Politicization of senior appointments alarms Tribunal Watch Ontario | Gary Yee and Raj Anand
Friday, November 20, 2020 @ 12:57 PM | By Gary Yee and Raj Anand
The proposed executive chair of Tribunals Ontario, Sean Weir, has been called to appear before the Ontario Legislature’s Standing Committee on Government Agencies. We look forward to hearing that he has agreed to appear and be questioned by the committee prior to the Nov. 30 deadline for reviewing and confirming his recent order-in-council appointment.
Weir was initially appointed in June 2020 to a term of six months, which was short enough to not legally require a competitive or merit-based process. He now appears to be the successful candidate for the more permanent appointment, after a posting on the Public Appointments Secretariat website of the Ontario government that lasted only 14 days in September, for a position that was incorrectly named as the executive chair of the Licence Appeal Tribunal, instead of Tribunals Ontario.
Since June 2020, the current government has appointed four full-time associate chairs to Tribunals Ontario. As is the case with Weir, three of these four have strong connections with the governing party. Of the executive chair and four associate chairs, only one has appeared for review before the Standing Committee on Government Agencies (associate chair Sara Mintz on Oct. 6, 2020). Tribunal Watch Ontario has issued statements regarding several of these appointments.
With a record like this, and many more adjudicator vacancies being filled this year, the politicization of Ontario’s tribunals is a serious and growing concern. Strong steps must be taken to protect public confidence in the integrity and independence of adjudicative tribunals.
Tribunals exercise judicial functions — the appointed adjudicators assess the evidence and apply the law; they do not implement government policy. The government and its agencies regularly appear before many Ontario tribunals. For example, when a person is pursuing an appeal of their disability benefits or a human rights claim against the government, that person must be absolutely confident that the adjudicator on the case is completely free of any actual or perceived pressure to rule against the government.
While being active in partisan politics should not in itself disqualify an appointee, serious concerns are raised when there is a pattern of appointees to senior positions who have obvious party connections. Appointments and reappointments of judicial decision makers need to be free from political influence, both in reality and in appearance. Unlike operating or advisory boards or agencies, the credibility and legitimacy of tribunals depend on public confidence in the adjudicative independence of the members.
Tribunals provide everyday justice for many people, more than the courts do. Currently, this government appears to be trying to stack Tribunals Ontario with appointees who have stronger party qualifications than adjudicative qualifications. We cannot allow appointments to our tribunals or courts to be politicized, as some of the judicial appointments in the United States have been.
Section 14 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 requires “a competitive, merit-based” and public recruitment process that applies mandatory legislated criteria. The executive chair or chair of a tribunal has a critical role in the administration of justice. The Act provides that no person shall be appointed or reappointed to an adjudicative tribunal unless the chair of the tribunal recommends that person, based on their assessment of the person’s qualifications (for appointment) or performance (for reappointment).
Establishing a credible process for appointments and reappointments is critical to creating the foundation for a stable, expert and independent tribunal. Huge damage is caused if tribunal members appear to be given appointments or reappointments based on political connections or other unpredictable or questionable factors. These decisions should be based on merit and the proper job criteria. Otherwise, there will be a chilling effect on adjudicative independence, and the unpredictability will also lead to many qualified people being discouraged from applying or continuing. The tribunal will suffer with turnover, turmoil and loss of respect.
In addition to its monitoring and advocacy efforts, Tribunal Watch Ontario is working with its Advisory Council and the Policy & Reform Committee to establish a proposal for a tribunal system that has the structure, policies and protections that are required of a justice system. While that is a longer-term goal, we cannot wait any longer for an independent and non-partisan review of the appointments and reappointments processes. At a minimum, under the current system, the Ontario Legislature’s Standing Committee on Government Agencies must be given more powers to effectively review proposed appointees in its public hearings. The government must be held accountable to ensure that appointments and reappointments are, and appear to be, free from political influence.
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Gary Yee has served as full-time chair of three Ontario tribunals, and worked in legal clinics, Ombudsman Ontario, and the Immigration and Refugee Board. He has received the Society of Ontario Adjudicators and Regulators Medal and the Law Society Medal. Raj Anand is a former chief commissioner of the Ontario Human Rights Commission, member of the Human Rights and Police Services Boards of Inquiry and vice-chair of the Law Society Tribunal Hearing Division. He received the Law Society Medal and was a Law Society bencher for 12 years.
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