This post is about the issue of arbitrary reappointment regimes for tribunal adjudicators.
Ontario Lawyers and paralegals will have noticed the Law Society of Upper Canada advertising recently for a full-time chair and part-time adjudicators for the Law Society Tribunal – the Tribunal that adjudicates complaints against lawyers and paralegals. The advertisements reflect recent structural reforms of that Tribunal which are designed to convert the Tribunal to a professional adjudicative body. (The details may be found in the Tribunal Committee’s Report to Convocation dated June 28, 2012.) And, if I may be allowed to say so, the reforms are generally admirable.
Law Society’s Merit-Based Reappointments Policy
Of particular interest to the administrative justice system at large, however, is the Law Society’s decision to base the reappointments of the Tribunal’s adjudicator members – both the bencher and non-bencher adjudicators – on an evaluation of their performance as adjudicators pursuant to a formal performance evaluation system. The pertinent paragraph in the Report’s Executive Summary reads as follows:
As no formal evaluation system currently exists, one of the new Chair’s responsibilities will be to develop and recommend an evaluation system to Convocation to be used to assist adjudicators to improve and to determine who should be re-appointed. The introduction of an evaluation system will be a significant change to the Law Society’s Tribunals structure and culture, but the Committee considers this essential to the effective operation of any model that is designed to ensure quality adjudication. [Emphasis added.]
Given the standing of the Law Society of Upper Canada in our legal system’s culture, this is a precedent that may be influential in eventually bringing the administrative justice system around to recognizing the requirement for merit-based and evaluation-driven reappointments for its own adjudicators. It should in any event serve to alert adjudicative tribunal users everywhere, and their representatives, to the fundamental importance of merit-based, evaluation-driven reappointment regimes for the adjudicative tribunals with whom they do business.
Reappointment regimes as we know them are unlawful
Reappointment regimes based on the assumption that the reappointment of adjudicators are within a government’s untrammeled discretion, and in which requests for reappointment are judged against unknown criteria in a secret process and periodically rejected, without regard for their substantive merit and for reasons that are never given, are, in my submission, self-evidently incompatible with the rule of law. And, where they exist, which is everywhere in Canada (other than Quebec), they provide more than ample grounds for a reasonable apprehension of bias respecting any tribunal subject to that regime. (See Unjust by Design at pages 79-85 and 263.)
But that was fixed in Ontario wasn’t it? We thought so, but no …
But, Ontario lawyers might be saying to themselves, hasn’t this already been fixed in Ontario? Doesn’t the Adjudicative Tribunal Accountability, Governance and Appointments Act, 2009 (ATAGAA) require merit-based reappointments?
When ATAGAA first made its appearance, it is true there was reason to believe the reappointments problem in Ontario had, indeed, been fixed. The Ontario legislature seemed to have committed to a merit-based reappointments process that would require the introduction for each adjudicative tribunal of formal performance evaluation systems including, implicitly, a procedure for ensuring that the evaluations were fair and objective.
S. 14(1) of that Act reads as follows:
14. (1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:
1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.
2. Aptitude for impartial adjudication.
3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules. 2009, c. 33, Sched. 5, s. 14 (1).
While it is true the Act did not use the word “reappointments”, it is a fact that a reappointment is also an “appointment” to which s.14(1) would apply in the ordinary course. However, in ATAGGA’s regulation-making power one finds the power to waive any of the appointment requirements under section 14 – see s.23(e). And, in June 2011, the government enacted Ontario Regulation 88/11, dealing with the appointments to adjudicative tribunals. Section 2 (1)1 of that Regulation reads as follows:
2. (1) The requirement in subsection 14 (1) of the Act to use a competitive, merit-based process for selecting a member of an adjudicative tribunal is waived in the following circumstances:
1. If a member of the tribunal is being reappointed.
It is true that something had to be done about s.14 as far as reappointments were concerned. The section’s stipulation for a competitive process was clearly not appropriate for reappointments. However, the regulation-making power authorized the waiver by regulation of “any requirement” under s. 14, and, so, the regulation could have waived the “competitive” requirement with respect to reappointments without waiving the “merit-based” requirement.
The decision to eliminate the merit-based reappointment requirement along with the competitive process requirement is not surprising however, because, outside of Quebec (with, I believe, the single exception of the reappointment process specified for the members of the B.C. Workers’ Compensation Appeals Tribunal), no Canadian government has ever relinquished its arbitrary control over the reappointment of adjudicators. And when the Ontario government realized that s. 14(1) of the ATAGAA might be interpreted as having done just that, putting that right can be expected to have found its way to the top of someone’s to-do list.
It is possible the government eliminated the merit-based requirement accidentally in the course of getting rid of the competitive process requirement. However, arbitrary reappointment powers are so rooted in the administrative justice tradition in Canada and so much in a government’s interest, that restoring those powers in Ontario is unlikely to have been accidental. And, of course, if it were unintended, the mistake could be easily rectified.