According to a report of the Society of Adjudicators and
Regulators (SOAR),1 Ontario's Labour Relations
Board, Human Rights Tribunal and other administrative tribunals
will soon face significant negative effects on their ability to
perform their mandates.
Why is this occurring, how will it impact our clients and what
can be done about it?
An Addendum to the Government Appointees Directive states that
effective September 1, 2006, subject to certain exceptions, the
term of appointment to a given position on a regulatory or
adjudicative agency is a maximum of 10 years.2
At first blush, this may seem like a positive directive. It may
appear that limiting appointment terms to adjudicative tribunals
would be conducive to renewal and diversity. However, the data
collected by SOAR is less encouraging.
Impact of the Addendum 10 Year Cap
SOAR concluded that, based on the data it reviewed, some
tribunals stand to lose over 50% of their current appointees in a
two-year period.3 The tribunals that will be most
directly and clearly affected are those that require a high degree
of subject matter expertise and who have historically relied on a
cadre of experienced, long-term appointees and where change of
appointee status is not a regular feature of the
Two of the most clearly impacted tribunals are the Ontario
Labour Relations Board (OLRB) and the Human Rights Tribunal of
Ontario (HRTO). SOAR predicts that the OLRB will lose 48% of its
Order in Council appointees and that the change in average years of
experience will drop from 10.3 years to 3.5 years. The HRTO is
predicted to lose 50% of its Order in Council appointees, with a
change in average years in experience from 6.2 to
Other tribunals, hearing matters often outside the scope of the
work performed by our firm, will be similarly
SOAR's report states:
The study shows that the impact of the Directive will vary
considerably among [...] tribunals. For some, there will be a
profound impact to the point that, if fully implemented, the
Directive will mean that the tribunal will be unable to fulfill its
statutory mandate. In some cases, the impact will be delayed beyond
If nothing is done to prevent these impending changes, we
predict that our clients with matters before these tribunals will
note obvious difficulties as a result of a lack of adjudicative
personnel. Chief among them are likely to be the time in which
matters are heard, the time in which decisions are rendered and the
consistency of decisions given.
There is surprisingly little discourse on the impending changes
that Ontario's tribunals, including the HRTO and OLRB, will
face. There are obvious practical restrictions on the ability of
appointees to seek publicity regarding these changes.
There are some practical solutions available if the Public
Appointees Secretariat chooses to implement them. They include:
staggering the implementation of the "10 year cap";
granting "exceptions" to tribunals when in the public
interest; and each tribunal taking steps to manage its appointments
in a way that will permit them to retain expertise.8
It remains to be seen whether any of these changes will be
implemented or if the "10 year cap" will be implemented
as originally planned. Hopefully, increased awareness of this
potential problem – brought to the forefront by SOAR and
others9 – will encourage the government to take
steps to avoid a detrimental impact to Ontario's tribunals.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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