The crisis continues in some of Ontario's most important
adjudicative tribunals. Tribunals Ontario posted its 2021/22 Annual
Report on its website in September 2022, documenting the state of its
14 tribunals as of March 31, 2022, the end of its fiscal year. This
latest Annual Report
demonstrates that several key Ontario adjudicative tribunals are
failing to deliver timely and accessible justice in accordance with
their statutory mandates.
The Annual Report indicates that the four largest tribunals
within Tribunals Ontario have a collective backlog of over 67,000
cases. This has resulted in unprecedented delays in processing and
resolving cases in a timely and accessible way. Increasingly, the
people who must rely on adjudicative
tribunals to resolve legal disputes are discovering that justice
delayed is indeed justice denied.
The backlogs at four key tribunals:
Landlord and Tenant Board — 32,800
Human Rights Tribunal* — 8,979
Auto Accident Benefits - LAT — 16,204
Social Benefits Tribunal — 9,753
TOTAL 67,736
*This number was omitted from the Annual Report. A Freedom of Information request reported this number as of December 31, 2021
The massive delays and failure to provide accessible dispute
resolution have real and often life changing consequences. For example:
Small landlords are losing their life savings because of an
inability to obtain an eviction order from the Landlord and Tenant
Board.
Tenants are unable to have their disputes resolved in a timely and
accessible way, including disputes resulting in unsafe living
conditions or homelessness, or involving unreasonable conduct by
landlords.
People who have experienced discrimination in employment, services,
or housing, as well as people such as employers and business owners
seeking to respond to these allegations, are unable to obtain a
resolution at the Human Rights Tribunal of Ontario.
People who are disabled and unable to work are unable to obtain
their benefits under the Ontario Disability Support Program, and must
instead subsist on general welfare because of backlogs at the Social
Benefits Tribunal
People who have been severely injured in a motor vehicle accident
and have been unfairly denied insurance benefits cannot obtain
resolution because of backlogs at the Automobile Accident Benefits
Service of the Licence Appeal Tribunal.
While the Annual Report indicates that Tribunals Ontario is aware of
its backlog problem, the solutions identified are not sufficient to
deal with the backlogs in any meaningful way.
In addition to the impact on the individuals whose case are delayed,
the backlogs, delays and lack of accessible justice are demoralizing
for the many staff and adjudicators within the system who are doing
their best in very difficult circumstances.
Tribunal Watch Ontario calls on all parties to commit to ensuring
timely and meaningful access to justice at Tribunals Ontario, including
its four largest tribunals — the Landlord and Tenant Board, the Human
Rights Tribunal of Ontario, the Social Benefits Tribunal and the
Licence Appeal Tribunal
(which hears automobile accident benefit claims).
As Tribunal Watch Ontario has reported in the past, the Ontario
Government has, since first elected in 2018, failed to re-appoint or
retain most of the experienced adjudicators who had been first
appointed to provincial tribunals by the previous Liberal government.
The Government then failed for
several years to appoint a sufficient number of new adjudicators to
fill the vacancies. This has resulted in unprecedented delays for
members of the public who need the services provided by these
tribunals. Although in the past two years, the Government has moved to
fill these positions, the high
turnover of adjudicators has meant a loss of expertise and experience
that continues to affect the quality and timeliness of justice that is
delivered to the public. The crisis persists.
Tribunal Watch Ontario has issued a series of Statements of Concern
highlighting the deteriorating quality of justice now being delivered
at Tribunals Ontario. In 2021, Tribunal Watch Ontario conducted a
survey of tribunal users. The results, although limited, were
overwhelmingly negative in
terms of confidence in the timeliness and fairness of tribunal
processes, as well as in the expertise and independence of tribunal
adjudicators.
One issue raised repeatedly by tribunal users is the decision by
Tribunals Ontario to remove in-person hearings as an option in all but
exceptional cases. After introducing electronic hearings as a pandemic
measure, Tribunals Ontario announced, in November 2020, that electronic
hearings would be
the standard hearing format going forward for all its tribunals.
Tribunals Ontario has created an onerous process for requesting an
in-person hearing that can be contrasted with that of the federal
Social Security Tribunal (SST) which serves a similar population. The
SST allows appellants to select
an in-person hearing as an option on the initial Notice of Appeal form.[1]
Although electronic hearings are an important option to offer
parties, both the Ontario Bar Association (OBA) and the Canadian Bar
Association [2] have separately cautioned about the potential negative impact of an almost-mandatory digital format for people
living in poverty or facing other barriers to electronic participation. [3]
Legal clinics are reporting that, since March 2020, they are only aware
of a single in-person hearing at the Landlord and Tenant Board,
suggesting that there is little flexibility in
Tribunals Ontario "digital first" policy. Thousands of electronic
hearings take place monthly at the LTB.
