this series of posts, see the brief statement of the Saskatchewan Court of Appeal’s findings of fact and its decision on the constitutional issue in “Post #1″ in this “The Constitution”…
Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 7 – Labour Board Not an Adjudicative Tribunal)
Preface For the context for this Post #7 in this series of posts, see the brief statement of the Saskatchewan Court of Appeal’s findings of fact and its decision on the constitutional issue in “Post #1″ in this “The Constitution”…
Administrative Justice: SCC’s Refusal of Leave in SFL v. Saskatchewan – The Range of Possible Reasons (Post # 8 – The Leave Argument as Filed)
Introduction In his last post – Post #7, dated February 3, 2014 – the writer completed his description of each of the five reasons the Saskatchewan Attorney General presented to the Supreme Court as to why the unions’ applications for…
Administrative justice – Quebec’s is Unjust by Design too
PREFACE Unjust by Design explicitly left Quebec out of its critique of Canada’s administrative justice system. The reasons for that exclusion appear in the first full paragraph on page 27 of the book and the final sentence in that paragraph reads:…
Administrative justice: partisan appointments vs. democratic principles
Last Saturday, I had serendipitously read two articles in succession. The first was Luis Millan’s piece in the March 14th issue of The Lawyers Weekly on the recently released Study of Quebec’s 15 adjudicative tribunals which had reported that those…
Administrative Justice – Radical Restructuring of Federal Adjudicative Tribunals
THE NEWS An omnibus government bill was tabled yesterday (March 28) in the House of Commons (Bill C-31[1]) entitled “An Act to Implement Provisions of the Budget Tabled in Parliament on February 11, 2014 and Other Measures”. Among the “other…
Administrative justice – Radical Federal Restructuring, Post #2
TRIBUNALS TAKEN OVER LOCK, STOCK AND BARREL – MORE C-31 SURPRISES: Tribunal funds to be transferred to “the Service”. Tribunal budgets are to be subsumed in the Service’s Budget. Chairs’ powers to control the expenditure of their budget would thus…
UNJUST BY DESIGN SHORT-LISTED FOR THE DONNER
I am pleased (pleased doesn’t quite cover it) to report this morning’s announcement that Unjust by Design is one of five books short-listed for the 16th Annual Donner Prize – “the award for the BEST PUBLIC POLICY BOOK by a…
Administrative Justice – Radical Federal Restructuring – Independence Implications – Post # 3
THE PREMISE As we contemplate the implications, for the independence and impartiality of federal adjudicative tribunals, of their being taken over by the “Service” – the new branch of the Department of Justice being created by Division 29 of Bill…
Administrative Justice and DISABILITY Claims – NOT A PRETTY PICTURE
GUEST POST The following post is a report from the trenches, as it were, by Donald J. Porter, an advocate who represents individuals disabled from injury or disease who, unable to earn their own livelihood, must apply for the…
Administrative Justice – If the Chief Justice is not safe, Who is? Bill C-31’s Chief Administrator?
In light of the recent attack by the Prime Minister on the Chief Justice of Canada, the Calgary Herald has gone back in its files to find other examples of the fate of holders of “independent” positions who have made…
Administrative Justice: Fixed Terms incompatible with Independence – SCC Agrees
In my September 23, 2013, post, I referenced the Manitoba Attorney General’s argument filed in the Senate Reference that fixed terms for Senators were incompatible with the concept of independence – the independence that was so essential to the Senators’…
Administrative Justice: APPREHENDING BIAS – WHAT WILL IT TAKE?
Acknowledgement I am indebted to Professor Paul Daly and his blog Administrative Law Matters for highlighting the following decision. PREFACE The Case The decision addressed in this Post is the decision of Strickland J. in Muhammad v. Canada (Citizenship and Immigration),…
Unjust by Design – Ellis Donner-Prize Interview
Readers who might have some interest in Unjust by Design, but have not read it, will find the main themes of the book covered in the video tape of the author’s unscripted interview in advance of the Donner-Prize award dinner.…
SOCIAL SECURITY TRIBUNAL UPDATE
Readers who found Don Porter’s guest posting of interest (Administrative Justice and DISABILITY Claims – NOT A PRETTY PICTURE April 13, 2014) will not want to have missed the following Globe and Mail report. http://www.theglobeandmail.com/news/politics/thousands-awaiting-appeals-before-social-security-tribunal/article19150798/ RE
Rule of law in the Administrative Justice System – an ignis fatuus?
