This is Section ‘B’ of the Bill of Particulars, the Section that details the trailer-park damage inflicted by the Ford administration on the targeted tribunals’ expertise; damage which in the author’s view clearly warrants the conclusion that Ford eviscerated the tribunals’ expertise credential.
This is the third trailer-park post and for those visitors who have come late to the party the first post may be found here, and the second here. In this series of posts, the author has evoked the imagery of tornado damage in trailer parks as a means of calling out the appalling extent of the damage inflicted by the Ford administration on adjudicative tribunals in Ontario’s Tribunal Justice System 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 justify its positioning as a court-substitute in the rights-based resolution of disputes: independence, impartiality, expertise, and competence, and asserted that all four of those credentials have been severely damaged. The first post promised subsequent postings of a Bill of Particulars detailing that damage. And, as indicated, this is Section B of that Bill of Particulars.
CLUSTERS AND CROSS-APPOINTMENTS
Clusters and cross-appointments have figured as prominent context in Ford’s abuse of the Tribunal Justice System and for the less-than-expert reader here is a description of those aspects of Ontario’s Tribunal Justice System.
The ATAGA Act (enacted in 2009) authorizes the government to bring together “two or more adjudicative tribunals” in what is called a “cluster”, where “the matters that the tribunals dealt with were such that [in the opinion of the government] they could operate more effectively and efficiently as part of a cluster than alone”. The previous government had exercized this authority to form three clusters: Environment and Land Tribunals Ontario (ELTO), Social Justice Tribunals Ontario (SJTO), and Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO), encompassing a total of 19 individual tribunals. On January 1, 2019, the Ford administration collapsed these three clusters into one super cluster of 19 tribunals, called “Tribunals Ontario”, and a year and a half later reorganized those 19 tribunals into two clusters: 5 tribunals in the “Ontario Land Tribunals” cluster and 14 in the “Tribunals Ontario” cluster. The current list of tribunals in each of the clusters may be found in O Reg 126/10.
Many of the targeted tribunals are to be found in these clusters, including, for instance, in the Tribunals Ontario cluster: the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, the Social Benefits Tribunal, and the Child and Family Services Review Board , and, in the Ontario Lands Tribunals cluster: the Environmental Appeal Tribunal and the Local Planning Appeal Tribunal (formerly the OMB). Others of the targeted group continue to operate outside the clusters, including, for example, the Consent and Capacity Board, theHealth Professions Appeal and Review Board, and the Health Services Appeal and Review Board
Clustering per se is not incompatible with the specialization from which expertise is derived since the tribunals within each cluster remain autonomous units, exercising the adjudicative powers defined by their own constituent statutes, with new members appointed not to cluster positions but to the tribunal’s positions, pursuant to the appointment powers in their own statutes. The adjudicative work of each of the clustered tribunal is structured in the same way as it was before it was moved into the cluster.
There is, however, one change that is particularly important to note in the context of assessing the impact on a tribunal’s expertise credential of its immersion in a cluster. When a tribunal is clustered, its tribunal-chair position is downgraded to the position of “Associate Chair” reporting now to the Cluster’s “Executive Chair” rather than to the responsible Minister, and their power to recommend appointments and reappointments respecting their tribunal’s members is transferred to the cluster’s Executive Chair.
The latter change impacts on a tribunal’s expertise credential because the power to determine which candidates have sufficient, relevant expertise to warrant their appointment to the tribunal, or their reappointment, has passed from the tribunal’s chair (now the associate chair) who is in the best position to make that assessment, to the cluster’s executive chair who, given the executive chair’s responsibility for a large number of tribunals with different jurisdictions, is not well-placed to assess the expertise needs of any particular tribunal.
So, unless one has an Executive Chair who, in making the appointment and reappointment recommendations, is willing and able to rely on the advice of a tribunal’s experienced Associate Chair, the quality of the tribunals appointments and reappointments and, therefore, the tribunal’s expertise, is in danger. As we will see in a moment, in the Ford era, the Executive Chairs have mainly had to do without the advice of experienced tribunal Associate Chairs; which is to say that the specialized, expert tribunals were put effectively under the direction of a non-expert leader.
One feature of a cluster of tribunals that was probably not expected is the enhanced use of cross-appointments among the clustered tribunals. With the clustered tribunals each sharing the same administrative support structure, and being led by the same Executive Chair, the openness to appointing individual adjudicators to more than one tribunal – to make what are known as “cross-appointments” – increases.
Cross-appointments between tribunals who have overlapping expertise have been known for a number of years. An example would be a WSIAT adjudicator, expert in the assessment of medical evidence related to disabled workers, cross-appointed to the Social Benefits Tribunal – a tribunal also in need of expertise in the assessment of medical evidence (in hearing appeals concerning disability benefits). Such cross-appointments help with the efficiency of both tribunals as they allow the shifting of resources in response to caseload variations. However, to justify the practice, the cross-appointed adjudicators must bring to their cross-appointment an expertise that is a reasonable fit with the expertise requirements of the tribunal to whom they have been cross-appointed. Without that fit, parties appearing before an expert tribunal may find their case being heard by a cross-appointed non-expert adjudicator – in effect, by a tribunal that with respect to that case has forfeited its expertise credential.
