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Chair's Message
The Quest for Quality

“Oh, wad some Power the giftie gi’e us
To see oursel’s as others see us!”

While Robbie Burns was not a Tribunal decision-maker, his comment concerning self-awareness does resonate with the Appeals Tribunal. As the Tribunal strives to improve the quality of its process and decisions as part of an ongoing quest to improve the quality of Ontario’s administrative justice system, we are always interested in how parties to appeals, their representatives, the Court system and the public, view the Tribunal. To date, that perception has generally been positive – a perception which can be attributed in large measure to the expertise of long-serving Vice-Chairs and Members as well as the skills of experienced staff. Ontario’s workplace safety and insurance system is fortunate in having a number of long-serving, dedicated individuals who are committed to delivering quality adjudication. Unfortunately, one of the side effects of having a roster of long-service adjudicators is their eventual decision to scale back on their work activity or even retire. In 2009, the Appeals Tribunal lost a number of very skilled and experienced Vice-Chairs.

Rebuilding a quality team, whether in the sports arena or the administrative justice front, is not easy. After many candidates wrote the Tribunal exam, a number of the top candidates passed through the interview stage, and, ultimately, the Tribunal added 15 new adjudicators to its roster.

Once new candidates have reached this threshold, they undergo further training as part of the Appeals Tribunal’s quest for quality adjudication. The training program involves attendance at the Adjudicator Training Course (ATC) presented by the Society of Ontario Adjudicators and Regulators (SOAR) as well as an intensive “in-house” training program which includes seminars, reviewing appeal records as though the candidate were going to hear the appeal, attending at the hearing, attending the panel caucus, and ultimately preparing a draft decision, which is also graded as part of the training program. The training program also includes a mentoring process and drafting decisions on a number of written appeals.

In addition to the initial training program, the Tribunal also conducts periodic training programs on medical and legal issues to ensure that Vice-Chairs and Members are up-to-date on current issues. While the training program is extensive, it is a requisite part of the Tribunal operation because many appeals involve complex medical and legal issues. This should not be surprising since, if these incidents did not occur in the workplace (or in the course of employment), the issues might well be decided in the Superior Court as part of complex personal injury litigation. The legal and medical analysis on medical causation is the same, and parties as well as the Court system have come to expect well-written, well-reasoned decisions from the Appeals Tribunal which resolve those legal and medical issues.

Towards the end of 2009, the Appeals Tribunal’s quest for quality in the Ontario administrative justice system received significant assistance from the Ontario government when it introduced the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. The Tribunal’s 2001 Annual Report had noted: “If the quality of administrative justice is to remain at a high level, ways must be found to ensure that qualified competent individuals remain in the administrative justice system.” That appointments theme was continued in the Tribunal’s 2002 Report which commented: “No skilled CEO devises a business plan which automatically terminates the employment of the most qualified, most competent and most experienced employees after six or nine years. Knowledgeable CEOs attempt to retain the ongoing services of those quality individuals through a variety of employment inducements.” The 2004 Annual Report noted: “Since the quality of the adjudicative product obviously depends upon the quality of the people involved in decision-making, the need for a ‘merit-based’ system for appointing people to the administrative justice system was  apparent.” The focus on quality is crucial because Canada’s administrative justice system is pervasive and touches the lives of Canadians in ways that many of us are unaware of, from the quality of the water we drink and air we breathe to the cost of energy, rents, social benefits, health services, police services and many other public interests.

The government’s new legislation included a provision that adjudicative tribunal members be selected by a competitive, merit-based process. Section 14 of the Act provides in part:

Adjudicative tribunal members to be selected by competitive, merit-based process

14(1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:

  1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.
  2. Aptitude for impartial adjudication.
  3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.

Tribunal-specific qualifications

14(2) If a member of an adjudicative tribunal is required by or under any other Act to possess specific qualifications, a person shall not be appointed to the tribunal unless he or she possesses those qualifications.

Chair to recommend appointments, reappointments

14(4) No person shall be appointed or reappointed to an adjudicative tribunal unless the chair of the tribunal, after being consulted as to his or her assessment of the person’s qualifications under subsections (1) and (2) and, in the case of a reappointment, of the member’s performance of his or her duties on the tribunal, recommends that the person be appointed or reappointed.

This legislated, merit-based appointment process should ensure that, after 2009, all Ontario adjudicative tribunals will improve their performances by hiring and retaining only the most qualified and competent individuals. Hopefully, they will then see themselves as others see them, and it will be in a much more positive light. 

Ian J. Strachan
Tribunal Chair

 

Posted: June 7, 2010

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