Here are some indicators of the growing crisis at the Landlord and
Tenant Board, the Human Rights Tribunal of Ontario, the Social Benefits
Tribunal, and the Licence Appeal Tribunal, four tribunals that together
serve the needs of hundreds of thousands of Ontarians:
At the LANDLORD AND TENANT BOARD (LTB or the Board), the backlog of
applications has grown from 12,944 as of March 31, 2018 to 32,800 on
March 31, 2022. This backlog has developed even though the overall
number of new applications filed has fallen by almost 20,000 in
2021/22, as compared to the
10-year period before the pandemic. Recently the Board began informing
users through an automated message that the delay is now 7 months for a
landlord application to be heard and 8 months for a tenant application
to be heard. The actual delays in many cases are much longer.
In the face of enormous delays and the permanent closing of regional
offices across the province at the start of the pandemic, landlords and
tenants have increasingly turned away from using the LTB to resolve
their disputes.[4]
Before the Board permanently
closed all its regional office, counter staff were available across
Ontario to assist landlords and tenants in completing and filing forms
properly, reducing delays and unnecessary dismissals when improperly
completed forms are thrown out by an adjudicator months later.
Legal clinics report an uptick in the use of "self-help" methods by
frustrated landlords and tenants, including illegally changing the
locks or refusing to pay rent. These are exactly the kinds of
situations the legislation was enacted to prevent.
Significantly, people appearing before the LTB now report a myriad
of problems as a result of Tribunal Ontario's decision to remove access
to in-person hearings for almost all parties.[5] Landlord representatives cite videoconference hearings as a "major
hurdle" to getting a resolution at the LTB.[6]
Tenant representatives report that many tenants in low-income
households or in rural or remote communities lack the means to connect
to LTB video conference hearings and must participate by telephone, at
a
disadvantage, while the landlord and adjudicator participate by video
conference.[7]
This digital divide is compounded for those who have language or
literacy barriers, mental health challenges, or who simply lack
computer and videoconferencing skills.[8]
As noted above, legal clinics are reporting that, to date, the LTB
appears to have only held one in-person hearing since March 2020.
Instead, the Board has introduced a free phone program to give parties
without smart phones a means to connect to their hearings, and has
introduced computer
terminals in five cities; parties in Hamilton, Toronto, London, Ottawa
and Sudbury who do not have their own computers or internet access can
use a computer terminal on request. There is no information publicly
available on the uptake by parties.
At the same time as moving to telephone and video hearings, the
Board ended its long-standing practice of scheduling hearings on a
regional basis. This has further interfered with the ability of tenants
to access legal assistance through Legal Aid Ontario's Tenant Duty
Counsel Program and
financial assistance through municipal homelessness prevention programs
(such as rent banks). Chaos has regularly occurred during electronic
LTB hearings, particularly as tenants participating by phone try to
figure out which voice is their landlord, who is the adjudicator, who
is the mediator. The
resulting delays mean that landlords are unable to evict tenants who
are breaching their responsibilities under the law and tenants are
unable to obtain repair orders or relief from rent hikes.
The Ombudsman commenced an investigation into delays in January 2020
when delays were 7 weeks for landlord applications and 8 weeks for
tenant applications; currently the delays are 7 months for a landlord
application and 8 months for a tenant application. Unfortunately, the
investigation itself
has been anything but timely, and the Ombudsman has not yet made any
recommendations to help resolve the present crisis.
The LTB is Ontario's busiest tribunal, typically receiving over
80,000 applications annually. The November 2022 announcement of an
additional $1.4 million for the LTB for operational staff will
hopefully assist the LTB in addressing ongoing complaints about its
failure to manage its own process,
including unanswered inquiries from parties, evidence not delivered to
adjudicators by the day of their hearing, and delays in sending
decisions to parties. Unfortunately, the new funds will do little to
address the inefficiencies associated with the shift to an almost
exclusively digital hearing
format and the adoption of a new, non-regional scheduling model that
has been criticized as not responsive to the realities on the ground,
such as the availability of Tenant Duty Counsel or access to support
from local rent banks. By doubling down on these two structural shifts
at the LTB, Tribunals
Ontario is compounding the delays that started with the failure to
retain experienced adjudicators.
