The First Case in Point: The Landlord and Tenant Board
“Ombudsman to probe rent tribunal backlog – Number of complaints about long delays at Landlord and Tenant Board has surged” – Toronto Star, January 10, 2020
And so it begins….
The Ombudsman should not have far to look.
WHAT IT WAS
On March 31, 2018, about three months before the new government was elected, the Landlord and Tenant Board had SIXTY TWO adjudicators, including an experienced Associate Chair.*
*See Social Justice Tribunals Ontario’s annual report for the fiscal year ending March 31, 2018. Note: the count of members, here and below, does not include Tribunals Ontario’s Executive Chair, whose name appears on the list of members for each of the tribunals.
WHAT IT IS NOW*
* As of January 11, 2020
In less than two years, this government has removed THIRTY NINE of those adjudicators (i.e., 60%), including the Associate Chair, and replaced them with FOURTEEN new appointees.
The Board’s adjudicator roster now numbers THIRTY SEVEN* of whom only TWENTY THREE were with the Board on March 31, 2018. And the appointments of 10 of the latter will expire in the next few months.
Since the Public Appointments Secretariat is not currently advertising vacant LTB positions, it appears that thirty seven is the number of members the government deems necessary, thus indicating an intended 40% reduction in the adjudicator resources to be assigned to the Landlord and Tenant Board.
The implications of that reduction for the Board’s performance are all the more serious because half of the current members have less than two years of experience on this Board, and it is generally accepted that two years of training, mentoring and supervision is needed before a new member becomes a fully competent adjudicator
*See the Public Appointments Secretariat data for the Landlord and Tenant Board for January 11, 2020.
The Second Case in Point: The Human Rights Tribunal
WHAT IT WAS
On March 31, 2018, the Human Rights Tribunal of Ontario had SIXTY SIX adjudicators, including an experienced Associate Chair.*
*See Social Justice Tribunals Ontario’s annual report for the fiscal year ending March 31, 2018.
WHAT IT IS NOW
In less than two years, this government has removed FORTY EIGHT of those adjudicators (i.e., 73% ), including the Associate Chair, and replaced them with NINETEEN new appointees.
The Tribunal’s adjudicator roster now numbers THIRTY SEVEN * of whom only EIGHTEEN are adjudicators who were with the Tribunal on March 31, 2018. And the appointments of 8 of the latter will expire in the next few months.
Since the Public Appointments Secretariat is not currently advertising vacant HRTO positions, 37 is presumably the number of members the government deems necessary, which represents a 44% reduction in the number of adjudicators to be assigned to the Human Rights Tribunal.
The implications of that reduction for the Board’s performance are all the more serious because 24 of the 37 sitting members have less than two years of experience on this Tribunal, and, as mentioned above, it is generally accepted that two years of training, mentoring and supervision is needed before a new member becomes a fully competent adjudicator
*See the Public Appointments Secretariat data for January 11, 2020.
PROJECTING THE FIGURES FOR
TRIBUNALS ONTARIO OVERALL
FOUR HUNDRED EXPERIENCED ADJUDICATORS REMOVED
TWO HUNDRED NEW ADJUDICATORS APPOINTED
NET REDUCTION IN NUMBER OF ADJUDICATORS: 40-50%
AVERAGE ADJUDICATOR EXPERIENCE UNDER TWO YEARS
Tracking the appointments history for each member of a given tribunal from March 31, 2018 to January 2020 is hard work.* And, tracking that history for each of the hundreds of members serving on the other 17 tribunals in Tribunals Ontario is harder still.
* See below.
Thus, it is difficult for anyone outside of government to get an accurate overall picture. But there is little reason to think that the Landlord and Tenant Board and the Human Rights Tribunal have been singled out for special treatment. And, based on the feedback one receives from time to time from friends and former colleagues now in the system, or previously in the system, it is not unreasonable to assume that the tracked appointments histories of the Landlord and Tenant Board and human Rights Tribunal members will be generally, proportionately reflective of the appointments histories of the members of the other 17 tribunals in Tribunals Ontario.
Applying, then, the tracked appointments histories of the Landlord and Tenant Board and of the Human Rights Tribunal since March 31, 2008, to the other 17 tribunals in Tribunals Ontario as templates generally predictive of the history to be expected for each of those tribunals, it is reasonable to project that since June 2018 the Ford Government has arbitrarily removed from Tribunals Ontario something in the order of 400 experienced, full-time and part-time adjudicators, and replaced them with about 200 inexperienced appointees, bringing the average adjudicator experience down to less than 2 years.
Is this a manufactured crisis, leading to what?
A cut of 40-50% in adjudicator resources, and the removal of 60 or 70% of the experienced adjudicators, will inevitably prevent any tribunal from coping with its incoming caseload, with a surge in complaints, of course, inevitable.
Obviously, the government will have known what to expect. What we have here, one might therefore venture to suggest, is a manufactured crisis; a crisis designed, perhaps, to build support for radical “efficiency” reforms of the tribunals’ hearing processes that will in turn be relied on to justify radical budget cuts; reforms that may be expected to push fair-hearing principles to the very edge.
Not to mention the inevitable decline in the quality of decisions
And then there is the preordained reduction in the quality of Tribunals Ontario’s adjudicative decisions caused by the inexperience of the adjudicators, the pressure to get cases over quickly with dramatically reduced resources, and the absence of experienced members to do the mentoring, training and supervising.
Sad times for those depending on Tribunals Ontario for justice in their every-day lives.
To track the appointments history for any of the Tribunals Ontario tribunals, start with the list of members of that tribunal to be found in the annual report of the cluster to which it belonged for the year ending March 31, 2018. That report shows, for each member serving during that year, the date of their original appointment and the date on which their then current appointment is due to expire.
Then trace the fate of each of those individual members of that tribunal through the annual report of Tribunals Ontario for the fiscal year ending March 31, 2019 (where you will find the same information for the members serving that tribunal during that year) and then to the current Public Appointments Secretariat data for that tribunal.
4 thoughts on “The Emasculation of Tribunals Ontario Cases in point and a Projection”
Painstaking but excellent sleuthing. These numbers should be broadcast through a megaphone!
The best phrase that comes to mind is that what is occurring is “Unjust by Design”. Thank you for writing such an eye-opening book Dr. Ellis.
What a great piece on the decline of our Tribunal system. I don’t know that it is a manufactured crisis – remember George Carlins’ comment “Never underestimate the power of stupid people in large groups.”
Am curious if you suspect these vacancies could also negatively impact the categorization of such Tribunals as “expert” tribunals. That is to wonder, if the quality of decisions deteriorates, could the trickle-down impact be to diminish the “expertise” for which these Tribunals have been recognized? Especially in the context of the release of ‘Vavilov’ by the SCC. Is the integrity of these Tribunals at risk given The Court’s analysis of “relative expertise” in the ‘Vavilov’ decision? Is there a likelihood of increased judicial review?