Justice Delayed and Denied in Ontario’s Tribunals

Slaw.ca Access to Justice Column, February 16, 2021

Found online at: https://www.slaw.ca/2021/02/16/justice-delayed-and-denied-in-ontarios-tribunals/

Widespread distrust of government helped Donald Trump bring the United States to its knees. Only 17% of Americans trusted the federal government to do the right thing most of the time in 2019, down from over 70% in the 1960s. People who lack any confidence in government tend to be receptive to anti-government populist messages.

The best way to preserve public trust in government is to ensure, as much as possible, that government acts in a trustworthy way. What does this have to do with Ontario’s administrative tribunals?

Statutes such as the Human Rights Code, the Residential Tenancies Act, and the Ontario Disability Support Program Act make promises to Ontarians about things that are crucially important to them: their employment, housing, and income. Neglect and mismanagement of the tribunals which administer these statutes threaten to turn these promises into lies.

The Doug Ford government has allowed some of our largest administrative tribunals to decay to an alarming degree. The effect is to turn the law a liar to hundreds of thousands of Ontarians. This can only contribute to the erosion of trust in the state. Essential work in exposing these problems has been done by Tribunal Watch Ontario, a group led by some of most prominent experts in Ontario administrative law.

The biggest problem is appears to be the government’s refusal to appoint enough decision-makers. Across four critical high-volume tribunals, the number of adjudicators fell from 160 in 2018 to 87 in 2020. Delay in justice is the inevitable result. In the Social Benefits Tribunal, claimants for disability benefits were being told in December 2020 that they would have to wait until 2022 to have their matters heard. In the Human Rights Tribunal, three day hearings now require up to three years to complete.

A second problem is the politicization of the appointments process. Proficient adjudicators with experience and knowledge of the statutes are being replaced by people whose primary qualifications seem to be their connections to the PC Party of Ontario.

Covid-19 is no excuse for the erosion of administrative justice in Ontario. Well-designed, properly resourced tribunals can function very well online. An example is British Columbia’s Civil Resolution Tribunal (CRT). The CRT, whose users are primarily self-represented, has worked almost entirely online since 2014. To date, the CRT has suffered no significant disruption from pandemic control measures.

Unfortunately the same cannot be said of Ontario’s Landlord and Tenant Board. A recent Report from the Advocacy Centre for Tenants Ontario suggests strongly that the measures necessary to provide access to justice and avoid wrongful evictions are simply not being implemented.. Thanks to under-staffing and lack of user-centered design, tenants (especially the many tenants who have limited access to technology) are losing their ability to assert the rights which they are promised by law. The government’s recently-announced temporary moratorium on evictions is not a lasting alternative to maintaining the tribunal in good working order.

Human rights, residential tenancies, and disability benefits are complicated policy areas. The rights of claimants must be balanced against the legitimate interests of employers, landlords, and taxpayers. While the government has the right to rebalance these competing priorities., the legitimate and democratic way to do so would be to amend the statutes and regulations which establish the rights and dispute resolution processes.

Instead, it seems that our government has chosen to surreptitiously undermine the statutes, by starving the tribunals of the resources and personnel necessary for them to function. Placing large policy areas effectively outside the rule of law, by sabotaging the legal systems which govern them, is not only a slapdash approach to law reform. It also accelerates the erosion of trust in the government, the consequences of which are now so obvious south of the border.

Government ministers, if they care about the continuing viability of our democracy, must pay close attention to people’s experience of interfacing and interacting with the government. For example, they must put themselves in the shoes of a person who feels that they have been unjustly denied ODSP benefits, told they have the right to appeal, made to wait two years for their day in court, and then given reason to question the impartiality and competence of the person in charge of making a decision crucial to the claimant’s life. Can that person reasonably be expected to ever trust the government again? Can we – the voters of Ontario – be expected to trust a government that has allowed this to happen?