Ontario Tribunal Clusters: "Many Attend, Few Understand"

(with apologies to Leo Durocher)

The Six-Minute Administrative Lawyer 2014

Part 1: An Introduction to Clustering

a) What is Clustering?

• Clustering brings together a specific group of adjudicative tribunals within a single organization, but maintains each tribunal’s distinct statutory jurisdiction and membership
• Clustering follows a trend in a number of jurisdiction globally (Québec, Australia, New Zealand, U.K.) which aims to restructure the administrative tribunal sector, but to date is an approach unique to Ontario
• Under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (“ATAGAA”), the government may designate a cluster when:



“…the matters that the tribunals deal with are such that they can operate more effectively and efficiently as part of a cluster than alone.” (s.15)

• Clusters are formed by Regulation under ATAGAA. The constituting statute of each constituent tribunal is not changed
• Pursuant to ATAGAA the government shall appoint an Executive Chair, who has all of the powers, duties and responsibilities of the Chairs of each constituent tribunal
• The government may appoint an Associate Chair for each of the constituent tribunals
• The Executive Chair may assign any of his or her responsibilities (except that of Ethics Executive) to any Associate Chair or Vice Chair
• Beyond this modest statutory framework, and the directive that the purpose of clustering is to enhance the “efficiency and effectiveness” of how subject matters are dealt with, there are no articulated legislative or policy objectives that set out how clusters are to be organized, or specific initiatives they should pursue. This has led some to see clustering as an evolutionary or organic transformation exercise, which allows each cluster to develop in ways that best respond to the needs of their respective user communities, and the mandates of their constituent tribunals. The uncertainties inherent in clustering can seem puzzling, or even daunting, but the model has the potential to support innovative approaches to the delivery of justice.

b) Clustering to Date

• Environment and Land Tribunals Ontario (ELTO)

• Assessment Review Board
• Board of Negotiation
• Conservation Review Board
• Environmental Review Tribunal
• Ontario Municipal Board

• Social Justice Tribunals Ontario (SJTO)

• Child and Family Services Review Board
• Custody Review Board
• Human Rights Tribunal of Ontario
• Landlord and Tenant Board
• Ontario Special Education Tribunals
• Social Benefits Tribunal

• Safety License Appeals and Standards Tribunal Ontario (SLASTO)

• Animal Care Review Board
• Fire Safety Commission
• Licence Appeal Tribunal
• Ontario Civilian Police Commission
• Ontario Parole Board

c) Clustering as Justice Modernization

d) Challenges

• Defining a vision that resonates – internally and externally
• Building confidence among users
• Getting everyone to stay on course, where there is no roadmap, and no set destination
• Capacity of government to deliver on Co-location and IT

Part 2: SJTO: 3 Years On

a) Introduction

• Budget $48m
• 360 staff, 90 full time and 100 part time adjudicators
• 97,000 cases annually
• 5 separate case management and administrative units, including 4 Directors and 5 Registrars

b) Efficiencies Achieved

c) Achievements to Date

Cluster-wide Professional Development Unit

• Annual PD Institute for 200 full and part time adjudicators and mediators
• Tribunal specific new member training modules, including core competencies
• Development of training modules in human rights, decision writing, evidence, credibility assessment which can be delivered in-person and on-line
• Also supports staff training, and training for specific initiatives
• Strategic use of other professional development offerings such as SOAR, CCAT and , OBA and CIAJ

Cross-appointments

• 10% of SJTO membership is currently cross-appointed
• Specific, strategic and deliberate–to enhance expertise, not dilute it
• A vehicle to support professional and career development, regional coverage, caseload fluctuation, the inter-disciplinary dimension of SJTO’s collective mandate

Legal

• All tribunals now have access to expert, in-house legal unit
• Assists in development of coherent body of jurisprudence, supports tribunals’ expertise

Communications

• Consolidated website: facilitates access to information and services
• Co-ordinated resources, policy and approach for: Issues Management, FOI/Privacy, Complaints, Accessibility and Accommodation
• Consolidated Annual Report, business planning, fiscal management and reporting, operational planning and reporting

Stakeholder Relations

• Position of Executive Chair allows for active and transparent engagement with government, legal and community stakeholders
• E.g. establishment of working group between SBT, MCSS and community clinics to develop procedural improvements in social assistance matters

Capacity for Innovation

• Efficiencies and economies of scale allow for development of support models for legal services, professional development, accountability and controllership, communications
• Provides capacity for pilot and innovative projects. E.g.:
1. Child and Youth Division
2. Expedited Scheduling at LTB
3. Pre-Hearing Conferences at LTB
4. Co-op Housing Disputes
5. Medical Review pilot at SBT

d) Lessons to Date: Do's and Don'ts

Do's
• Embrace Efficiency
• Set a Vision
• Co-locate
• Build Capacity and Confidence
• Focus on Outcomes – Mind what Matters

Don'ts
• Expect too much too soon