Adjudicative Tribunals: In Need of Friends in High Places

Each year, over 100,000 Ontarians seek justice from Tribunals Ontario. This group of people —the size of a small city— includes tenants, landlords, motor vehicle accident victims seeking insurance benefits, people denied disability benefits, and those who believe that their fundamental human rights have been infringed. This group of 100,000 is significantly larger than the number of plaintiffs who start civil lawsuits in the Superior Court of Justice each year. The numbers are similar in other provinces. For most civil rights, tribunals are Canadians’ first and only opportunity to seek authoritative dispute-resolution and enforcement.

The highest-volume fora within Tribunals Ontario —the Human Rights Tribunal (HRTO), the Landlord & Tenant Board (LTB), and the Automobile Accident Benefits Service (AABS) — have essentially the same function that courts have: to resolve disputes in a just an efficient way. They are meant to encourage fair settlements. When that fails they must find facts, apply the law, and issue enforceable orders.

Unfortunately, Tribunals Ontario is floundering badly. Delays are egregious. You will wait at least 7 or 8 months to be heard if your rights as a tenant or landlord are being flouted by the other side. When the government denies someone disability benefits, and they appeal to the Social Benefits Tribunal, that tribunal reinstates the benefit in the majority of cases. However claimants must get by without their benefits for up to two years because of the delay.

The “Cures” for Delay: Worse than the Disease?

The delay crisis has increasingly generated media attention and public anger. This has spurred the provincial government to action, but many of their responses to delay endanger access to justice. For example, Tribunals Ontario has made in-person hearings almost impossible to obtain. People who are unfamiliar with Zoom (like 77 year old Lorraine Peever, currently struggling to get a remedy for the pervasive bedbugs in her building) end up abandoning their rights or struggling through at a serious disadvantage.

The HRTO has adopted another “cure” for delay in an effort to clear its backlog. It routinely dismisses applications — especially those alleging racial discrimination — with a written Notice of Intent to Dismiss instead of having a hearing on the merits. Roughly 80% of HRTO applicants are self-represented. Responding to this kind of lawyer’s letter is much more difficult than having an opportunity to tell one’s story in a supportive and accessible environment.

Tribunals: Constitutionally Homeless

Our tribunals have many talented and industrious people working in them, but they cannot consistently create access to justice without help from outside. Canada’s constitution empowers three branches of government: legislative, executive, and judicial. It does not mention tribunals. While adjudicative tribunals do basically the same sort of work that courts do, they are not part of the judiciary. In principle they are part of the executive branch, which is dominated by Premiers, Prime Ministers, and Cabinets. Legislatures can also pass statutes that help — or hinder — tribunals in carrying out their functions.

Because tribunals are constitutionally homeless, they need friends in high places. They need the “senior” branches of government to assist and support them, if they are to do their essential access to justice work.

• The executive branch needs to make merit-based, long-term appointments to adjudicative tribunals. Leadership — the choice of Chairs and Vice-Chairs is incredibly important. Great leaders create great culture and attract first-rate adjudicators and staff. Just as important, the executive branch must offer adjudicators long-term and secure appointments driven by merit and diversity, not political connections. Culture is crucial — among other things because it leads to resilient institutional responses to unexpected developments like Covid-19.
• The legislative branch needs to create statutes that enshrine and promote best practices for tribunal justice, while respecting the diversity among the hundreds of specialized tribunals that exist. The next generation of administrative law legislation needs to ensure that tribunals’ ability to deliver access to justice is not subject to the whims of the executive branch. Legislatures must accord tribunals stable and sufficient funding. They must also hold tribunals accountable for delivering better access to better justice for the people who use them.
• The judicial branch has long offered judicial review for individuals’ appeal of tribunal decisions. This is important work, but since the pivotal Ocean Port decision Canadian courts have been very hands-off with any deficiencies in tribunal justice that can be traced to policy decisions of the executive branch. The SCC’s Jordan decision has helped relieve delay in criminal matters. Are courts possibly ready to insist upon a bare modicum of access to justice for tribunal users, even in situations where the executive and legislative branches have turned their backs?

Canada is blessed with wealth, peace, and the rule of law. Building on this foundation, we can create a tribunal system that delivers timely, accessible, and fair resolutions for the pressing civil justice problems that confront Canadians every day. Best-in-class tribunals like the federal Social Security Tribunal prove it’s possible. Tribunals can and do pursue excellence on their own. But they were overlooked, or not anticipated, by the drafters of our constitution. Tribunals are thus in urgent need of friends in the “high places” of our constitutional edifice — the executive, legislative, and judicial branches — in order to consistently deliver access to justice for all who need it.

Please visit Tribunal Watch for up-to-date and neutral information about the state of tribunal justice in Ontario.