Ford government's changes undermine Ontario human rights tribunal's independence: experts

Staffing shortages and a flawed appointments process at the Human Rights Tribunal of Ontario are saddling some of the province's most vulnerable people with mounting delays as they seek relief for alleged discrimination or harassment, legal experts and advocates warn.

A high number of vacancies combined with increased political intervention in selecting and retaining tribunal staff are undermining the human rights system as it faces a growing backlog of cases due to the COVID-19 pandemic, the experts say.

The tribunal was slow to adopt videoconferencing for hearings after health measures imposed in March prevented in-person proceedings, said Roberto Henriquez, a human rights lawyer in Hamilton.

It cancelled many scheduled hearings before allowing some cases to go on in writing or through phone or video calls, compounding existing delays, he said.

"The only way out of that you would see is to have an influx of adjudicators that can possibly deal with the backlog that already existed on top of the backlog that's still been building," he said.

In early 2018, the tribunal had more than 60 full- and part-time adjudicators, Henriquez said.

Several members' terms expiring by 2021

Thirty-two members are currently listed on the Ontario government's record of appointments to the tribunal, with one marked as having resigned and another as holding two positions.

Seven are serving terms set to expire later this year or in early 2021. Four job openings are posted, three of them for part-time positions.

At least two advocacy groups say changes made by the governing Progressive Conservatives after they took office in mid-2018 have made it harder to attract and retain qualified adjudicators, and undermined the independence and efficiency of the tribunal. 

Under previous governments, adjudicators were initially appointed to a two-year term, which would then be renewed for another three and five years if their performance was good, the groups say.

The Ford government has refused to reappoint "virtually all" those installed before it took office and made it clear to those it has selected they can't count on being reappointed even if their performance meets the tribunal's standards, said Ron Ellis, a retired administrative lawyer in Toronto.

This "arbitrary" exercise of power "negatively affects the tribunal's competence and efficiency by making the adjudicator positions into positions of precarious employment unattractive to optimally qualified, career-minded candidates," said  Ellis, who co-founded Tribunal Watch Ontario, a group of legal experts and academics sounding the alarm over the changes.

"By eliminating any sense of security of tenure for the tribunal's adjudicators, it destroys both the fact and the  appearance of tribunal independence, thus putting the tribunal in breach of the law's requirement that it and its adjudicators be, and be seen to be, independent and impartial," he said in an email.

Concerns over appointments without competition

The group is also raising concerns over two recent appointments it says were given without competition to people lacking apparent expertise in the field.

Sean Weir, a former Oakville, Ont., city councillor who unsuccessfully ran for the Conservatives in the last federal
election, was named to a six-month term as interim chief of Tribunals Ontario, the body that includes the Human Rights  Tribunal of Ontario.

Another lawyer, Tamara Kronis, was recently appointed associate chair of the HRTO. The Law Society of Ontario shows her as not currently practising law, while her LinkedIn profile lists her as previously serving on the board of directors for Toronto Hydro and founding a jewelry store. 

The group says that while both have worked as corporate lawyers, there is nothing to indicate they have experience with the tribunal system.

"The tribunal-wide lack of professional adjudicative experience will impact the efficiency of the tribunal generally and particularly cripple its ability to respond appropriately to the unique challenges presented by the fallout from the pandemic," Ellis said.

Another group, Democracy Watch, launched a legal challenge last month over the changes to the appointments process, asking the Ontario Superior Court to rule that the new system violates legislation requiring independent tribunals and  merit-based appointments.

It is also asking the court to cancel any appointments made under the new system "because they are illegal and unconstitutional."

'Supposed to give you a meaningful remedy'

"[Tribunals Ontario] and the government are working on addressing shortages of adjudicative resources at constituent tribunals, including the HRTO," Marcus Mattinson, spokesman for the Attorney General, said in a statement. 

The government declined to comment on the legal action, saying it will respond through the judicial process. But it defended the appointments of Weir and Kronis, describing both as having experience in the legal profession.

Weir's appointment was made on an urgent basis and will give the necessary time to complete a competition for the position, Mattinson said.

"Our government is proud that Mr. Weir agreed to serve on Tribunals Ontario. We value the knowledge, experience and
perspective he brings to this role," he said. Kronis was appointed in accordance with the legislation that governs tribunal  accountability and governance, he said.

The surging delays at the tribunal represent a major hurdle for access to justice, said Henriguez, the Hamilton lawyer, noting some people may be discouraged to make an application or feel pressured to reach a settlement at a time when they are already experiencing hardship. 

"This tribunal is supposed to give you a meaningful remedy for injury to dignity, injured or hurt feelings...So, it becomes  even more complicated that the remedy itself is potentially adding to those feelings," he said.

Jill Edmondson, a professor at George Brown College in Toronto, filed an application against her employer with the  tribunal in 2018 alleging discrimination over disability after she was diagnosed with cancer.

A preliminary hearing took place in December but couldn't be completed, and is set to resume on Friday, with Edmondson scheduled to undergo another round of chemotherapy on Saturday, she said.

Meanwhile, it's still unclear whether the case will proceed to a hearing, and when that could be if it does, Edmondson said.

She expressed concern that the adjudicator overseeing her case is serving a term that expires in early 2021, which could cause further delays if a reappointment isn't granted.

"I had no idea when I filed the claim that HRTO was so incredibly backlogged and slow. Had I known then what I know now I would have probably taken a different course of action," she said.

"Just worrying about my health is its own sort of full-time mental occupation but then having to deal with this..." has taken a toll, she said.