Ontario government has right to not reappoint tribunal members, judge says in striking class action

Rejects argument of increasing politicization of adjudicative bodies, saying Crown has prerogative

Ontario government has right to not reappoint tribunal members, judge says in striking class action
Alexandra Monkhouse, Monkhouse Law Employment Lawyers

The Superior Court of Justice for Ontario has dismissed the case of a former vice-chair of the Ontario Assessment Review Board (ARB) who launched an $80 million class action suit against the province, claiming he and other appointees were terminated “improperly and illegally” from their full-time positions without cause.

While the plaintiffs say the case speaks to the problems caused by the “increasing politicization” of tribunals in Ontario and how hundreds of members, vice chairs and other adjudicators lost their opportunity for renewal when the provincial government changed after the 2018 provincial election, the appeal court said that such tribunals are inherently political.

“Realistically, this class action involving the mass refusal of reappointment of adjudicators was going to be challenging,” said Alexandra Monkhouse, one of the lawyers for the plaintiffs. “Unfortunately, the court decided that the government had the discretion to refuse the reappointments.” She added the time limit for appealing the decision has not yet been reached.

Despite the outcome, Monkhouse said it was a valuable case to put before the court. “It was an important issue to bring it forward.”

She noted that the legislation that put into motion the current appointment process had the self-stated purpose “to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations while remaining independent in their decision-making” and that members be selected through a competitive, merit-based, public process and establish criteria in assessing candidates.

“Our understanding was that the point of the act was to cut out the politicization of the process.”

Governments have discretion to appoint who it wants, judge says

However, Justice Edward Morgan said in the recent decision that “to say that a discretionary decision by the government was politically motivated is to say very little.

“Courts have confirmed that governments are by their nature political entities. Accordingly, a political motive underlying a statutorily authorized discretionary decision by the government [not to reappoint a tribunal member] does not render that decision illegal or improper.”

He added that “there is nothing illegitimate in a new government making appointments to administrative agencies, boards, and tribunals which take into account its own policy choices and political inclinations.”

In fact, “to strip all politics from the decision would render meaningless the statutory delegation of this discretion to political representatives.” He added that “factoring political considerations into an appointment or reappointment decision is not prohibited and, indeed, is considered neither inappropriate nor unprincipled.

“It is plain and obvious that the claim cannot succeed.”

Ottawa lawyer Scott McAnsh was appointed to the ARB after applying in 2013 and submitting to a public selection process based on merit. After another merit-based competition, he was appointed to a two-year term as a full-time Vice Chair in 2017.

However, instead of the expected three-year appointment in 2019 and a further five-year term that he felt was promised, the Attorney General wrote to him saying he wouldn’t be renewed., without an explanation. His last Order-In-Council appointment expired on June 28, 2019.

McAnsh then retained Monkhouse Law Employment Lawyers claiming the government improperly ended his term for the $140,000 a year appointment and the terms of other appointees to provincial tribunals. The plaintiffs contend that embedded as part of the employment contract formed by the appointment was that the term would subsequently be renewed.

Justice Morgan said in the ruling that McAnsh “does not claim that his non-renewal as an ARB member in 2019 was discriminatory in the sense of a human rights violation or that it resulted from corruption or any other public law offence to which the government is bound. Rather, he pleads that the defendant was, in effect, his employer and that, in that capacity, it breached its contractual promise of extended employment.”

McAnsh alleges that these subsequent appointments were guaranteed to him, conditional only on receiving a positive recommendation by the Associate Chair of the ARl, which he obtained. The statement of claim also pleads that the failure of the current Ontario government to reappoint members that the previous Ontario government appointed violates “the principle of independence of adjudicative tribunals.”

In his view, McAnsh said he had from the outset “accepted the offer of not only the two-year term but of the ten-year fixed term of employment, conditional only on the performance of his duties as recommended by the associate chair.”

In response, the government defendants filed a motion to strike the statement of claim because “it does not plead a viable cause of action, cannot succeed, and is therefore frivolous, vexatious, and an abuse of process.”

The government argued that there could be no breach of employment contract since the McAnsh and other potential class members are statutory office holders by appointment, not employees. It argued that “even assuming the facts pleaded in the statement of claim are true, as a matter of law there is no obligation on government to reappoint a fixed-term office holder, and therefore there is no reasonable prospect of success for this claim.”

The government argued that an OIC appointment to an adjudicative tribunal is a fixed-term appointment, not an employment contract, and “there can be no breach of contract claim arising from the completion of the term of the appointment.”

As well, there is no contractual or other right to reappointment. “The decision to appoint and reappoint lies with Cabinet, and that discretion cannot be fettered or delegated.

“The discretion to appoint is an exercise of prerogative by the Crown, specifically authorized by statute and limited only by the terms of the OIC under which the appointment is made.”

Justice Morgan said that while the plaintiff alleged that the failure to reappoint him as “promised” undermines the rule of law. “In fact, the opposite is true. In upholding the rule of law, a court cannot contemplate enforcing what the plaintiff describes – a surreptitious promise whispered in his ear by an unidentified official, contrary to the express terms of the OIC and governing legislation.’

An adjudicator is not akin to government contract workers

Justice Morgan wrote that an important distinction is that adjudicative tribunal members have terms fixed by legislation and cannot bargain over their salaries, duration of their tenure, or other employment terms. “A common-sense view of an adjudicator . . . is that they are not akin to government contract workers. Rather, they are entirely independent of government in both form and function.”

He wrote that while the government is obliged to respect the fixed term of an appointment when enshrined in legislation or the OIC, “it is neither obliged nor authorized to retain the appointee beyond that fixed term without a specific reappointment.”

The legislation which allows for appointments of tribunal members through OIC notes that a government cannot “abrogate the term of an appointment, but neither does it extend the term beyond its fixed termination date.”

Consequently, “the prospect of reappointment, even a subjective expectation of one, is not a promise” of renewal.

“As a matter of logic, the decision not to reappoint the plaintiff cannot be a breach of contract. Not only is a statutory appointment not governed by the law governing employment contracts, but a government decision not to reappoint someone to a new term is simply not the same as a decision to terminate an existing fixed term.”

Monkhouse notes that some potential candidates for membership in these tribunals may choose to avoid putting themselves forward if there is a concern that there is no certainty of reappointment.

“Will it affect the quality of adjudicators who come forward? I suppose this is something that will have to be taken into consideration. Certainly, the message is that you are serving at the pleasure of the government and may not be reappointment, even if you are recommended for it.”

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