At the HUMAN RIGHTS TRIBUNAL OF ONTARIO (HRTO or the Tribunal), the
number of final decisions after a full hearing has dropped from an
average of over 100 per year to only 16 decisions in 2021/22. Even
these 16 decisions are not, for the most part, written by the current
panel of adjudicators.
The overwhelming majority are overdue decisions: 12 of the 16 decisions
are the final result of applications that were filed between 2016 and
2018.[9] As for applications that were filed more recently, the 2021/22 Annual Report concedes that the HRTO failed in
the past year to meet its own targeted timeframe for scheduling hearings in fully 100% of its applications.
Lawyers report that applications are often stalled at the HRTO for
many months at one or more stages, causing hardship and unfairness for
both applicants and respondents.
Notably, as with the Landlord and Tenant Board, members of the
public now seem to be turning away from pursuing a remedy at the HRTO.
The rate of abandonment of applications has doubled since 2017/18, with
applicants now abandoning applications that have sat around at the
Tribunal for months
without being served on the opposing side. As well, the number of new
applications fell in 2021/22 to 3,751, as compared to an average of
4,271 over the previous five years.
Increasingly in the past two years, the HRTO has dismissed hundreds
of applications without an oral hearing, based on a summary review of
the adequacy of the written application and any subsequent written
submissions. These dismissals are Tribunal-initiated, triggered by a
Notice of Intent to
Dismiss (NOID). The HRTO issued almost four times as many NOIDs in 2021
as compared to the 5-year average pre-2018.[10]
This pattern of Tribunal-initiated dismissals has raised new
barriers to justice, particularly for the over 80% of applicants who
are not represented by counsel when they file their application. The
human rights process was designed to allow unrepresented applicants to
tell their story in their
own words on the application form, without the need to address all the
legal components of a discrimination case. This flexible process has
also benefited respondents by reducing the legal red tape. Now, by
requiring applicants to explain in writing at the outset how they will
be able to prove
discrimination, the HRTO is turning a user-friendly process into
something that rivals the courts in terms of inaccessibility.
Moreover, the HRTO appears to be using this front-end dismissal
initiative to reduce its backlog and avoid the requirement in the Human
Rights Code[11]
to give all parties the opportunity to make oral submissions, before
dismissal, in every case within its
jurisdiction. Based on its review of the application form and any
subsequent written submissions, the HRTO has dismissed hundreds of
cases in the past year on the basis that it lacks jurisdiction because,
in its preliminary assessment, the applicant will not be able to prove
a link between the
negative treatment complained of and a prohibited ground of
discrimination.
Notably, almost none of the newly appointed adjudicators who are
issuing these dismissal decisions, have ever conducted a full
evidentiary human rights hearing or written a complex discrimination
decision requiring them to engage with the fundamental principles of
human rights law.
The consensus among experienced counsel, retained to respond to a
Tribunal-initiated dismissal notice, is that many if not most of the
applications being challenged by the Tribunal are arguable claims, even
if some are not clearly drafted on the application form by their
previously-unrepresented
client. These are applications that would previously have gone to a
summary oral hearing or, in many instances, to mediation and, if not
settled, to a full hearing.
The HRTO included a new category of 1,126 final decisions in its
2021/22 Annual Report, called "Final Decisions other than on Merits".
This category appears to capture all the dismissals based on this new
and restrictive interpretation of its own jurisdiction by the HRTO. A
review of the
dismissal decisions reveals a paucity of reasons and the repeated use
of boiler plate language that is inconsistent with the duty to give
adequate reasons as a matter of procedural fairness.[12] Given that less than 20% of applicants are represented when they
prepare their applications,[13]
and that many applicants abandon their applications after receiving a
Tribunal-initiated Notice of Intent to Dismiss, there is a very real
risk that many of these dismissed and abandoned applications had
arguable merit.
Notwithstanding the unprecedented increase in Tribunal-initiated
dismissals, the backlog of applications at the HRTO has grown by 90%
from 4,696 unresolved (active) cases at end of the 2016/17 fiscal year
(the last year when this was information was published in the Annual
Report) to 8,979
unresolved (active) cases as of December 31, 2021.[14]
The current backlogs and delays are causing real hardship for
individuals who have experienced discrimination, whether in the
workplace, in seeking housing, or in an educational or other service
sector. An individual who has lost their employment due to
discrimination is now much more likely to
need to retain a lawyer to avoid a Tribunal-initiated dismissal, and if
their application does move forward, they can only look forward to
wading through a multi-year process. The delays are also causing
hardship for employers, landlords, retailers and service providers,
across the province, who
have a discrimination application hanging over them and no certainty as
to when the claim will be resolved.
