Patronagizing the administrative justice system? Are year-or-less appointments part of a plan?

INTRODUCTION

In the November 27 Premonitory Stats post it was suggested by the author that the surprising and unprecedented number of Ford adjudicator appointments for terms of one year or less (22% of the total population of tribunal adjudicators) might not only reflect the government paving the way for substantial budget cuts, but also – or even instead – be part of a plan for paving the way for under-the-radar patronage appointments.

ONE REASON TO THINK SO

One reason for suspecting that it might be a patronagizing strategy is the fact that the mandate of the Standing Committee on Government Agencies to call proposed OIC appointees before the Committee for a public examination of their qualifications and of their relationship to the governing party does not extend to people appointed to terms of one year or less.

Neither does it extend to persons who are being reappointed.

Thus, if patronage appointee XY is first appointed for a term of one year or less, and at the end of that term reappointed for, say, five years, his or her qualifications and connections to the government party will never have been exposed to the Standing Committee’s review.

ANOTHER REASON TO THINK SO

Another consideration that one suspects might be influencing the unprecedented resort to one-year-or-less terms is the fact that reappointments are not governed by the qualifications and selection-process requirements of section 14(1) of the ATAGA Act nor by the public-notice requirements of section 14(3) of that Act.  For persons being reappointed, and for persons being transferred from one tribunal to another,  both of those sections have been, by regulation, waived.

See Ontario Regulation 88/11, sections 1(3) and 2(1), 1. and 3.

It is true that even a one year-or-less appointment of a member of an adjudicative tribunal is technically governed by the section 14 requirements.  However, if one were in fact designing an under-the-radar scheme for obscuring the degree of patronage influences in one’s appointments, one might not mind the risk that someone might actually challenge a one-year-or-less appointment for failure to comply with the section-14 requirements.

For, if that were the plan, it would be a risk worth running; worth running because every one-year-or-less term appointee whose appointment is not subjected to a section 14 challenge (and one could pretty much count on no one being in point of fact bothered to challenge a one-year-or-less term) is a person who can, a year later, be reappointed for a significant term to the same tribunal, or to another tribunal, without any concern about qualifications, without the need for a merit-based and competitive selection process, and without any requirement of public notice.

Just say’ng …

 

RE

 

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