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Message from the Chair

2012: Year of the Appeals Tsunami

“Rule, Britannia!” contains a line “Britannia, rule the waves.” In 2013, the Appeals Tribunal must follow in Britannia’s wake and attempt to deal with one giant wave from 2012 which swamped the Tribunal with appeals. Although the Tribunal adjudicator roster shrank in 2012, the appeals caseload increased by over 40%. The message from the Tribunal’s 2011 Annual Report was obviously correct when it concluded “…the Appeals Tribunal faces a year of significant challenges. Hopefully, it will also be a year in which all interested parties recognize the quality of the adjudication process and decisions and strive to ensure that Ontario has a quality administrative justice system in spite of financial pressures.”

The 2012 financial pressures, combined with the large increase in appeals, as well as staff and Vice-Chair shortages, resulted in longer timelines for processing appeals and scheduling hearings. While the financial pressures generated frustration both inside and outside the Appeals Tribunal, the remaining staff and adjudicators continued their attempts to provide quality service and quality decisions. Those efforts resulted in a successful year for the Tribunal on the judicial review front, despite pressures generated by the tsunami wave of appeals and increased workload.

In an effort to rule the wave of appeals, the Tribunal continued to test and interview prospective adjudicators in an attempt to rebuild the adjudicator roster with competent Vice-Chairs and Members. Applicants must possess a high degree of knowledge of compensation and administrative law, competence in the evaluation of medical evidence and testimony, as well as the application of legal principles, Board policies and Tribunal case law. They must also be able to manage fair hearings and produce well-reasoned decisions which fairly resolve factual, medical and legal issues in a manner that is consistent with Tribunal case law and conforms to the principles of administrative law. Undoubtedly, these efforts will continue throughout 2013, provided the Appeals Tribunal receives the necessary budget resources to rebuild its adjudicator roster to deal with the huge appeal caseload.

It is unusual in any appeals system, whether within the judiciary or administrative justice system, for parties to have the option of an oral hearing at the final level of appeal. The Tribunal has taken the position that parties should have an opportunity to tell their stories and, for that reason, the Appeals Tribunal process allows the introduction of new evidence, testimony and new submissions at the Tribunal appeals level. While the Appeals Tribunal would be reluctant to eliminate this oral hearing option, any ongoing budget/financial pressures may result in elimination of oral hearings and a significant reduction in full panel hearings. Although those changes would reduce the quality of the adjudicative process, limited operating resources may leave the Appeals Tribunal with no other option.

Input from the injured worker and employer communities, the legal community and interested observers may increase appreciation of the reasonable costs associated with the Appeals Tribunal process, particularly when compared to court-based litigious workers’ compensation systems in jurisdictions like California. Unfortunately, elimination of oral hearings and reduced full panel hearings may also generate an increase in judicial review applications, which would obviously add to the legal costs of our operation. While the Tribunal’s small business approach to controlling costs through the use of new tools such as electronic filings, online transfer of appeal records and submissions, as well as a mediation process, may help to reduce some costs, these small additional tools will not eliminate a 40% increase in the appeals caseload.

Hopefully, the Appeals Tribunal’s 2013 Annual Report will describe the year of a safe voyage through the appeal waves. Realistically, to achieve that objective, the Tribunal will require increased financial, technological and personnel tools. The solution is available; however, to secure sufficient resources to implement it, the Tribunal must deliver its message to interested members of the administrative justice community: the basic message, as written by Sir Winston Churchill, is “Put your confidence in us … Give us the tools, and we will finish the job.”

Posted: February 1, 2013