Delay in Adjudicator Appointments: Crisis, What Crisis?

In 2016, there was a small flurry of concern about the delays in appointments of judges by the federal government. In early December, the Ontario Auditor General highlighted delays in the appointments of Order in Council appointees (adjudicative, regulatory and advisory positions) of up to 16 months. This did not receive much, if any, media attention. The impacts on the administration of justice and on access to justice as a result of delays in appointing of adjudicators can be significant.

There are 3,647 appointees in Ontario (as of July 2016). Of these, there are 47 adjudicative and regulatory entities that have a total of 1,248 appointees. The Ontario Auditor General reviewed a sample of appointments over a five year period (2012-2016). She found that it took an average of 16 months to fill vacant positions, despite the government being aware of upcoming vacancies months in advance. In over 420 cases, the delay caused 33 agencies to drop below their legislated minimum number of members.

In Ontario, the adjudicative and regulatory entities generally conduct the recruitment process for adjudicators and regulators. After a merit-based process, a list of potential appointees is then provided to the responsible Minister for approval. The chosen candidates are then approved by Cabinet. The delays in the appointment process appear to be mostly occurring at the political level. The Auditor General surveyed CEOs of agencies and chairs of adjudicative and regulatory bodies. Their frustration and concern about the delays is well-captured by the following quotes:

“Incredibly slow and tardy. … Repeat emails/calls to minister’s office ignored routinely.”

“The amount of time it takes is atrocious. We identified an ideal candidate, who was interested in being appointed, and it took nearly two years for the appointment to finally come through. It was miraculous that he was still interested by then, because people do move on with their lives.”

“We have had candidates approved through a rigorous recruitment process wait more than three years for approval. This is beyond tardy – it is completely inept and an embarrassment.”

The delays in reappointments were also significant. In over 300 cases, on average, reappointments occurred more than two months after the appointee’s term had ended.

The Auditor General also discovered that there are significant challenges in managing the term limits for adjudicators in Ontario. As I have written about previously, Ontario is implementing term limits of 10 years for adjudicators. In 208 agencies, 50% or more of the appointees have terms ending in the same year. As she notes, “this adds undue stress on the process of finding the right replacement candidates, or reappointing candidates, in a timely manner”. She also notes that even if new appointees are promptly appointed, not leaving a vacancy, “their inexperience and lack of knowledge coming in causes challenges to the effective functioning of boards.” The Auditor General noted that at the federal level, some legislation requires staggered terms and that the federal Privy Council Office encourages Ministers to use staggered terms as a best practice to ensure continued effectiveness of the organization.

At the federal level, the Canada Industrial Relations Board has raised concerns with the Minister of Labour on the delays in appointments of members. The Chair of the CIRB, Ginette Brazeau, is reported as saying that the delays in appointments are having an “increasing negative impact” the board’s work.

The CIRB appointment process for the appointment of members involves the Canadian Labour Congress, representing workers, and the group representing federally-regulated employers (FETCO) vetting and submitting names to the government for appointment. This ensures that there are equal numbers of labour and employer members that are suitable to the parties. The president of the CLC, Hassan Yussuff, said that these appointments “are very unique and nuanced because of the interests the board represents at the end of the day”. Derrick Hynes, executive director of FETCO, noted that the CIRB could lose out on qualified nominees if the appointments process takes as long as it has this year:

“People who are nominated for these roles are experienced, highly qualified and sought-after individuals. When we put forward a nominee for appointment, obviously the more efficient the appointment-making process can be, the better and you reduce the risk of your nominee finding another opportunity elsewhere.”

The Ontario government response to the Auditor General’s concern about the appointment and reappointment process was to commit to developing best practice documents and other education documents to help Ministry staff involved in the appointment process “understand the benefits and importance of timely appointments and reappointments”.

Anyone who cares about the administrative justice system doesn’t need a ‘best practices guide’ to know that timely appointments are important if we expect tribunals and regulators to deliver administrative justice. The consequences of a failure to appoint judges can have dire consequences, such as the dismissal of criminal cases for delay. The consequences of delays in appointments or reappointments of adjudicators can also result in delays in receiving benefits, delays in the resolution of labour relations disputes, and delays in receiving justice.

Backlogs in tribunal caseloads always raise concerns within tribunals and with the public. The delay in appointments and reappointments is not the only contributing factor to backlogs, but it is a significant one. The solution is straightforward – appoint and reappoint in a timely manner. In the words of Oscar of Corner Gas, “it’s not rocket surgery”.