On a date to be proclaimed, the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (Ontario) will come into force. This Act received Royal assent as part of the Good Government Act, 2009 passed on December 15, 2009.
The Act applies to prescribed adjudicative tribunals. Such tribunals will be prescribed as part of the regulations, which have yet to be promulgated. The Act sets out several public accountability documents that are to be drafted by each adjudicative tribunal, including a mandate and mission statement, a public consultation policy, a service standard policy, an ethics plan, and a member accountability framework.
- The consultation plan must describe whether and how the tribunal will consult with the public when it is considering changes to its rules or policies.
- The service standard policy must set out the standards of service that the tribunal intends to provide and a process for making, reviewing and responding to complaints about the tribunal's service.
- The member accountability framework must contain a description of the functions of the members of the tribunal and a description of the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed as a member of the tribunal as well as a code of conduct for the members of the tribunal.
The Act also requires adjudicative tribunals to prepare governance accountability documents, including a memorandum of understanding, a business plan and an annual report.
The memorandum of understanding is to be entered into with its responsible minister and must contain the financial, staffing and administrative arrangements for the tribunal, the accountability relationships of the tribunal, the recruitment, orientation and training of the tribunal's members and the tribunal's planning and reporting requirements.
Where the adjudicative tribunal is part of a "cluster", the mandated public accountability documents and governance accountability documents must be jointly developed, prepared and entered into.
Recently, the Assessment Review Board, Board of Negotiation, Conservation Review Board, Environmental Review Tribunal, and Ontario Municipal Board were arranged into a cluster, called the Environment and Land Tribunals, under the oversight of Michael Gottheil. Mr. Gottheil acts as the new cross-appointed Chair, accountable for all the Environment and Land Tribunals. His office is intended to be responsible for the detailed Memorandum of Understanding with the Minister to govern the management of the cluster.
Such restructuring is intended to help reduce hearing time, writing time and disposition time, promote efficient use of administrative and professional support, enhance consistency in tribunal practices, procedures and decision making, and increase transparency and community engagement.
Until the Regulations or Directives provide more detail as to the content of the public accountability and governance accountability documents, it is not entirely clear how such laudable goals will be achieved. For example, will the tribunals set hard turnaround dates for dispositions? Will decisions from all the tribunals be available electronically? Currently access standards vary across the Environment and Land Tribunals from comprehensive to non-existent. Without more concrete requirements, it is difficult to project the effectiveness of these reforms in promoting accountability, transparency and consistency.
The Act also provides for a selection process for the appointment of members to adjudicative tribunals. The process is to be competitive, merit-based and public, and candidates are to assessed based on prescribed criteria, including:
- Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal;
- Aptitude for impartial adjudication;
- Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal's rules.
The public recruitment process must also set out the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed a board member. This process appears to only apply to the appointment process, not to reappointments of members. Reappointments do not appear to require a further competitive process. However, every reappointment requires the recommendation of the Chair who is to be consulted on these prescribed criteria. There has also not been any cap placed on the number of times a member can be reappointed, which follows the recommendations set out in comments received on the draft legislation.