In the first post in this current series on the damage inflicted by the Ford administration on adjudicative tribunals in Ontario’s Tribunal Justice System, the author evoked the imagery of tornado damage in trailer parks as a means of calling out the appalling extent of the tribunal damage in terms that could not be mistaken.
To focus on the nature of the damage, the first post identified the four “credentials” a tribunal must have to qualify as a court-substitute in the rights-based resolution of disputes, and asserted that all four of those credentials had been severely damaged. The first post promised subsequent postings of a Bill of Particulars detailing that damage. This, Section A of the Bill of Particulars, is the first of those posts.
The tribunals to whom this section of the Bill of Particulars pertains are those the first post identified as the “damaged tribunals”. It might be more to the point to call them the “targeted tribunals”.
This, Section ‘A’ of the Bill of Particulars, details the damage inflicted by the Ford government on the tribunals’ competence credential – damage which in the author’s view clearly warrants the conclusion that the Ford storm destroyed that credential.
The author’s claim that competence has been destroyed should not be seen as a criticism of the qualifications or abilities of the individuals on the current rosters of tribunal adjudicators or of their leaders – the Tribunals Ontario Executive Chair and the tribunals’ Associate chairs. The author has no basis for judging those qualifications or abilities and no reason to think that, with experience in the job, they will not individually come up to an appropriate standard of performance.
The competence the Ford government destroyed is the tribunals’ institutional competence.
THE BILL OF PARTICULARS
A. DESTRUCTION OF INSTITUTIONAL COMPETENCE
BUDGETS CUT IN HALF
Assuming responsibility, in the summer of 2018, for adjudicative tribunals whose capacity to deal appropriately with their incoming caseload was already acknowledged to be at the breaking point, the new government proceeded to cut the adjudicative resources of those tribunals at least by half. Tribunals struggling to handle their caseload with 50 to 60 adjudicators were now asked to do the same work with 25 or 30 or less.
The cut to resources was accomplished mainly by refusing to reappoint incumbent adjudicators as their current terms of appointment expired, and failing to fill 50% or more of the resulting vacancies.
On top of this draconian cut in the number of adjudicators, the tribunals also had to deal with a support-staff hiring freeze.
The Executive Chair of the Tribunals Ontario cluster was replaced by a lawyer with no apparent experience in the subject-matter of the targetted tribunals’ jurisdictions or in the adjudication of rights generally.
When the terms of the incumbent Associate Chairs – the positions which are expected to provide the direct leadership for each tribunal – expired with no reappointment (or were timed-out), those positions were either left vacant or were filled with inexperienced, new appointees, often in an “acting” capacity.
EXPERIENCED MEMBERS REMOVED
With a small handful of exceptions, all experienced adjudicators were refused reappointment when their terms expired, and, with that handwriting on the wall, some adjudicators chose to pursue other career options without waiting for that refusal.
WORK LEFT IN THE HANDS OF NOVICE ADJUDICATORS
As we have seen, less than 50% of the resulting vacancies were filled at all, but those that were filled were filled by new appointees with limited, direct experience in the business of adjudication or in the subject-matter of the tribunals’ jurisdiction. The average number of years of adjudication experience of those in the tribunals’ roster of adjudicators dropped from something in the order of 5 or 6 years in the pre-Ford era to something less than 2 years. (It is generally recognized that it takes about 2 years of experience working in a tribunal under the supervision and training of experienced mentors before a new adjudicator can be considered fully up to speed.)
The new appointees were put to work adjudicating other people’s rights without the benefit of the training, mentoring and leadership that would have been provided in the ordinary course by the departed, experienced adjudicators and leaders.
ABILITY TO ATTRACT OPTIMALLY QUALIFIED CANDIDATES UNDERMINED
By demonstrating the precariousness of employment as an adjudicator in the Ford era, the government lost the ability to attract the interest of optimally qualified candidates – that is, of those with other, less precarious, career options. It thus ensured an overall drop in the general level of competence in those attracted to the work; a reduction that will impact the competence of these tribunals for years to come.
The attractiveness of the positions for optimally qualified candidates was also reduced by the government choosing to replace many of the senior, higher-paying “Vice-Chair” adjudicator positions with the more junior, lower-paid “Member” adjudicator positions.
The result of all this was the destruction of the tribunals’ abilities to deal competently with their incoming caseloads, leading inevitably to burgeoning backlogs, egregious, unconscionable delays, and doubtful or mistrusted decisions; in short, to a tribunal-justice landscape full of tribunals in distress – tribunals in whose competence the public could have no reason to be confident.
It is difficult not to think that these policies must have been part of a deliberate strategy, with the endgame perhaps still not perfectly clear.
And the Pandemic is no excuse. All of these destructive policies were well in train before the Pandemic hit, leaving these tribunals singularly ill-equipped to deal with the new challenges the Pandemic presents for the validation of rights in the areas of the tribunals’ jurisdictions.
STILL TO COME
See future posts for the sections of the Bill of Particulars detailing the damage to the remaining three, indispensable credentials: expertise, independence and impartiality.