Asking Ontarians to wait years for the resolution of a
discrimination application is unacceptable. Experienced human rights
counsel report that they must now consider whether the HRTO remains a
viable option for clients who have experienced discrimination or
harassment. Even more importantly, in
dismissing hundreds of potentially arguable cases after only a cursory
review of the self-drafted application form and any initial written
submissions, the HRTO is conducting itself in a manner that is
inconsistent with its statutory duty to hear oral submissions from the
parties. The HRTO has
abandoned the case resolution processes that successfully governed
human rights enforcement for more than a decade. In reducing access to
justice, it has created an unprecedented backlog and a deeply concerned
human rights bar on both the applicant and respondent sides, as well as
a troubled user
community.
At the SOCIAL BENEFITS TRIBUNAL (SBT or the Tribunal), the latest
Annual Report documents a continuing backlog, with 9,753 active cases
outstanding on March 31, 2022, as compared to 6,675 outstanding cases
on March 31, 2018. Over 90% of appeals are for denial of disability
benefits (ODSP). This
means that people with disabilities are left struggling to survive on
the much lower Ontario Works (welfare) benefits of $733/month while
they wait up to two years for an appeal hearing.
It is worth noting that many of these delayed appeals will result in
a positive result for the appellant. In a typical year, the SBT decides
almost 60% of ODSP appeal hearings in favour of the person with
disabilities,[15]
and in about 25% of disability
appeals, the Ministry itself reverses its original denial of benefits
after an appeal is filed and before the hearing. In all successful
cases, the individual will receive the increased financial support
retroactively, but for a person with disabilities, waiting up to two
years for a bump-up from
welfare rates can mean a loss of housing or a deterioration in health.
In 2021/22, only 47% of appeals were scheduled for a hearing within
6 months (with the notice sent out within 30 days), as compared to 94%
meeting this target in 2017/18. Although this is an improvement from
2019/20, when only 2% of appeals were scheduled within 6 months, there
is now a risk that
Tribunal will compromise the fairness rights of appellants caught in
the backlog as it has begun scheduling multiple hearings on the same
day without regard for the availability of counsel, thereby
overwhelming the capacity of legal clinic representatives to provide
representation.
For appellants who do get to a hearing, the cancellation of
in-person hearings means that many can only participate by telephone
because they do not have access to computers or the internet. The
delays have meant that appellants must testify about the impact of the
disability on their lives two
years earlier, putting them at a significant disadvantage.
In the face of delays, fewer individuals are filing appeals to the
SBT, perhaps preferring to start over with a new application, but this
would deny them the chance for retroactive benefits. In 2021/22, the
number of SBT appeals fell to 6,022, as compared to an average of 9,334
over the previous
5 years.
The 2021/22 Annual Report also documented an alarming increase in
the number of instances where the individual appellant is not on the
other end of the telephone line when their electronic hearing is
called. In 2021/22, the SBT dismissed 808 ODSP appeals in absentia, a
significantly higher number
than the average for the previous five years (568). For
self-represented appellants in particular, the failure to attend their
hearing may be attributable to the barriers created by the SBT's pivot
to electronic hearings instead of in-person hearings.
In the Automobile Accident Benefits Service division of the LICENCE
APPEAL TRIBUNAL, where accident victims can dispute their insurer's
compensation decisions, there is a growing volume of applications and a
significant increase in time required to process cases. The Tribunal's
Annual Report
documents a backlog of active cases that has grown from 4,241 in
2017/18 to 16,204 as of March 31, 2022.
Conclusion
Our adjudicative tribunal system deals with many important disputes
that would otherwise be handled by the courts. We call on the
Government and all parties to commit to restoring the accessibility of
the tribunal justice system, to ensure that the people of Ontario have
adjudicative tribunals
that are independent, expert, inclusive and able to provide dispute
resolution processes that are both fair and timely.
To this end, we are seeking a commitment from the Ontario
Government, the Ministry of the Attorney General, and Tribunals Ontario
to ensure commitments and actions to address this crisis, by:
1. Immediately establishing a backlog-dedicated panel of expert
adjudicators, chosen through an expedited, competitive, merit-based,
transparent process and assigned to resolve the thousands of
applications that are stalled at Tribunals Ontario, using proactive
case management, mediation and
adjudication.