This post is the promised sequel to my May 28, 2014 post on the Federal Court decision in Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448 (CanLII), concerning the law of independence and bias in the administrative justice system.…
Social Security Tribunal – More Criticism
For visitors to this site with an interest in the Social Security Tribunal but who are not Globe and Mail subscribers, here is another perceptive criticism of the structure of the SST. http://www.theglobeandmail.com/globe-debate/seven-reasons-why-disabled-canadians-are-losing-cpp-benefits/article19630200/ It is written by Michael J. Prince the…
Rule of Law, Antidotes for the Ignis Fatuus Syndrome
INTRODUCTION In my July 14, 2014, post respecting the Federal Court’s decision in Muhammad, I characterized that decision as evidencing a danger that in the administrative justice system the rule of law was becoming an ignis fatuus (pronounced fach-oo-us) –…
Standard of Review – No Deference for a Biased Tribunal
TOPIC If an adjudicative tribunal is not independent and/or demonstrably impartial -i.e., is, in law, biased – surely respect-based deference cannot be justified. PREFACE In previous posts on this website (see below), and in Unjust by Design (pages 289-290), I…
Social Security Tribunal – More about the backlog and lagging appointments
Here is a Canadian Press article published August 15, 2014, in MACLEAN’S, posted here just in case you haven’t seen it. The problems continue. http://www.macleans.ca/politics/ottawa/social-security-tribunal-cant-manage-caseload-documents-show/ RE
Administrative Justice – the 10-year appointments cap but, first, AN APOLOGY
It has been over a month since I last posted anything for you to read and I want to apologize for the delay. Heaven knows it is not that on the subject of administrative justice system reform there is nothing to…
Administrative Justice adjudicators – Ontario’s 10-year cap – an appointments tsunami coming to a tribunal near you
THE CAP TSUNAMI It is time that this site turned its reader’s attention to the looming appointments tsunami for Ontario tribunals. I refer to the 10-year cap on tribunal service for OIC appointees; a policy introduced several years ago and…
SOCIAL SECURITY TRIBUNAL – PROFITING FROM PROCESSING DELAYS
Prelude Those readers who are interested in tracking the ongoing saga of the Social Security Tribunal will want to check the urls set out below – one is an article from CTV News and the other a Canadian Press article…
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,…
SOCIAL SECURITY TRIBUNAL – More Reasons to be Concerned
For site visitors who might not have seen this, here is more evidence of the federal government’s disrespectful, minimalist approach to the adjudication of rights in its administrative justice system. http://metronews.ca/news/canada/1172725/benefits-arbitrators-dont-get-benefits/
Administrative Justice Capology – Capping an Adjudicator’s Years of Service: Can we Think of a Reason? – NO!
CLARIFICATION FROM THE LOOPY CAPOLOGIST My October 8, 2014, posting on the cap issue, was intended to be satirical – sarcastic, even; and my list of “21 Reasons for Capping an Adjudicator’s Service at 10 Years” was intended to show…
SOCIAL SECURITY TRIBUNAL – BROKEN
Again, for those who may not be keeping track, the following url is a wowser. http://www.northumberlandview.ca/index.php?module=news&type=user&func=display&sid=31642 Main Points: The SST Chair reports that the Tribunal’s backlog now stands at 15,000 appeals and there is no way to estimate when that…
SOCIAL SECURITY TRIBUNAL – More
– Lee-Anne Goodman, The Canadian Press – Tues, 2 Dec, 2014: … Terminal cancer patients, organ-transplant recipients and suicidal, debt-addled Canadians are among the 11,000 people waiting to have their appeals heard by Ottawa’s badly backlogged social security tribunal. … Federal…
UNJUST BY DESIGN REPLAYED – Post #1
INTRODUCTION It is January 2015, and in history’s rear-view mirror the publication date of Unjust by Design is rapidly receding (as is the book’s shortlisting for the Donner Prize). Looking forward through history’s front window, no spark of interest in the…
UNJUST BY DESIGN REPLAYED – Post #2: Merit-Based Except When They Aren’t
