Judicial Tribunals – Ontario’s Appointment and Reappointment Policies – Drilling Down

INTRODUCTION

The appointment and reappointment policies for tribunal judges serving in Ontario’s judicial tribunals are specified in Part 3 of the Ontario Agencies and Appointments Directive, which may be found at https://www.ontario.ca/page/agencies-and-appointments-directive#section-5

Important Terminology Note:

Of course, the policy Directive employs the terminology of the ATAGA Act and of the law, generally, in which judicial tribunals are called “adjudicative tribunals”, and tribunal judges are called “vice-chairs” or “members”, and chief tribunal judges are referred to as “chairs”, or “executive chairs” (of a cluster of tribunals), and associate chief tribunal judges are referred to as “associate chairs”(of a clustered tribunal).  But, as I have argued in an earlier post, the latter are labels that, while traditional, nevertheless obfuscate the nature of what tribunals and tribunal judges do and the importance and significance of their work in our society and system of justice, especially for the uninitiated.  So, in this post I have taken the liberty of using the labels that make clear who they are and what they actually do in justice-system terms.

The reader may find it takes a minute or two to tune their ears away from the utterly familiar and become comfortable with the use of this clarifying terminology but I have found the effort to be worthwhile myself in terms of adding to the clarity of one’s understanding of the implications, and I hope others will have the same experience.  Thank you, in any event, for the effort.

The substantive import of the appointment/reappointment policies for Ontario’s tribunal judges is not readily apparent from a casual reading of the Directive’s extensive but often succinct text, and the following amplification is offered as an aid to understanding.

In considering these policies, it is important to note at the outset that the Directive stipulates that the same appointment/reappointment policies apply to both judicial tribunals and regulatory agencies.  And this conflation of appointment/reappointment policies for regulatory agencies which are designed to do the government’s business, with policies for judicial tribunals supposed to be doing the court’s business, does not bode well for the Ontario’s tribunal system of justice.

THE POLICIES

1. The initial appointment of a tribunal judge to a judicial tribunal can be for a term of any length so long as it is not more than two years.
2. After their initial appointment, tribunal judges are eligible for – but not entitled to – numerous reappointments to the same position for terms of such variable length as the government may from time to time decide.
3. Each of those reappointments is contingent on both the recommendation of the chief tribunal judge and the government’s approval.
4. The government reserves to itself the right to refuse approval of any reappointment despite the chief tribunal judge’s recommendation, and to do so without notice.
5. At the end of their first term, tribunal judges are eligible for reappointment to a second term of any length so long as it is not for more than three years.
6. If there is a first reappointment for a term of less than three years, then at the end of that term the tribunal judge becomes eligible for further reappointments until the terms of their reappointments add up to three years.
7. At the point where their first appointment term, together with the terms of the first reappointment – or the first set of reappointments – adds up to five years, tribunal judges become eligible for another series of one or more reappointments for terms of any length the government may choose, provided that none are greater than five years and, together, they do not exceed five years.
8. When the terms of their appointment and reappointments add up to ten years, tribunal judges are no longer eligible for reappointments to that position except when exceptional circumstances justify a further reappointment in the public interest.
9. Tribunal judges serving their last term within the 10-year limit will only be eligible for a further term in the public interest if: (1) the chief tribunal judge is able to convince the government that there are exceptional circumstances (perhaps out-of-control backlogs) requiring an extension of their term in the public interest, and (2) the chief tribunal judge can demonstrate to the government that an active recruitment effort has failed to find a replacement candidate whose qualifications are the equal of those of the tribunal judge for whom the extended appointment is proposed.
10. These policies apply to all tribunal judges, and also to associate chief tribunal judges.
11. The appointment and reappointment of chief tribunal judges are subject to the same policies concerning the length of terms except that the government may waive the two-year limit for the first appointment. There is no requirement for anyone to recommend a chief tribunal judge’s reappointment.
12. It is also this government’s policy that tribunal judges who have been denied an appointment or reappointment, or whose service has been timed-out under the 10-year limit, are not eligible for appointment to any other Ontario tribunal.

The View from the Perspective of Potential Candidates

In light of those policies, qualified, fully-informed candidates considering an appointment as a tribunal judge to an Ontario judicial tribunal will be contemplating this bleak picture:

