A Sounder Footing for Ontario’s Tribunals: The Fewer Backlogs and Less Partisan Tribunals Act

A Bill recently introduced to Ontario’s Legislature can tangibly relieve the crisis of access to justice and politicization in the province’s tribunals, and blaze a path to better appointments for adjudicators and judges across the country. The Fewer Backlogs and Less Partisan Tribunals Act was introduced by Liberal MPP Ted Hsu, and will be debated in the Ontario Legislature on April 18th.

Ontario’s high-volume tribunals — especially the Landlord & Tenant Board, the Human Rights Tribunal of Ontario, and the Automobile Accident Benefits Service — have been afflicted by dire access to justice problems in recent years. The root cause of the notorious dysfunction was the Ford government’s decision to refuse reappointment to almost everyone initially hired before the 2018 change of government. This deprived tribunals of their most experienced leaders and members. Politicization has also undermined tribunals’ internal culture and made it much more difficult to attract high-quality replacements for those who were dismissed. This was compounded by the provincial government’s rash decisions to force all hearings online and adopt a flawed and untested case management system.

Ted Hsu’s Fewer Backlogs and Less Partisan Tribunals Act seeks to place tribunals permanently on a sounder footing, by insulating them from politicization and purges. It would establish an Adjudicative Tribunal Justice Council, the leaders of which would include retired judges, experienced administrative lawyers, and representatives of the public. Most members of the Council would be appointed not by elected officials but rather by nonprofit groups that understand and care about administrative justice.[1]

The Adjudicative Tribunal Justice Council would, in turn, take the lead in ensuring that Ontario’s tribunals are efficient, speedy, and professional. The Bill would mandate the Council to monitor tribunal operations, and to identify problems and solutions. Perhaps most importantly, the Council would also vet recruitment plans for tribunal members and Chairs. Here, the priority would be on finding highly meritorious, diverse, and professional people who can do the challenging but essential work of resolving disputes and adjudicating.

Cabinet officials would still make the final appointments, but they would have to act quickly on the Council’s recommendations and explicitly justify any refusal to follow them. The Bill also guarantees that, once initially appointed, hardworking and high-performing tribunal members would no longer be subject to politically motivated termination. That fate has befallen many in Ontario in the years since 2018.

For Hsu, who represents Kingston and the Islands, hearing from people again and again who have suffered from tribunal delays i motivated him to introduce the Bill. Hsu’s Fewer Backlogs and Less Partisan Tribunals Act draws on a Model Act drafted by Ron Ellis, who was the leading champion of administrative tribunal justice in Canada before his passing on December 3rd, 2023.

A Better Alternative to Cabinet-Dominated Appointments?

Problematic executive-branch appointments of judges have been in the news at both the provincial and federal levels:

• Premier Doug Ford has politicized Ontario Court of Justice appointments, by stacking the Judicial Appointments Advisory Committee with partisan appointees, while also publicly demanding that judges incarcerate more people.
• Federal judicial appointments have proved problematic for a different reason, namely struggles to fill judicial vacancies quickly. The Federal Court has taken the very unusual step of castigating the Federal government for this.

The Fewer Backlogs and Less Partisan Tribunals Act may point the way to an appointment process which is professional rather than political, and which is likely to be speedy and efficient as well. While this Bill applies to tribunals rather than courts, tribunals are an integral part of the justice system. If passed, the FBLPTA will ensure that the entities that hear the most common civil disputes (tribunals) will benefit from an apolitical, efficient process for appointments. Section 14(4) of the Bill requires the executive branch to appoint Members recommended by the Council within 60 days, or give reasons for declining to do so.

This Bill won’t fix Ontario’s tribunals mess right away, but it will create a secure foundation for tribunal justice in the medium term. In the long term, it might be the beginning of a less political, more reliable way to appoint adjudicators in tribunals and courts, across the country.

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[1] These are the Society of Ontario Adjudicators and Regulators, the Association of Community Legal Clinics of Ontario, the Administrative Law Section of the Ontario Bar Association, and the Federation of Ontario Law Associations.