INTRODUCTION One of the important issues Unjust by Design addressed was the nature of the processes by which the adjudicative members of judicial tribunals [adjudicative tribunals] were selected and appointed, and the role that patronage and partisan politics traditionally play…
Unjust by Design Replayed – Post #3: Appointments Lessons at the IRB, 2002-2008
Introduction In Post #2 of my “Unjust by Design Replayed” series, I referenced UBD’s description of the appointments experience at the IRB from 1995 to 2002. I did this to remind us how a government can claim an adjudicative tribunal…
Unjust by Design Replayed – Post #4: Face it, Dicey was Right
(Another in the “Replayed” series. For the introduction to the series, see post #1 (below).) INTRODUCTION It is indisputable that the adjudicative decision making of tribunals in our administrative justice system is indistinguishable in rule of law terms from the…
SST Backlog – Clearing the Backlog – Admin Law Pitfalls in Government Intervention
Jason Kenney Vows To Clear Social Security Tribunal Backlog By This Summer — Lee-Anne Goodman, Canadian Press, February 6, 2015. When an adjudicative tribunal backlog has become such a political embarrassment that a government feels it must itself assume the…
Administrative Justice adjudicators – Ontario’s 10-year cap – SOAR Cap Study Published – Tsunami Confirmed;
INTRODUCTION The Society of Ontario Adjudicators and Regulators (SOAR) has now published its study of the impact on Ontario tribunals of the Ontario government’s new 10-year cap on the overall length of appointments. The SOAR “Study on the Impact of…
Unjust by Design Replayed – Post #5: Canada’s Mutable Judicial Functions
Another in the “Replayed” series. For the introduction to the series, see Unjust by Design Replayed, Post #1 below. INTRODUCTION One of Unjust by Design‘s seminal themes is the supreme importance to our justice system of distinguishing tribunal judicial functions…
Administrative Justice: More Trouble in the Federal System
Readers who subscribe to The Lawyers Weekly will know to what this post refers. The above-the-fold headline in the April 24 issue tells the tale: …
Unjust by Design Replayed – Post # 6: Professor Hart would not approve.
Another in the “Replayed” series. For the introduction to the series, see “Unjust by Design Replayed”, Post #1 below. In the passages quoted from Unjust by Design, footnotes are omitted and context-clarifying notes sometimes [added] INTRODUCTION One of the keystone principles of…
Administrative Justice Adjudicators – Chicken Pluckers? Really?
INTRODUCTION I am indebted to a colleague for bringing the following entry in the Labor and Employment Section of the ABA (American Bar Association) Journal to my attention. The url link below will take you to the ABA Journal and…
Unjust by Design Replayed – Post # 7: Making Tribunal Decisions “Alike” – the Court of Appeal Weighs In
Another in the “Replayed” series. For the introduction to the series, see “Unjust by Design Replayed”, Post #1 below. In the passages quoted from Unjust by Design, footnotes are omitted and context-clarifying notes sometimes [added] THE PROBLEM OF “UNLIKE” TRIBUNAL DECISIONS Post…
Administrative Justice in Workers’ Compensation – Post #1: Tribunal Denial
PREFACE This post is the first in a series focused on justice issues in Ontario’s workers’ compensation administrative justice system. In that system, as in so many others, the rule of law has been disrespected and in this series of…
Administrative Justice in Workers’ Compensation – Post #2 – Biased Medical Opinions?
Doctor Claims Medical Opinion Led to Her Dismissal Another in the Ontario workers’ compensation series. (For the introduction to the series, see Post #1 referenced below.) The Toronto Star reports that a doctor is suing the Ontario WSIB and her former…
Administrative Justice in Workers’ Compensation – Post # 3: Cost-Averse Adjudication and the Hijacking of the Thin-Skull Rule
Another in the Ontario workers’ compensation series. For the introduction to the series, see Post #1 in this series below. INTRODUCTION This post addresses three topics: 1) The status of the common law’s “thin skull” rule in the determination of permanent…
Administrative Justice in Workers’ Compensation – Post # 4: A cost-averse echo from New Brunswick – Ombudsman anyone?
