The Ford Tornado in the Tribunal Justice Trailer Park – Bill of Particulars, Section ‘C’: Independence Abandoned

INTRODUCTION

This is Section ‘C’ of the Bill of Particulars, the Section that details the trailer-park damage inflicted by the Ford administration on the targeted tribunals’ independence credentials; damage which in the author’s view demonstrates that the Ford administration ignored, disrespected – i.e. abandoned – those credentials.

This is the fourth post in the trailer-park damage series, and for those visitors who have come late to the party the first post may be found here, and the second here and the third 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. The credentials are: independence, impartiality, expertise, and competence and all four have been severely damaged. The first post promised subsequent postings of a Bill of Particulars detailing that damage. And, as indicated, this is Section C of that Bill of Particulars.

Background Information

Beginning in the Peterson/Rae era, with a relapse in the Harris years, and a strong renaissance under McGuinty, Ontario’s pre-Ford, administrative justice system had evolved into a tribunal justice system in which there was good reason for the public to have confidence in the independence of tribunals and their members. Members of adjudicative tribunals had become professional career adjudicators selected for appointment through a statute-mandated, competitive, qualifications-contingent, merit-based, non-partisan process.

Appointed initially to a two-year term, successful adjudicator candidates knew they could count on being routinely re-appointed – first to a three-year term and then to a five-year term – conditional only on their continuing to perform to the satisfaction of their chair as determined through a fair and objective evaluation.  That was the security of tenure they had been promised when they accepted their appointments and that promise had been respected over the preceding 15 years.

It is true that there was a known exception to the reappointments rule.

The exception was the tradition, long-embedded, that the renewal of  appointments that happened to expire in the three months preceding an election would be put on hold pending the election results. This was a relic of the time when, like appointments to regulatory agencies, appointments of tribunal adjudicators were “political” or “partisan” appointments and, as a courtesy to the other parties, governments would forego the opportunities to make long-term, opportunistic partisan appointments – so called “legacy” appointments – on the eve of elections.

As the election approached in 2018, this tradition would have been much in the minds of the Wynne administration because of the widely-publicized criticism of the Harper government for having made multiple, legacy appointments on the cusp of its defeat in the Federal election in 2015. It is not, however, a tradition that can be reconciled with a policy of merit-based appointments of professional adjudicators.

THE BILL OF PARTICULARS

SECTION C: INDEPENDENCE ABANDONED

 

DICTIONARY:  “abandoned” – deserted or cast off.

EARLY NOTICE

In any event, in the summer of 2018, the news that the newly-elected Ford government was refusing re-appointments of meritorious adjudicators whose reappointments had been on hold pending the election, spread like wildfire through the ranks of tribunal adjudicators, and the tribunal justice system’s culture of confidence in adjudicator independence collapsed like a punctured balloon. The new government had effectively given notice that its policy was to regard appointments to adjudicator positions to be political appointments like any other; the 15-year era of non-partisan appointment of professional adjudicators was over. The independence credential had been abandoned.

FOLLOW-THROUGH

As the months went on, the government consistently, with very few exceptions, refused to reappoint adjudicators who had been appointed to the targeted tribunals under the Liberal government, regardless of their abilities and performance, and regardless of the impact of their departure on the tribunals’ competence and expertise.

APPOINTMENTS OF ONE-YEAR OR LESS – A SHOUT-OUT OF DISDAIN

The Ford Government’s abandonment of the independence credential is most apparent in its persistent resort to appointment terms of unprecedented shortness.

By the end of November 2019 (on November 23, to be precise)  – a year and nine months into the Ford adminstration’s term – the Public Appointments Secretariat’s data showed that of the four hundred active adjudicators serving in the 19 adjudicative tribunals within the Tribunals Ontario cluster at that time, more than one-third (one hundred and thirty five) had been appointed by the Ford administration to terms of one year or less.

Fifteen months later – specifically on February 14, 2021 – the PAS data records that, of the seventy eight adjudicators with full- or part-time appointments to the Landlord and Tenant Board, almost one-half ( thirty seven) were appointed to one-year terms.

Obviously, appointments to one-year terms are nothing more than probationary appointments – the antithesis of independence. And the Ford administration’s practice of appointing large numbers of adjudicators to terms of one year or less amounts to a shout-out of this government’s disdain for the independence credential.

“UP TO” ALSO TELLS THE TALE

Government policy concerning the appointment and reappointment of members of adjudicative tribunals is to be found in the  Management Board of Cabinet’s Agencies and Appointments Directive, Part 3, section 3.2.2

The Directive that pertained to appointments and reappointments prior to the June 2018 election (the Directive dated June 2017) provided for an initial appointment of two years after which, subject to the recommendation of the Chair or Executive Chair, the appointee was eligible for a reappointment to a three year term, and, after that, to a five-year term.

The revised Directive which the Ford government introduced to the Society of Ontario Adjudicators and Regulators in November 2019 provided for an initial appointment of “up to two years”, after which, subject to the recommendation of the Chair  or Executive Chair, the appointee was eligible for “a reappointment of up to three years”, and then, “upon completion of terms totalling five years”, the appointee was eligible for reappointment “to a further term of up to five years”. (Emphases added.)

The insertion of the “up to” qualifier regarding the length of both the first appointment and subsequent reappointments, provided an ex post facto authorization for the government’s resort to one-year-or-less first terms and gave adjudicators notice that they could not count on their reappointments of 3 years and then 5 years.  Under the revised Directive, any reappointment term would be whatever the government chose it to be, from ‘zero”  up to the specified maximum. Now adjudicators had to worry not only about whether they would be reappointed, but also about how long any reappointment would be. Under these rules, it seems possible that the government could require adjudicators to serve a series of ten, one-year terms until they were timed-out under the 10-year service limit.

But a closer read of these rules may suggest something different: that is, that new adjudicators are only entitled to a total of two reappointments – one reappointment for up to three years, and then, provided the initial term and the term of the first reappointment add up to five years, a second reappointment for up to five years.  Read in that fashion, a new adjudicator appointed to a one-year initial term, as so many of them are, can only look forward to a career of at best four years – the one initial year, and then a first reappointment for the maximum of three years, and then, since at the end of that reappointment their terms will have added up to four years, not five, no eligibility for a second reappointment; moreover, if their first reappointment was also for one year – not two or the maximum of three – then their career would end after two years.

Whatever is to be made of the fine-print of these appointment and reappointment rules, what is perfectly clear is that both the fact of a reappointment and the term of that reappointment are regarded by this government as entirely matters within its sole discretion.

CONCLUSION

The Ford Government’s abandonment of the independence credentials for its adjudicative tribunals and their members is perfectly clear. And the fact that, under its administration, tribunals and their adjudicators cannot be seen to have the independence credential is a fact that disqualifies those tribunals from being lawful substitutes for the courts in the right-based resolution of disputes arising within their fields of jurisdiction. In this respect, see the reference in a previous post to SCC Justice Brown’s concurring reasons in Uber Technologies Inc. v. Heller.

Postscript

Harkening back to the second and third posts in this series, dealing with the damage inflicted by the Ford government on, respectively, the targeted tribunals’ competence and their expertise credentials, one would want, in the light of this fourth post, to note the devastating impact on both of the latter credentials of a government recruiting its new adjudicators on the basis of offering an initial term of one-year with no assurances concerning reappointments.

STILL TO COME

Section D of the Trailer Park Damage Bill of Particulars: Impartiality

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