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Message of the Chair
Scaling the Appeals Mountain

As more appeals continue to drop on the Tribunal, the appeals hillside which once contained 4,000 active appeals has been raised to a mountain height of 8,000 active appeals.

While the Appeals Tribunal continues to search for a team of Sir Edmund Hillarys who can help scale the appeals mountain and reduce it once again to a hillside of 4,000 active appeals, attempts to scale the mountain in 2013 became a herculean task because of the limited Tribunal resources.

Although the Appeals Tribunal is gradually expanding its roster of competent Vice-Chairs and Members, it is a gradual process and one which is made more difficult by the decisions of some adjudicators to retire and by others to seek judicial appointments or positions at other commissions, boards and tribunals. While the Tribunal has been fortunate to retain a number of its most experienced and most competent Vice-Chairs and Members, a number of potential competent adjudicators are now concerned about recent interpretations of the Provincial Appointments Directive and the 10-year limit on appointments. Unless prospective adjudicators are within 10 years of their retirement dates, they are reluctant to leave any current positions in order to assume a Vice-Chair or Member position which may not last beyond the ten-year period. The Tribunal and the legal community made submissions along with the Society of Ontario Adjudicators and Regulators (SOAR) concerning the Appointments Directive and the need to retain the most competent people. As a result of those submissions, the government amended the Appointments Directive to add an “exceptional circumstances” provision which allowed recommendations for reappointments to extend beyond the ten-year limit. Hopefully, that interpretation will continue and allow Ontario’s administrative justice system to retain the services of its most competent adjudicators.

While the appointment of new competent Vice-Chairs and Members should allow the Appeals Tribunal to eventually scale the appeals mountain, financial pressures and concerns of applicants regarding a 10-year limit have slowed additions to the Tribunal adjudicative team and resulted in delays in appeal processing and the hearing process. If the Appointments Directive is interpreted in a manner which provides reassurance to the injured worker, employer and legal communities, as well as all prospective Sir Edmund Hillarys, it should shorten the timelines and allow the Tribunal to scale its way to the peak of the Appeals Mount Everest.

This “quest for quality” at the Appeals Tribunal resurrects the message in the Tribunal’s 2009 Annual Report, which started out with a quote from Robbie Burns:

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

That message went on to state: “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.”

While the most competent adjudicators and staff members will continue to play key roles in scaling the appeals mountain, those dedicated individuals will require more teammates who can handle large caseloads and deliver quality final decisions at the Tribunal level. To assist the competent team members, the Appeals Tribunal must focus on a “whole person adjudication” approach and combine all appeals from individuals who have multiple claims at the Board and file multiple appeals at the Tribunal, so Vice-Chairs and Panels may deal with all issues and appeals for the same appellant in a single hearing and not use scarce resources to schedule multiple hearings for the same appellant. Knowledgeable representatives should also be aware that filing multiple reconsideration requests also places a significant drain on Tribunal resources and adversely affects those appellants who are waiting for their first hearing at the Appeals Tribunal. While the key factor in scaling the appeals mountain is the addition of competent Vice-Chairs and Members, significant assistance can come from competent members of the injured worker, employer and legal communities, who give quality advice to clients about the appeals process and the need to avoid multiple appeals and reconsideration applications, which place a drain on the resources of the entire workplace safety and insurance system in Ontario.

As Robbie Burns would advise them, they all need “to see oursel’s as others see us.”

Posted: April 9, 2014

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