Another in the Ontario workers’ compensation series. For the introduction to the series, see Post #1 in this series below Apparently, it is not only Ontario that is fixing its workers’ compensation system’s financial shortcomings through the adoption of a cost-averse…
Unjust by Design Replayed – Post # 8: Shiner Review – Unjust by Design in Five
It is going on three years since Unjust by Design was published and, for those readers who perchance may not have read it, or for those who might feel the need of a brief refresher :o), here, in short compass…
Administrative justice in workers’ compensation – Post # 5 – Charter Denial
Another in the Ontario workers’ compensation series. For the introduction to the series, see Post #1 referenced below. PREFACE In Post #1 of this series, I addressed the problems presented by the Tribunal-Denial policy of the WSIB (Ontario Workplace Safety…
Administrative Justice in Workers’ Compensation: Post # 6: Cost-Averse Bias at Large
Another in the Ontario workers’ compensation series. (For the introduction to the series, see Post #1 referenced below.) INTRODUCTION As recounted in workers’ comp post #3 – my hijacking post – the WSIB has deemed, incorrectly in my view, that the…
Administrative Justice in Workers’ Compensation – Post # 7: Mass Adjudication and its Shortcomings
Another in the Ontario workers’ compensation series. For the introduction to the series, see Post #1 in this series, linked below Mass Adjudication: Keeping An Eye on the Ball INTRODUCTION The adjudication of claims by a benefit administrator in its adjudication role,…
Administrative Justice in Workers’ Compensation – Post # 8: The Chilling U.S. Story
The following article was published in ProPublica in March 2015. The story it tells provides important context and is an object lesson for Canadian workers’ comp advocates in particular but also for administrative justice advocates more generally. It shows how…
Administrative Justice, Quebec Style – The New Administrative Labour Tribunal
INTRODUCTION As of January 1, 2016, Quebec has merged its labour relations board with its workers’ compensation appeals tribunal into one omnibus, judicial tribunal – the “Administrative Labour Tribunal” (ALT). The legislation that effects this merger is An Act to Establish…
An Encounter with the Prime Minister
Look, there’s Justin Trudeau, heading a new federal government, a progressive government, full of energy, undoing wrongs, setting things right. Hey Justin! Look over here! Yes, that’s right, over here; here in the place where rights claims are sent to…
Yes, Prime Minister – there is a problem with your appointments process
Good morning, Prime Minister. Appreciated your taking a peek at the administrative justice system the other day; glad to see that you are interested in talking some more. Thanks for the call. Yes, I did see your announcement that you…
Prime Minister: merit-based appointments processes; what could possibly go wrong?
Prime Minister, thank you for calling again – a little late, but still… Yes, I do realize how busy you are and I am grateful that you are making some time for me. The last time we talked, I was…
Administrative Justice – what to look out for in merit-based appointments processes
PREFACE Well, it is time for me to stop abusing the Prime Minister and give up the shtick of an invented conversation with him. I hope, readers, that you did not find it too off-putting and that you were able…
Administrative Justice – Adjudicative tribunal Appointments – SOSSIN, MULLAN, JACOBS, HOULE, HECKMAN, ELLIS Open letter to PM RE ADJUDICATIVE TRIBUNAL APPOINTMENTS
I understand that a copy of the following letter to the Prime Minister is now making its way through the links in social media, but just in case you haven’t seen it .. here it is. SOSSIN – MULLAN –…
For merit-based adjudicative tribunal appointments free of partisan/patronage influences, blow up the black box U.K. style
CONTEXT As described in past posts, a typical “merit-based” government appointments process starts with identifying a vacancy to be filled and specifying the qualifications required; then publishing the notice of vacancy with the specified qualifications and inviting applications; then screening…
Administrative Justice – Miscellaneous News: appointments process Op Ed article; and the WSIAT Chair mystery.
Le Devoir op-ed article calling for appointment process reform French-speaking readers may find the following op ed article in Le Devoir (June 29, 2016) of interest. It calls on the federal government to pay special attention to the need for…
Administrative justice – op ed article English version, and reaction to WSIAT Chair Mystery
The reaction of one experienced workers’ comp advocate to the WSIAT Chair Mystery exposé : That can’t be right, $ 140,000 per year? Some senior Appeals Officers at the WSIB earn close to that amount. Perhaps it comes with a…
Administrative Justice – WSIB ‘paper doctors’ – Not a Systemic Problem? HANG ON A MINUTE.