1. To have a successful career as a tribunal judge on a judicial tribunal, candidates must initially accept a contract for two years or less and must thereafter count on being gifted a series of reappointments; in each case to terms of uncertain length.
2. Regardless of their performance and their chief tribunal judge’s recommendations, each of those reappointments will be in the government’s discretion and may be arbitrarily refused without notice.
3. The government’s reason for rejecting any of a tribunal judge’s recommended reappointments might be a need to downsize the tribunal, but might also reflect the government’s uncertainty regarding that judge’s loyalty to the government’s interests in matters dealt with by the tribunal – uncertainty arising from one or more of their decisions – or it might be merely the desire to make room on the tribunal for someone else.
4. If the government chooses to refuse a pending and recommended reappointment, the tribunal  judge affected is not entitled to any notice of the refusal, and will receive no compensation in lieu of notice. It is also to be expected that there will be no explanation as to why the recommended reappointment was refused, and thus, de-appointed tribunal judges – to coin a phrase – will have nothing to say to a prospective employer as to why they appear to have failed in their previous employment.
5. A refusal of any expected reappointment renders the de-appointed tribunal judge ineligible for appointment to any other Ontario tribunal.
6. If expected reappointments are not approved, the tribunal  judges affected are likely to suffer a significant loss of income because they will find themselves commencing, on short notice, an unexpected search for new employment in a situation where they are considered by the government to be ineligible for appointment to other Ontario tribunals and where conflict of interest rules prohibit their employment as an advocate appearing before the tribunal for whom they have been working as a judge – the positions for which their tribunal-judge experience would be most relevant – for a period of 6 months or a year after they have released their final tribunal decision.
7. Whenever the government chooses to reappoint a tribunal judge, the reappointment may be for the maximum reappointment term which the Directive allows, but, in the government’s discretion, may be for any lesser term “up to” the maximum. If the government were uncertain about the judge’s loyalty to its interests, it would be free to reappoint them to a shorter term or to a series of successive shorter terms, thus effectively placing them on probation.
8. Should there be a change of government in the midst of an appointment or reappointment term, tribunal judges may expect the new government to exercise its rights under the Directive to refuse their next reappointment in order to make room for candidates the new government prefers.
9. Whenever they are reappointed, tribunal judges will face the same degree of uncertainty regarding their next reappointment as they faced in each of their previous terms.
10. If a tribunal judge is fortunate to receive a number of reappointments, then, when their terms of appointment and reappointments in a given position add up to a total of ten years, and an exceptional extension in the public interest is refused, they will at that point become ineligible for further reappointments to that position or, significantly, for an appointment to a tribunal judge position at any other of Ontario’s tribunals.
11. If a trbunal judge is serving the last term within their ten-year limit and has reason to hope for a public-interest extension beyond the ten-year limit, they will serve out their final term distracted by the uncomfortable knowledge that their chief tribunal judge is actively seeking to recruit an outside replacement who is as good or better than they are.
12. While tribunal judges are serving in the last term allowed under the ten-year limit, they will be prevented by conflict-of-interest rules from searching, during their term, for their next job amongst the potential employers who are best able to offer work for which their tribunal judging experience would be most relevant.
13. For however long a tribunal judge may serve in the position, their ethical obligation to decide impartially – to go where the evidence and law fairly takes them regardless of where the government might prefer them to go – will always be in conflict with their personal interest in not having their career – and income – disrupted by the arbitrary refusal of an expected reappointment by a disappointed government.
14. Because of these policies, for however long they may serve as a tribunal judge they must expect parties appearing before them to believe that they are at least unconsciously biased in favour of any government interest in the matter at issue.

In summary:  An optimally-qualified potential candidate will recognize that to accept an appointment as a tribunal judge in an Ontario judicial tribunal is to accept exceptionally precarious employment that is publicly dependent and conflicted, and which cannot, in any event, be expected to last longer than ten years.

CONCLUSIONS

It is apparent that these policies are unacceptable justice policies for two reasons: first, because, in breach of the rule of law, they destroy both the fact and the appearance of tribunal judge and judicial tribunal independence and impartiality, and, second, because they guarantee a less than optimal level of tribunal expertise and competence.

Independence and Impartiality

It is self-evident that these policies are destructive of independence and impartiality for both tribunal judges and their tribunals. Tribunal judges cannot be, or, just as importantly, cannot, as the law requires, be seen to be, independent and impartial when it is apparent to everyone that, while they are judging a dispute, they do so knowing that, at the always pending end of their current term, the government is entirely free to remove them from their employment should it, or its supporters, disapprove of their decision.

A judicial tribunal whose judges all suffer from that same insecurity of tenure cannot be or be seen to be institutionally independent or impartial.

Expertise and Competence

The policies guarantee a less than optimal level of judicial tribunal expertise and competence because:

1. The policies render the judicial tribunals’ judging positions singularly unattractive to optimally qualified candidates, thus ensuring that successful candidates will, as a group, be less than optimally expert and competent;
2. The uncertainties surrounding the always-looming reappointment decisions will ensure that those who are appointed as a tribunal judge will always be looking for – and the best of them leaving for – more stable employment elsewhere; and
3. The policies undermine the experience, confidence, standing and abilities of tribunal leadership in each of the chief and associate chief tribunal judge positions because of: (a) the government having to draw the candidates for those positions from a less than optimally competent or experienced pool of tribunal judges; (b) the vulnerabilities inherent in the uncertainties concerning the incumbents’ terms in those positions; and (c) a structurally-driven, less than optimal retention rate for those who are best-qualified to fill those leadership positions.

POSTCRIPT

HERE’S THE QUESTION

 

In short, the government has created judicial tribunal judging positions that are not intended for optimally qualified, career-seeking professionals; which leaves the question: for whom are they intended?  

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RE