Bill would create non-partisan body with investigative, monitoring, reporting, and approval powers
A Liberal Member of Provincial Parliament has introduced a private member’s bill aimed at depoliticizing Ontario’s tribunal system and alleviating backlog and delay.
MPP Ted Hsu’s Bill 179, the Fewer Backlogs and Less Partisan Tribunals Act, would create an independent body, the Adjudicative Tribunals Justice Council. The council would monitor tribunal appointments, operations, and severance policies with approval, reporting, and investigative powers. The council’s chair would be an Officer of the Legislative Assembly who is selected by all official parties, and five of the ten council members would be selected by independent institutions, including the Law Society of Ontario.
The bill also proposes that when the government decides not to re-appoint a tribunal adjudicator for a reason that would not constitute a cause for dismissal, the member has the right to a review by the council. Tribunal adjudicators are appointed by the Lieutenant Governor in Council on the recommendation of the Minister of the Attorney General and Cabinet.
Hsu told Law Times his bill has support from opposition critic Kristyn Wong-Tam of the NDP, as well as from the Green Party. He says the government has not committed either way, but he will meet and discuss the proposal with Attorney General Doug Downey and his staff over the next few weeks.
Bill 179 is a response to the Progressive Conservative government’s politicization of the tribunal system, says Hsu. Following their election in 2018, the province declined to reappoint many experienced adjudicators appointed by the previous government and left their positions vacant. In many of the vacancies the province filled, their appointees lacked sufficient experience, he says.
“There were a whole lot of vacancies,” says Noel Semple, an associate professor at the University of Windsor Faculty of Law who advised on the development of Bill 179. “More importantly, all the most experienced people who provided the leadership and institutional memory had been dismissed.”
Semple says the province followed up by appointing people connected to the Progressive Conservative Party. Bill 179 would be “a promising step forward” because it would “depoliticize and stabilize” tribunals, he says.
The Adjudicative Tribunals Justice Council would consist of non-partisan representatives of major constituencies who appear before the tribunals, including the Ontario Bar Association and the chambers of commerce, says Semple. While the cabinet would still have a role in appointments, it would be more structured and efficient, he says. When the council recommended an appointment, cabinet would have 60 days to confirm the appointment or provide an explanation for their rejection.
The Ministry of the Attorney General did not respond to Law Times’ request for comment.
Bill 179 would ensure that tribunal appointments are “merit-based and competitive,” says Brian Cook, coordinator of Tribunal Watch, a non-partisan, public interest organization that monitors Ontario’s adjudicative tribunal system.
“Just like judicial independence is of paramount importance in our society, there should be similar protections for people appointed to adjudicative tribunals,” says Cook. “Currently, the process is open to political abuse.”
Hsu says the province has responded to the backlogs and delay by filling many positions and the problem is less significant than in 2020-2022.
“But one thing that this legislation does is it makes sure that the next time the government changes, that this doesn't repeat itself.”
Veronica Spada, a spokesperson for Tribunals Ontario, says that the 13 tribunals under its purview are mostly operating in a timely manner, with 83 percent of cases completing “within their target life cycle.” Four tribunals had backlogs as of March 31, 2023, and two of them – the Social Benefits Tribunal and the Licence Appeal Tribunal – eliminated their backlogs in the last fiscal year. Spada notes that the Human Rights Tribunal reduced its active caseload by 13 percent by redesigning its scheduling model, focusing on initial reviews and mediation, and simplifying operational processes and forms.
While Spada says that the active case count for the Landlord and Tenant Board (LTB) is still “higher than ideal,” this is partly related to the 31% increase in applications. In 2023, the LTB had around 84,000 new applications, the second highest number in one year since the LTB’s inception. She adds that in 2023 the LTB held 40 percent more hearings and resolved 45 percent more cases than it did the year before, and the average wait for urgent hearings has reduced from between eight and 10 months to four.
“Without the 31% increase in new applications, the backlog would have been substantially reduced,” says Spada.
Hsu says the bill was largely based on the work of the late Dr. Ron Ellis, a legal scholar and lawyer who practised labour and administrative law.