INTRODUCTION On Sunday July 10, the Toronto Star’s front-page headline read: WSIB review defends use of ‘paper doctors’. The reference to the Ontario WSIB’s “paper doctors” first appeared in a November 2015 report by the Ontario Federation of Labour and…
Administrative Justice – WSIB not telling it the way it is when it comes to the thin skull rule
The following is a letter the author submitted to the editor of the Toronto Star on July 24, 2106. Since the Star elected not to publish it, I thought I might share it with the visitors to this site. July…
Administrative Justice – Thin Skull Law, and Thin Skull Abrogation at the Ontario WSIB, TWO MEMOS ON OFFER FREE OF CHARGE
THE OFFER Copies of the following two memos by this author may be obtained at no charge by an email request addressed to sronaldellis@gmail.com: (1) An 11-page memorandum describing the law governing the thin skull doctrine in its application in Ontario’s…
WSIB IS BOUND BY THE LAW
In his letter to the Toronto Star in response to Sara Mojtehedzadeh’s November 14th article on the subject of the mentally ill being denied WSIB benefits – the letter that was published November 16 – the WSIB’s Chief Operating Officer…
Employment Insurance – administrative justice gone awry again
For an account of what has gone wrong with the Harper government’s plan for adjudicating employment insurance claims, see: http://rabble.ca/blogs/bloggers/progressive-economics-forum/2016/12/new-ei-appeals-process-isnt-working-heres-why RE
Dissembling Statistics in Workers’ Compensation Systems
INTRODUCTION “dissemble” – to give a false or misleading appearance. The concept of “dissembling statistics” is conveniently illustrated in Chapter Three of Charles Wheelan’s 2012, New York Times best-selling book, “Naked Statistics: Stripping the Dread from the Data”, where the…
Adjudicative Tribunals – Unconscionable Delays in Appointments – Ontario Auditor General Reports
You may have heard that the Ontario’s Auditor General has reported at length on disastrous delays in OIC appointments to tribunals, boards and agencies – another indicator on a long list of indicators of this government’s disrespect and neglect of…
Tribunal Adjudication – The overwhelming importance of Oral hearings
TRIBUNAL DECISION-MAKING THE INFLUENCE OF ORAL HEARINGS ON OUTCOMES AN EMPIRICAL STUDY What would happen if one could take the exact same claim for a statutory benefit and have it adjudicated multiple times by a large number of different appeals…
Tribunal Adjudication, Post # 2 – oral hearings important mostly because of the additional information they provide
The UCL empirical study of tribunal adjudication referred to in the previous post which shows that disability claims are 2.5 times more likely to be successful if the tribunal’s decision follows an oral hearing, also examined why that might be…
Workers’ Compensation Chronic Stress Benefits Remain in Limbo as Ontario Ombudsman Refuses to Investigate
THE PETITION On November 7, 2016, three Toronto workers’ compensation legal clinics (IWC, IAVGO, WHSLC), workers’ compensation lawyer, Gary Newhouse, and this author, formally petitioned the Ontario Ombudsman to investigate the WSIB’s systemic denial of chronic mental stress injury claims. The…
WSIB and the Ontario Court of Appeal decision in the Castrillo Class Action
INTRODUCTION It seems likely that visitors to this site will have heard about, or, indeed, have read, the Court of Appeal’s February 13, 2017, decision in Fink & Bornstein’s class action against the WSIB – Pietro Castrillo v. Workplace Safety…
WSIB and Some of the Evidence it Will Have to Confront in Castrillo
Introduction The author’s March 10, 2017, post in this website described the highlights and implications of the Court of Appeal decision in Castrillo, the Fink & Bornstein class action against Ontario’s WSIB. The class action claims that the Board was…
Unjust by Design – still out there …
In the March 2017 issue of the Canadian Journal of Administrative Law & Practice (vol. 30, pp 119-144) one will find an article written by Andrew Taillon (of the Nova Scotia Department of Justice) entitled: “To the Rescue: The Grievance…
Ontario’s WSIB and the Bill 127 Amendments – The power implants – Why are they needed? Part I
THE WSIB POWER IMPLANTS INTRODUCTION Schedule 33 of Bill 127, the “Stronger, Healthier Ontario Act (Budget Measures), 2017”, will amend the Ontario Workplace Safety and Insurance Act in a number of ways, many of them apparently positive from an injured…
