GIVEN THE TEN-YEAR CAP*, WHAT ARE THE AVERAGE NUMBER OF YEARS-ON-THE-TRIBUNAL THAT ONE CAN TYPICALLY EXPECT TO FIND IN AN ADJUDICATIVE TRIBUNAL’S ROSTER OF JUDGES?
* The government rule that no one may serve more than a total of 10 years in successive terms of appointments to an adjudicative tribunal position in Ontario. The rule was imposed by the McGuinty government in 2006, and continues to be enforced by the Ford government.
WHAT IS THE MEDIAN NUMBER?*
* “Median” – the number of years of on-the-tribunal experience marking the point at which the number of adjudicators whose personal time on the Tribunal falls below that point, equals the number whose time on the tribunal sits above that point.
Here are three questions for some math wizard out there – questions the author does not seem equipped to answer.
FIRST, THE ASSUMPTIONS
Assume that, as of April 1, 2024, the beginning of Tribunal XY’s 2024/2025 operational year, the Tribunal has the following roster of tribunal judges: 1 Chair; 8 Full-Time Vice-Chairs; 20 Full-Time Members; 10 Part-Time Vice-Chairs; and 16 Part-Time Members; for a total of 55. Also assume that over the time covered by the calculation the number of roster positions remained the same – that is, the caseload remained stable and no downsizing or increase of the roster was necessary.
Assume that, at all relevant times, new appointees to this Tribunal have been appointed, first, for a 2-year term, followed by a 3-year renewal term, followed by a 5-year renewal term, for a total of 10. Also assume that 10% of new appointees will fail to meet their tribunal chair’s expectations and will not be renewed for a second term, but all other appointees, having been chosen in qualifications-driven, merit-based and competitive selection processes, have proven to be successful performers who have always had their successive terms renewed until timed-out by the 10-year cap (except for those who have resigned in the meantime in the circumstances set out below).
Assume that the ten-year cap was in place when each of these tribunal judges were first appointed and had been in place for more than ten years prior to that. Also assume that, every year, the appointments of the timed-out judges in each of the categories are not extended and the timed-out judges are replaced by candidates with zero Tribunal XY experience, appointed to their first (two-year) term in the same category.
To simplify the calculation, assume that each new or renewed term of appointment always begins at the start of the Tribunal’s operational year, and each term that is not renewed by reason of the incumbent being timed-out under the rule, or as a result of a non-renewal or a voluntary retirement (see below), ends at the end of the current operational year.
THEN THE QUESTIONS
Question No. 1
On the first day of Tribunal XY’s operational year of 2039/40, what will be the average time on the tribunal for each of the roster categories, and what will be the median time on the tribunal for each of the roster categories at that same point of time?
Question No. 2
Assume that, in each operational year, 15% of the tribunal judges in each of the categories, other than the Chair, do not wait to be timed-out, but resign at the end of their 7th year of service to take less precarious work elsewhere and are replaced by candidates with zero Tribunal XY experience. Assume also that every five years, one of the Full-Time Vice-Chairs serving at the end of their three-year term is moved out of that category and appointed as Tribunal Chair when the current Chair’s appointment is timed-out, with the resulting Full-Time Vice-Chair vacancy being filled by a two-year term appointment of a candidate with zero Tribunal XY experience.
Given those assumptions, what will be the average time on the tribunal of the tribunal judges in each of the roster categories on the first day of the 2039/40 operational year, and what will be the median time on the tribunal of the tribunal’s judges in each of the roster categories at that point?
NOTE: Please make whatever other assumptions may be necessary to make sense of the questions.
Send the answers and the supporting calculations to this author. If he shares those answers, he will do so without attribution unless instructed otherwise.
Any other insights into the generic impact of the 10-year cap on the expertise and competence of tribunals would be welcome with the same assurances of no attribution.
The Author’s Best Guess
After struggling and failing to find a mathematical formula, this author’s own best guess is that both the average and median time on the tribunal, counting all judges across all the categories, would typically hover around 3 to 4 years – this in the context of the general belief that it takes about two years on the tribunal under the mentoring of senior members before a new appointee can be considered fully qualified.
Some Actual Facts
In the two years between March 31, 2018 and March 31, 2020, 42 of the 148 tribunal judges serving at the beginning of that period on the Landlord and Tenant Board, Human Rights Tribunal, and Social Benefits Tribunal were subsequently timed-out under the 10-year cap, with, as far as one can see, no special, public-interest extensions. Thus, over the course of two years, the 10-year cap appears to have removed from Ontario’s administrative justice system 420 years of judging experience from just three of the 37 adjudicative tribunals covered by the ATAGA Act as of March 31, 2018.**
The word “removed” is used advisedly because those timed-out have been deemed by the Ford government to be ineligible for appointment to other tribunals.
** Information based on data found in the Public Appointment Secretariat’s web sites.