TRIBUNAL APPOINTMENT AND REAPPOINTMENT POLICIES FACE ONTARIO COURT CHALLENGE

This is exciting news.

The Ontario Superior Court is being given an opportunity to rule on the lawfulness of the government’s policies governing the appointment and reappointment of tribunal adjudicators; policies that are destructive of adjudicator and tribunal independence and undermine the expertise and competence of Ontario’s adjudicative tribunals.

Democracy Watch, represented by Jameel Madhany and Lindsay Woods of Lerners LLP, has filed a Notice of Application challenging those policies.  The Notice was issued by the Court on July 8, 2020 and has been served on the Respondent, Her Majesty the Queen in Right of Ontario as represented by The Attorney General of Ontario.   Democracy Watch is seeking public-interest standing.

A copy of the Notice may be found at: https://democracywatch.ca/wp-content/uploads/FinalNoticeOfApplicOntTribunalConstCaseJuly082020.pdf

From Paragraphs: 2. B. (f) (i) and 2. B. (f) (ii) and 2. B. (g) to (k) of the Notice of Application, one sees that:

  1. The reappointment policies challenged in the action are the policies of:  (A) abandoning routine re-appointments of meritorious adjudicators to successive terms; (B) refusing reappointment applications from incumbent tribunal adjudicators without proper justification or reasons; and (C) refusing meritorious reappointment applications;
  1. The appointment policies challenged are the policies of: (A) appointing tribunal adjudicators to fixed, excessively short terms of appointments; (B) refusing extension recommendations for adjudicators even though the failure to grant the extension places the tribunal’s ability to cope with its caseload in jeopardy; (C) deeming adjudicators whose appointments expired, as ineligible for appointment to other adjudicative tribunals; and (D) deeming adjudicators whose expected re-appointments are refused, as ineligible for appointment to other adjudicative tribunals.
  1. Democracy Watch challenges the policies on the grounds that they are unauthorized because they are inconsistent with the purpose and objects of the statute or statutes conferring the appointment powers; frustrate the legislative scheme under which the power is conferred; and fail to give effect to the competitive, merit-based appointments process that gives consideration to the specific criteria described in section 14 of the ATAGA Act.
  1. Alternatively, if the policies are found to be authorized by the conferring powers, then Democracy Watch challenges the powers themselves as unconstitutional because they violate the unwritten constitutional principle of judicial independence and/or administrative independence and/or the rule of law.

It is apparent from the nature of the challenges that the applicant will be relying in the first instance on the proper-purpose jurisprudence pertaining to the exercise of statutory powers, originating with Roncarelli v. Duplessis.

It is a promising piece of litigation in the public interest, and one that may even lead to the SCC finally recognizing the need for constitutional protection of the independence and impartiality of adjudicative tribunals and their adjudicators.

Thank you, Democracy Watch, for this most important, and what may turn out to be historic, initiative.

RE

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