Blog Archives

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…
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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…
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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…
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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,…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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”…
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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…
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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…
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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…
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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:…
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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…
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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),…
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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.…
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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
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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…
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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) –…
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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…
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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/
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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,…
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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…
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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…
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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…
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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…
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