It may be noted, that cross-appointments appear to be made by executive-government action unconnected with the selection processes required by the ATAGA Act. They happen, not because an incumbent adjudicator in one tribunal applies for appointment to a vacancy in a second tribunal and competes for that appointment with other applicants, but because the government decides that a cross-appointment of a particular member is convenient and the chair of the recipient tribunal has no objection. (Now, as we have seen, with clustered tribunals that power to object to any appointment, be it a cross-appointment or a first appointment, resides in the non-expert Executive Chair.)
THE BILL OF PARTICULARS
SECTION ‘B’: EVISCERATION OF THE TRIBUNALS’ EXPERTISE
CROSS-APPOINTMENTS GONE WILD
In the Ford era, as with so much else affecting adjudicative tribunals the cross-appointment power has been widely abused. Individuals have been commonly listed in the Public Appointments Secretariat data base as being appointed as an adjudicator member of several tribunals at the same time, including at least one individual being shown as appointed to 18 of the 19 tribunals in the original Tribunals Ontario cluster. Many of these appointments were patently invalid since it was obvious that these individuals could not have participated in the required competitive ATAGA selection process for so many tribunals and, if they had done so, they would have been unlikely to have had such a diverse set of qualifications to have won each of the competitions. It is beyond this author’s research resources to know how often or whether adjudicators with multiple-tribunal appointments were actually assigned to adjudicate cases for the various tribunals in which they were shown to hold appointments but for which they did not have the required qualifications. It is evident, however, that, to the extent such assignments were made, the parties to those cases would have had their rights decided by an adjudicator without a valid appointment or the expected expertise credential.
The government’s reasons for appointing individuals to numbers of different tribunals for most of which they could not have in fact been qualified was never clear. Perhaps, the practice served the purpose of bolstering the number of adjudicators shown on an individual tribunal’s public roster when the paucity of the actual roster might have been seen to be too telling. One also suspects that many of these multiple appointments were made to serve as bookmarks, reserving the appointment spaces pending the development of some future strategy, or, perhaps, awaiting the appearance on the horizon of more welcome candidates.
So, here is the first item of damage to be listed in the expertise Section of the Bill of Particulars (this Section B): the undermining of the public’s confidence in the expertise of adjudicative tribunals through the identification of individuals as adjudicator appointees who could not have had the required qualifications for those appointments and who could not have been appointed pursuant to the ATAGA selection process.
REMOVAL OF THE EXPERT LEADERSHIP
While, for tribunals that become part of a cluster, the leadership powers regarding the appointment and reappointment of members are moved from the tribunal’s Chair (now Associate Chair) to the cluster’s Executive Chair, nevertheless the nexus of the operational leadership for each of the clustered tribunals necessarily remains situated –de facto – with those who had been the tribunal’s Chair and had now become the Associate Chair. They were the chief experts in that tribunal; the ones whose intimate knowledge of the subject-matter of the tribunal’s field of jurisdiction and of the governing law and tribunal jurisprudence, and of the strengths and weaknesses of the tribunal’s roster of adjudicators, qualified them to direct and supervise the work of the tribunal; the ones whose expertise and abilities had the respect of the tribunal’s adjudicators and staff and to whom adjudicators and staff looked to for advice, direction, problem solving, crisis management, mentoring ….
For the targeted tribunals, the Ford government’s policy seems to have been to get rid of these de facto leaders – Associate Chairs or tribunal Chairs – as soon as possible. Thus, whenever an incumbent tribunal Chair or Associate Chair’s term of appointment expired, the Ford Government refused the expected, routine re-appointment, leaving that leadership position vacant, and that tribunal effectively leaderless.
Those Associate-Chair vacancies were typically left vacant for months at a time and when they were filled they were frequently filled with people in an acting capacity or with new appointees without the depth of expertise and qualifications that they would previously have required to qualify for a chair position in the pre-Ford regime.
The members filling the leadership positions were also typically appointed to very short terms – often as short as one year or less – thus signalling the government’s view of their appointment as probationary.
Thus, in the clusters, the non-expert Executive Chairs were left to exercise their appointment and reappointment recommendation powers without the benefit of expert advice, with a corresponding, inevitable dilution in the quality of expertise of new appointees.
REMOVAL OF ALL EXPERT ADJUDICATORS
With rare exceptions, it has been the Ford government’s policy to routinely refuse to reappoint any of the incumbent adjudicators on the targeted tribunals when their current, pre-Ford terms expired, regardless of the quality of their performance and without respect for the impact of those refusals on their tribunal’s institutional expertise.
REPLACEMENT OF EXPERT ADJUDICATORS WITH CANDIDATES WITHOUT DIRECT SUBJECT-MATTER, OR ADJUDICATIVE, EXPERIENCE
Finally, when the removed tribunal experts were replaced, if they were replaced (the reader will recall that 50% or more of the vacancies created by the policy of refusing expected reappointments were not filled), the published descriptions of the new appointees’ prior careers often disclosed little of real depth in the tribunal’s specialized field of law or in the business of adjudicating rights disputes. Moreover, it seemed that a disproportionate number of the new appointees could be seen to have had important connections to the Progressive Conservative Party, thus suggesting that the ATAGA-required, “competitive” selection process was being influenced by irrelevant partisan or patronage considerations, and, accordingly, was not competitive at all.
DICTIONARY: “Eviscerate: to deprive something of its essential content”.
So yes, given all of the above, it is right to say that the Ford administration can be fairly said to have eviscerated the expertise credentials of Ontario’s adjudicative tribunals.
STILL TO COME
Section C and D of the Trailer Park Bill of Particulars.
Section C: Independence
Section D: Impartiality