Ontario’s WSIB and the Bill 127 Amendments – The power implants – What do they do? – Part II – Evidentiary Requirements Policies
THE WSIB POWER IMPLANTS – PART II EVIDENTIARY REQUIREMENTS POLICIES INTRODUCTION This is my second post on the WSIB’s four, mysterious power implants which Schedule 33 of Bill 127 has added to Ontario’s WSIA by means of the “Stronger, Healthier…
Ontario’s WSIB and the Bill 127 Amendments – The power implants – What do they Mean? – Part III – Adjudicative Principles Policies
THE WSIB POWER IMPLANTS – PART III POLICIES CONCERNING ADJUDICATIVE PRINCIPLES INTRODUCTION This is my third post on the WSIB’s four, mysterious power implants inserted in Ontario’s WSIA by…
Ontario’s WSIB and the Bill 127 Amendments – The power implants – What do they Mean? – Part IV – Adjudicative Principles Policies
THE WSIB POWER IMPLANTS – PART IV POLICIES CONCERNING DIFFERENTIATED EVIDENTIARY REQUIREMENTS AND ADJUDICATIVE PRINCIPLES INTRODUCTION This is my fourth, and last, post on the WSIB’s four, mysterious power…
Ontario’s WSIB and the power implants – CMS Benefits Policy – A Case in Point – Wrong Standard of Proof
CHRONIC MENTAL STRESS BENEFITS THE WSIB’s DRAFT POLICY WRONG STANDARD OF PROOF INTRODUCTION On May 4, 2017, the Ontario WSIB published a draft Operational Policy concerning entitlement to “Traumatic or Chronic Mental Stress Benefits” respecting “accidents on or after January…
Workers’ Comp Reclamation? Alberta Points the Way.
Reclamation: A process of claiming something back or reasserting a right. INTRODUCTION For the radical right of corporate employers, Alberta’s workers’ compensation system has long been the shining city on the hill – the system with the lowest premiums in…
Ontario WSIB – No Evidence Demands a Public Inquiry
No Evidence A Clarion Call for a Public Inquiry Introduction IAVGO Community Legal Clinic recently released its 86-page report, “NO EVIDENCE”.[1] The report is a game-changer. It is a game-changer because it proves, on the basis of unimpeachable evidence, that,…
Ontario WSIAT – Pre-existing Degenerative Disc Disease – A Surprise, a Missed Opportunity
A SURPRISE, A MISSED OPPORTUNITY Pre-existing, Asymptomatic DDD Conditions Not Grounds for Impairment-Rating Reductions (As a Matter of Interpretation) INTRODUCTION If the Ontario WSIB thought that through its November 2014 publication of its Operational Policy on “Determining the Degree of…
ONT. WSIB—Getting the Pe-Existing Conditions Policy Before the Courts, Now!
The Issue and The Context The Board’s post November 2014 operational policies in which the level of permanent impairment resulting from a workplace injury is to be determined by discounting for asymptomatic pre-existing conditions constitute an arbitrary and unlawful repudiation…
Workers Comp and the Final-Say Procedures—Time for Statutory Reform
Toronto Star, front-page headline – October 5, 2017 “Tribunal Overturns WSIB Practice of Cutting Migrant Aid” NOT ACTUALLY TRUE Time for a Statutory Reform of the Final-Say Procedures The Issue The migrant-worker decision of the Ontario Workplace Safety and Insurance…
Government Disability benefits – Conflicted Adjudication Needs Fixing
Disability Benefits Conflict Eliminatus A Call For Conflict-Free Initial Adjudication The Conflict Problem The organizations that administer statutory disability benefit programs are also the organizations that adjudicate the claims for those benefits. And it is self-evident that in their statutory…
Administrative Justice in the Ford Era – A System in Crisis
After Harris, Ontario’s administrative justice system had become a generally admired system. This post describes the features of that system as it existed pre-Ford; outlines the retrograde policies that have been introduced by the Ford administration; and projects the consequences…
Administrative Justice in the Ford Era: No. 2 in the Series
In this post, Ellis begins to examine the legal bases for court-challenges of the Ford executive branch’s regressive policies concerning the administration of the Province’s adjudicative tribunals and their members.
Administrative Justice In The Ford Era – No. 3 In The Series
In this, the third post on Ford’s administrative-justice policies, the topic is the remedies that would present themselves were it found that, notwithstanding Ocean Port, the unwritten, constitutional principle of judicial independence does apply to adjudicative tribunals – a proposition…