THE STORM-DAMAGED TRIBUNALS
The Ford storm first hit the Tribunal Justice trailer park in the summer of 2018 and continues to gust as we speak. Of course, as with tornadoes, the storm has not hit every trailer in the park. The damage has been largely confined to the adjudicative tribunals that on January 1, 2019 were clustered together under the single administrative roof called “Tribunals Ontario”, some of which were subsequently dispersed to other clusters.
(That not all adjudicative tribunals have been damaged by the Ford storm is not to say that the fortunate few are storm-proof; it is just that the government has not got around to them yet; they are awaiting their turn.)
The list of tribunals impacted to date includes most notably: The Human Rights Tribunal, the Landlord and Tenant Board, the Social Benefits Tribunal, the Health Professions Appeal and Review Board, the Health Services Appeal and Review Board, the Local Planning and Review Board, the Consent and Capacity Board, the Environmental Review Board, the Child and Family Review Board, the Public Service Grievance Settlement Board ….
The Indispensable Credentials
In assessing the damage caused by the Ford storm, it is useful to remember the credentials on which the legitimacy and justification of adjudicative tribunals depend.
The most important credentials – the ones that allow legislators to substitute adjudicative tribunals for courts – are independence and impartiality .
Without being, and being seen to be, impartial, adjudicative tribunals cannot provide a “just” resolution of disputes and are, therefore, not tribunals the law will recognize. See the review of the law respecting the latter principle in the concurring opinion of SCC Justice Russell Brown in Uber v. Heller as described in this author’s earlier post at https://adminisativejusticereform.ca/tribunal-independence-the-constitutional-foundation-an-epiphany-moment-on-the-road-to-tribunal-justice/.
And, of course, a tribunal cannot be seen to be impartial if it is not first seen to be independent.
The credentials of an adjudicative tribunal that warrant legislators preferring tribunals over courts, are rooted in the tribunal’s specialization in a narrowly focused field of statutory rights, and in its statutory monopoly over the rights-based resolution of all disputes arising in that field. This combination of specialization and adjudication monopoly fosters the development in tribunals of a unique institutional expertise in the subject matter from which the disputes arise and in the governing law. It also fosters the development of institutional expertise and competence in the science and art of expeditiously mediating and adjudicating those disputes.
It is this expertise – expertise the courts do not have – that, when coupled with relevant competence, equips these tribunals to dispense justice more efficiently, more expeditiously, and more fairly than would be possible for the courts.
Thus, it is independence, impartiality, expertise, and competence, that are the indispensable credentials – the necessary underpinnings – that on the one hand legitimize and on the other justify the Legislature’s positioning of an adjudicative tribunal as a right-based dispute resolver in place of the courts – as, if you will, one of the “trailers” in the Tribunal Justice trailer park. And it is these underpinnings – all of them – that have been knocked out by the Ford storm.
THE BILL OF PARTICULARS
Independence (and impartiality) – abandoned
Expertise – eviscerated
Competence – destroyed
For an itemized bill of particulars detailing the Ford tornado’s abandonment, evisceration, and destruction, of the indispensable credentials of adjudicative tribunals in Ontario’s Tribunal Justice trailer park, see the posts to come.
For subsequent posts in this tornadao in a trailer park series, see Bill of Particulars, Section ‘A’ and Bill of Particulars, Section ‘B’ and Bill of Particullars, Section ‘C’ and Bill of Particulars, Section ‘D’.