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Editorial: Let’s be flexible on 10-year term limits

The Ontario government has some good reasons for its 10-year limit on appointments to administrative tribunals.

Editorial: Let’s be flexible on 10-year term limits
Editorial Obiter: Glenn Kauth
It took some time for it to reveal them, however. When Law Times reported recently on Ontario ombudsman André Marin’s concerns about the impact of a 2006 cabinet directive that places a limit of 10 years on appointments to regulatory or adjudicative agencies, the premier’s spokeswoman didn’t bother to provide answers to questions about the reason for it. Last week, a spokesman for the Treasury Board Secretariat offered an explanation. “The 10-year limit is intended to ensure regular membership renewal on the government’s adjudicative tribunals and regulatory agencies,” wrote Jason Wesley. “Regular membership renewal fosters a diversity of perspectives, continually refreshes the appointee roster, and provides other qualified individuals with the opportunity to serve.”

The reasons seem fair. As Wesley also noted, the 2006 change was an effort to standardize the length of appointments. The previous arrangement, he noted, provided for a maximum appointment of three years with reappointment subject to the appointing authority.

But as Marin noted, therer are significant concerns. His report followed a recent study by the Society of Ontario Adjudicators and Regulators that warned about tribunals’ ability to fulfil their statutory mandates in light of the looming loss of experienced members.

With tribunals feeling the full brunt of the change next year, several — particularly the Workplace Safety and Insurance Appeals Tribunal and the Ontario Labour Relations Board — are likely to see the biggest impact. By January 2018, for example, the labour board is likely to lose 48 per cent of its adjudicators, according to the report from the Society of Ontario Adjudicators and Regulators.

The society presumably has its own interest in raising the red flag, but the concern is fair, especially given the need for experienced adjudicators. And it rightly points out the lack of clarity in a provision in the directive that provides for additional appointments beyond 10 years in exceptional circumstances when that would be in the public interest.

Obviously, some flexibility would help. The government’s goals are entirely reasonable, but with the evident negative ramifications looming during a short period of time, it would be wise to provide some mechanism to address them.
Glenn Kauth

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