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Tribunal Watch Ontario concerned over shortage of adjudicators, possible shift to written submissions

Friday, June 19, 2020 @ 1:38 PM | By John Schofield

Marion Overholt has seen the frustration on the faces of her clients. The executive director of Legal Assistance of Windsor (LAW) frequently helps low-income clients in critical, sometimes life-altering cases before Ontario’s adjudicative tribunals, including the Landlord and Tenant Board and the Social Benefits Tribunal.

But, time and again, matters have been adjourned because of a shortage of adjudicators.

“It is critical to the administration of justice to ensure that the tribunal appointments are made in a timely matter,” she said in an e-mail to The Lawyer’s Daily. “This is a significant access to justice issue.”

It’s part of a wider problem across the province that’s reaching crisis proportions — made even worse by the impact of the COVID-19 pandemic on ordinary people, according to a new organization called Tribunal Watch Ontario.

The 19 tribunals that come under the Ministry of the Attorney General’s Tribunals Ontario organization decide on a wide range of social issues, including landlord and tenant disputes, entitlement to social benefits, human rights issues, land use and environmental matters, police complaints, parole review, youth custody review, Children’s Aid interventions, business licensing and compensation for people injured in motor vehicle accidents. Ontario has 37 tribunals in total.

But since the election of the Progressive Conservative government of Doug Ford in June 2018, Tribunals Ontario panels have lost almost half of their experienced adjudicators, and most “can no longer fulfill their mandates or meet service standards,” according to a statement of concern released by Tribunal Watch Ontario last month.

The process of adjudicative attrition has left the Environmental Review Tribunal, for example, with only one full-time adjudicator, down from six in 2018, according to Tribunal Watch Ontario.

The watchdog group reported that the number of full-time adjudicators at the Human Rights Tribunal has been allowed to drop to nine, compared to 22 in 2018, while the full-time roster at the Social Benefits Tribunal now stands at 11, versus 22 in 2018. Adjudicator staffing at the Landlord and Tenant Board has been relatively less affected, with a current level of 31, as opposed to 44 in 2018.

The staffing shortage may be worse than it appears because many of the adjudicators are cross-appointed to different tribunals, said lawyer and legal scholar Ron Ellis, a co-founder of Tribunal Watch Ontario and author of the 2016 book Unjust by Design: Canada’s Administrative Justice System.

The founders also include lawyer Naomi Overend, a former vice-chair with the Human Rights Tribunal, and Niki Carlan, a former member of the Workplace Safety and Insurance Appeals Tribunal.

In addition, Ellis told The Lawyer’s Daily, many current adjudicators do not meet the qualification requirement set out in the Adjudicative Tribunals Accountability, Governance and Appointments Act, which requires a competitive, merit-based appointment process. There has also been a huge loss of institutional memory, he added.

The scenario could spell real pain for thousands of ordinary Ontarians, said Ellis. Because of the pandemic, there “will be a huge wave of claims descending on these tribunals just at the moment they’ve been decimated by government.”

The currently precarious nature of adjudicator appointments threatens to undermine their objectivity and the administration of justice, he added. “Now we have the government deciding on the basis of unknown criteria who will be appointed and who won’t be,” said Ellis. “You have all these adjudicators looking over their shoulders at the end of their term and knowing the government has the power to reappoint them or not.”

Tribunals represent a system of accessible justice for people who would not normally come into contact with the courts or could not afford to hire lawyers, explained Carlan. “Once you take away that sense of fairness,” she added, “you really diminish people at the lower end of the socioeconomic scale. I really feel strongly about that.”

The Landlord and Tenant Board alone deals with more than 50,000 applications a year, according to a Tribunal Watch Ontario estimate.

The system also serves as a check on government power for ordinary citizens, added Carlan. “It’s another way we have of monitoring the work of the bureaucracy and the government in the application of different laws. That’s particularly true in the social assistance and land use areas.”

With the massive backlog of cases expected, Tribunal Watch Ontario is concerned that Tribunals Ontario will shift to written submissions rather than oral hearings. But that would stack the odds even more against the average claimant, said Ellis, who pointed to a U.K. study that found disability claims adjudicated in an oral hearing were 2.5 times more likely to have a positive result for the claimant than those adjudicated on the basis of written submissions.

While Ontario is perhaps the worst example of decline, he said, the tribunal system across Canada is under stress through neglect or deliberate efforts by governments to curtail their power. In British Columbia, for example, the province’s landlord and tenant board has been folded into the Ministry of Housing.

In an e-mail statement, Jenessa Crognali, a spokesperson for Attorney General Doug Downey, said the Ministry is currently reviewing its adjudicative tribunals “to ensure that they are operating effectively, improving accountability and serving people as efficiently as possible.”

“This review is identifying areas for improvement to make services more accessible for tribunal users and is looking at ways to improve the organizational structure and functions of the Ministry’s tribunals,” she added.

The Ministry is continuing to address current and upcoming vacancies and the recruitment of adjudicators is ongoing, said Crognali. “Our government understands the important role that adjudicative tribunals play in ensuring access to justice for Ontarians and is committed to maintaining their role in our justice system.”

The Ford government recently appointed lawyer and former Conservative candidate Sean Weir as interim executive chair of Tribunals Ontario, after the unexplained departure of former executive chair Linda Lamoureux in March.

“I am honoured to serve as the new executive chair at Tribunals Ontario,” Weir said in a news release, “and look forward to working with our adjudicators and staff to develop more modern and user-focused dispute resolution services for the thousands of people who access our tribunals.”

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