Viewer, Erin Doucette, has submitted a question by way of a Comment on the “The Emasculation of Tribunals Ontario” post.
THE QUESTION
Might you [this author] suspect that these vacancies could also negatively impact the categorization of such tribunals as “expert” tribunals. That is to wonder, if the quality of decisions deteriorates, could the trickle-down impact be to diminish the “expertise” for which these Tribunals have been recognized?
Especially in the context of the release of ‘Vavilov’ by the SCC.?
Is the integrity of these Tribunals at risk given The Court’s analysis of “relative expertise” in the ‘Vavilov’ decision? Is there a likelihood of increased judicial review?
THE RESPONSE
Thank you, Erin, for the question:
Vavilov, as I understand it, has removed “relative expertise” as a consideration in determining the standard of review, but has retained it as a question to be folded into the reasonableness review. It seems that, in its assessment of the reasonableness of a tribunal decision, a court is to consider whether the tribunal’s specialized expertise, relative to the court’s expertise, may explain and justify a result that strictly from the perspective of the court’s expertise might otherwise be thought unreasonable. See Vavilov, paras. 31, 46, and 75.
It is, in my opinion, doubtful that the reduction of the average experience of Tribunals Ontario adjudicators caused by the government’s reappointment and appointment policies would impact significantly on a court’s reasonableness review, especially with respect to tribunals such as the Landlord and Tenant Board and the Human Rights Tribunal whose expertise would not in any event be regarded by the courts as much different from their own.
One might expect, however, that a tribunal, largely reliant on rookie adjudicators, will be more likely than one with experienced adjudicators to make mistakes – to make decisions that would not withstand a court’s reasonableness review – even if, in that review, the court continued to formally respect the institutional expertise behind the decisions
A BETTER QUESTION
More to the point, in my view, is the question of the impact of the Government’s reappointment and appointment policies on the manifest dependence and perceived bias of Tribunal Ontario‘s tribunals and their adjudicators. The government’s demonstrated preference for short-term appointments**, taken together with its well-known abandonment of the previous government’s commitment to assured, merit-based reappointments, now leaves individual Tribunal Ontario adjudicators in the position of knowing, or at least being seen to know (which in law amounts to the same thing) that the continuation of their personal careers as adjudicators depends on their being careful not to issue decisions that displease the government or its friends or allies in any serious way.
** Note, for example, that the current PAS data indicates that the Executive Chair of Tribunals Ontario is on a second, one-year term of appointment. She was reappointed on January 1, 2020, to a one-year term expiring on December 31, 2020, following a one-year term that expired on December 31, 2019.
CONCLUSION
Thus, it may well be that the government’s appointment and reappointment policies respecting Tribunals Ontario’s adjudicators will spark a greater number of judicial review applications, but, in the author’s opinion, that increase will be based on obvious mistakes from less experienced adjudicators or on concerns about the tribunal’s perceived bias [see below], not on the expertise issue.
Although, it is not impossible to imagine a situation arising with respect to a decision of a tribunal, such as, perhaps, the Assessment Review Board, where non-court expertise is more in play, in which a court, knowing about the drop-off of experienced adjudicators, might be inclined for that reason to give less weight than it might otherwise, to the Board adjudicator’s “expert” reasoning on issues of an arcane or technical nature.
But a Reasonableness Standard of Review is not Necessarily a Given
I should, perhaps, in this context, also mention that, it is not, in my opinion, a given, notwithstanding Vavilov, that the standard of review for the decisions of Tribunal Ontario‘s adjudicative tribunals will always be reasonableness.
If an unsuccessful party could show, for instance, that there are grounds for an informed observer to have a reasonable apprehension that a Tribunals Ontario adjudicative tribunal, or its adjudicators, are not independent or impartial – grounds such as the arbitrary nature of the government’s reappointments policies – then that would be a basis for challenging the court’s assumption of a deference-based reasonableness standard of review.
In those circumstances, the court’s respect for the Legislature’s institutional design choice would cease to pertain as a basis for deference since the court could not credibly proceed on the presumption that the Legislature intended to assign justiciable issues to a tribunal that the executive branch’s policies had rendered biased in the executive branch’s favour; nor is there any institutional, structural justification, such as relative expertise, for deferring to the decisions of adjudicative tribunals or their adjudicators when they have been shown to be, in fact or in law, biased.
It is notable that, in Vavilov, the question of the independence or possible bias of the administrative decision-maker never came up.
No doubt, we will have more discussion of this standard-of-review question later.
RE