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Democracy Watch files lawsuit against Ontario government’s new illegal, unconstitutional administrative tribunal appointment system

Case asks court to rule the new system violates Ontario law and is unconstitutional as it gives Cabinet ministers much more control of tribunal members, weakening their independence and politicizing law enforcement

Thursday, July 16, 2020

OTTAWA – Today, Democracy Watch released the application it has filed in Ontario Superior Court challenging the Ford government’s changes last November to the appointments system for 19 tribunals (plus 13 other tribunals) in Ontario that issue quasi-judicial rulings in more than 150,000 cases each year, including the Human Rights Tribunal, Landlord and Tenant Board (the busiest with almost 80,000 cases annually), Child and Family Services Review Board, Social Benefits Tribunal, Environmental Review Tribunal and the Ontario Civilian Police Commission (See the 19 tribunals listed under sections 1.1 and 2 in this regulation and more information about seven of the tribunals here). Jameel Madhany and Lindsay Woods of Lerners LLP are representing Democracy Watch in the case.

As a result of the changes (s. 3.2.2) and how the Ford government has implemented them, tribunal members at 32 tribunals in total (See them listed in Schedule 1 in this regulation) are being appointed by the Ford Cabinet for short, inconsistent terms of two years or less, with re-appointments also controlled by the Cabinet. This means tribunal members have little job security and are essentially serving at the pleasure of the Cabinet, which violates legal requirements of independence and impartiality, and politicizes and weakens the enforcement of many key laws across the province.

The government’s changes have included terminating a large proportion of experienced tribunal members and, as a result, almost half of tribunal member positions are vacant in some tribunals. There has also been an increase in complaints about tribunals filed with the Ontario Ombudsman (who is investigating delays at the Landlord and Tenant Board), in part because people with less expertise but connections to the Ford government have been appointed to the tribunals and related enforcement agencies, including a Toronto police officer appointed to the Human Rights Commission. Another cause of these problems is that experienced people who have served on one tribunal have been rejected when they apply to be a member of another tribunal.

Democracy Watch’s application asks the court to rule that the new tribunal appointments and re-appointments system the Ford government has set up violates the purpose and section 14 of the Adjudicative Tribunals Accountability, Governance and Appointments Act that require independent tribunals and a merit-based and competitive appointment process for new tribunal members, and also violates the constitutional principles of administrative tribunal independence and the rule of law.

Democracy Watch’s application also asks the court to cancel appointments made under the Ford government’s new system because they are illegal and unconstitutional.

“The Ford government’s changes put 32 tribunals that handle more than 150,000 important human rights, citizen, community and environmental protection cases each year much more under the control of Cabinet ministers, which politicizes and weakens the enforcement of several key laws across Ontario,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully the courts will reject Ford’s changes and rule that they violate Ontario’s tribunal law and are unconstitutional, and that will lead to strengthening the independence and expertise of these many important law enforcement tribunals that protect Ontarians from being abused and harmed in many ways.”

Ontario’s tribunal appointments and re-appointment system wasn’t ideal before the Ford government changed it, as it also lacked full independence from the Cabinet, but overall it was much more merit-based and independent than the new system. The old system was:

  1. a competitive application process controlled by the tribunals (it is now largely controlled by Cabinet);
  2. with an initial fixed term of two years (now the initial term is “up to two years”);
  3. and the recommendations of the Chair of each tribunal for re-appointment of a tribunal member were usually accepted (under Ford they have usually been rejected);
  4. with re-appointment possible for a second fixed term of three years (now “up to three years”), and then a final fixed term of five years (now “up to five years” – for 10 years total(and renewal beyond 10 years was possible, but no longer is).

As a result, the old system gave tribunal members more long-term job security, which increased their independence and expertise, and decreased vacancies. Changing back to this system, along with making appointments and re-appointments decisions even more independent, would strengthen the fairness of law enforcement across Ontario.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Bad Government Appointments Campaign and Stop Unfair Law Enforcement Campaign