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 possibilities – of the Canadian administrative justice system was, as they say, a no-brainer.
But, for those readers who do not know about Nick, I thought an explanation would be both fair to Nick’s memory and important – important because Nick is an exemplar of all that one could want in a judicial-tribunal adjudicator in an ideal world.
Nick McCombie was a full-time member of the Workers’ Compensation Appeals Tribunal for 18 years, from 1985 until his death from cancer in 2003. His appointment as a “worker” member of the Tribunal was effective October 1, 1985, the day the Tribunal opened its doors, and he served in that capacity until January 22, 1991, when he was the first worker member appointed a Vice-chair – one of the Tribunal’s “neutral” adjudicators – and he served in that capacity for another 12 years.
Nick was not a lawyer. He dropped out of school in grade 10 to play a guitar for a group called the “Churls” and for several years he moved from job to job as a laborer or truck driver. Eventually he found his way to some part-time studies. Then he happened to hear of a vacancy in Ontario’s Injured Workers Consultant (IWC) clinic and in 1978 he was hired by IWC as a case worker. For the next 7 years he worked as an advocate for injured worker clients of IWC appearing before the Ontario Workers’ Compensation Board, but was also one of the principal leaders in the development and delivery of educational programs for workers’ compensation advocates and in the injured workers’ lobbying of the government for radical reform of the Workers’ Compensation System.
And, on top of everything else, Nick was IWC’s counsel during the three-year proceedings of the Royal Commission on Asbestos. This was the Commission chaired by Dr. Stefan Dupré. Dr. Fraser Mustard was another prominent member and John Laskin now of the Ontario Court of Appeal was Commission Counsel. Linda Jolley was the OFL’s representative at the Commission’s proceedings. The report of that Commission issued in 1984, a year before WCAT came on the scene.
Nick also became Vice-President of OPSEU Local 525 and a member of the bargaining committee for the legal clinics’ staff bargaining unit.
So when Nick came to WCAT in 1985 as one of the Tribunal’s first full-time Worker members, he was an experienced union leader, a hardened advocate for the rights of injured workers with an in-depth knowledge of the Workers’ Compensation Act, and one of the lobbyists who had been prominent in the fight for reform that had led to the creation of WCAT.
As we began to organize WCAT in 1985, one of the goals was to make the Tribunal’s tripartite adjudicative panels work collegially, with both worker and employer adjudicative members committed to working together – and with the panel vice-chair – in getting to the right decision by setting aside partisan considerations at the point of decision. In Unjust by Design terminology, we wanted to rule out “ideological judging” even by worker and employer members. (See Unjust by Design, pages 204-215.)
It was a concept that had been recommended in the Weiler report but was a novel idea in the history of Ontario’s tripartite labour tribunals and, as we began, I worried that it would be a hard sell, particularly to the worker members, and particularly, I thought, to Nick McCombie. I did not know Nick personally at the time but I knew the qualifications he brought to the appointment and, while they were admirable in all respects, they did not suggest someone who would be pleased to put his partisan ideology aside in his new role as tribunal adjudicator.
I was, however, mistaken. Despite his labour-union background and intensely partisan view on workers’ compensation issues, Nick embraced this concept from the outset and, with his combined union and injured worker background he was one of the major influences in having that concept accepted by his worker member colleagues generally, and thus by the Tribunal generally. And so we emerged as a tripartite tribunal where all three members of our adjudicative panels were committed to getting their decisions right, with the result that, over the course of my 12 years as chair, over 95% of all the Tribunal’s tripartite decisions were unanimous. Moreover, it was not unheard of for the worker and employer members of a panel finding themselves in agreement on a majority decision with the vice-chair writing the dissent. Nick’s influence in shaping the adjudicative culture in that way was of central importance.
Nick was also a great adjudicator in his own right – both initially in the role of worker member and then subsequently in the role of Vice-Chair. He proved to have in abundance that great requirement for an adjudicator – an intuitive respect and empathy for the parties and their counsel – not only for injured workers, but also for abused employers, and equally importantly for his fellow adjudicators, including the employer members, and, of course, for the Tribunal’s staff at all levels.
His analytical skills were also first class – with no formal legal training, he was a match for most lawyers in his understanding of the legal issues and of the intricacies in applying the complex workers’ compensation law to particular fact situations – a law that in my experience is as difficult and complex as any that any lawyer is likely to encounter.
Most importantly, Nick was always open to being persuaded by the superior argument, and had the courage and integrity to go where the law and the evidence would fairly take him. And, blessing of blessings, he could write. Moreover, his judgments were always intelligent and thoughtful – not always right, mind, but always intelligently and thoughtfully conceived. So, through the years, including his years as a worker member, he made important contributions to the tribunal’s jurisprudence, as well as providing countless workers and employers with fair hearings and competent, independent, and impartial decisions.
Nick also participated fully in the administrative life of the tribunal. He chaired the Tribunal’s information and library committee in the formative years of the tribunal’s experience with information systems, and his natural interest in and facility with computers served the Tribunal well.
At Tribunal assembly meetings, and in ad hoc committees of various kinds, his views on administrative policies were always influential, and during my tenure as chair I always appreciated his good humoured and gentle, but persistent way of speaking truth to power. A particularly rueful memory of mine is of the poster he posted on his office wall in about 1987, after I had been the author of a 270 page panel decision (now known as Decision No. 915). Across a picture of Alice down the rabbit hole, ran the depiction: ELLIS IN WONDERLAND.
(And, yes, I can hear some not so enthusiastic readers of Unjust by Design saying to themselves, “yep, and here he is, down the rabbit hole again”.)
Among the Tribunal’s worker and employer members and vice-chairs – and staff – Nick was highly respected for his abilities and achievements, and viewed with great affection for his personal qualities, even if at times the puns were truly painful.
And, of course, he turned out to be a scholar. He is one of the three original authors of Workers’ Compensation in Ontario, the first published treatise on Ontario’s workers’ compensation law. Then, in March 2001, Nick was invited to speak to the 5th International Congress on Work Injuries Prevention, Rehabilitation and Compensation in Australia, and the paper he presented on that occasion entitled “You Can Always Appeal” was subsequently published in volume 15 of the Canadian Journal of Administrative Law and Policy (at page 51).
Both he and I were equally delighted to discover that in that volume his paper, and my paper on Super Tribunals, appeared back to back.
You Can Always Appeal is, among other things, an analysis of the WCAT/WSIAT accomplishments as the final level of appeal in a complex workers’ compensation system. You have to question Nick’s impartiality on that occasion because it is not overstating things to say that he clearly loved the institution to which he devoted himself for so many years, and that love shines through in his article. With this article he put WCAT/ WSIAT in the books, as it were, in a manner which should make all those associated with that institution proud.
And, so, no, it was not difficult to know to whom I should dedicate my book.
SRE