2. Expediting the scheduling of cases in the backlog, while
recognizing the important role of representatives such as legal clinics
and the Human Rights Legal Support Centre in assisting thousands of
low-income individuals who appear before the SBT, the LTB and the HRTO.
This includes restoring
regional-based scheduling that will benefit both sides by allowing to
access to local rent support programs and tenant representation through
the Tenant Duty Counsel Program.
3. Re-establishing in-person hearings as a viable and accessible option for all parties.
4. Conducting an internal review of case resolution practices at the
HRTO to ensure compliance with the statutory duty to provide parties
with the opportunity to make oral submissions before dismissal.
5. Ensuring that that all tribunals have a full complement of expert
adjudicators, chosen through a competitive, merit-based process, able
to provide timely dispute resolution services, in both official
languages.
6. Restoring the standing stakeholder advisory committees that were
disbanded since the current Government was first elected in 2018,
allowing meaningful input into the design of tribunal processes,
including improvements to the rules and policies.
7. Depoliticizing appointments and reappointments to all
adjudicative tribunals by establishing an Adjudicative Tribunal Justice
Council to provide independent oversight of the adjudicative system.
Notes
See Type of hearing — still your choice.
The Social Security Tribunal of Canada states on its website that:
"Offering various hearing options is part of our commitment to access
to justice".
See: OBA Submission to Tribunals Ontario on Hearing Formats
and the Tribunals Ontario Portal, submitted to Tribunals Ontario by
the Ontario Bar Association, August 31, 2022; and "No Turning
Back: CBA Task Force Report on Justice Issues Arising from
COVID-19," and CBA Task Force (February 2021),
p.16-17.
3. At page 5, the OBA paper
stated: "A hearing format that deepens the disadvantage that vulnerable
parties already face in relation to better resourced opposing parties
raises serious procedural fairness concerns for tribunals serving some
of Ontario's poorest
and most vulnerable residents".
4. Some owners of rented
condominium units have turned to the courts to obtain vacant possession
of their units in the face of the delays at the LTB.
5 Although Tribunals Ontario defends its restricted access to
in-person hearings on the basis that it gets few requests, it has not
highlighted for parties that an in-person hearing is an option and it
has made the process of applying for an in-person hearing onerous. We
acknowledge that the
information on how to request an in-person hearing has recently become
more accessible on the Tribunals Ontario website, but the standard
communication to LTB parties includes this statement in bold: "To
protect the health and safety of all Ontarians, Tribunals Ontario will
be holding video hearings
to resolve applications with an option to participate by telephone if
you do not have access to the internet". This message has continued to
be a standard communication to parties, notwithstanding the fact that
all mandatory public health measures have been removed in Ontario for
months.
6 See here.
7. See here
8. See Toronto Star, Landlord and Tenant Board Resumes in person hearings
9. Many of these decisions were written by adjudicators whose
appointments were not renewed by the current government and who
had to complete hearings and write their outstanding decisions while
employed elsewhere after the expiry of their appointment. This
explains the delay in the release of decisions. It appears that only 4
of the 16 decisions were written by adjudicators who are currently at
the HRTO.
10. See: Frank Nasca, Jurisdiction and Access to Justice: An Analysis
of Human Rights Tribunal of Ontario-issued Notices of Intent to
Dismiss, Canadian Journal of Administrative Law & Practice; Vol.
35, Iss.3, (October 2022), and presented at OBA Annual Update on
Human Rights Law, May 25, 2022. This paper documents an increase
in Notices of Intent to Dismiss (NOID) from a pre-2018 five-year
annual average of 260 to 989 in 2021. Applications based on
race-related grounds were over-represented in the sample examined
in the research paper.
11. Section 43(2)1.
12. See: (Canada, Minister of Citizenship and Immigration) v.
Vavilov 2019 SCC 65.
13. The Human Rights Legal Support Centre (HRLSC) provides
summary telephone advice to assist applicants in self-drafting their
applications. The HRLSC will then accept a retainer to provide
representation if the applicant receives a NOID or is scheduled for a
summary hearing, mediation or full hearing.
14. Pursuant to a Freedom of Information request, Tribunals Ontario
informed Tribunal Watch Ontario that there were 8,979 active cases
as of December 31, 2021.
15. Tribunals Ontario Annual Report, 2021/22, SBT, Table 5.