WHY we advertise other provinces’ media write-ups in support of Injured Workers .
In Alberta information is not reported on the plight of Alberta injured workers through the media . If Alberta Injured Workers are lucky a story may be printed once or twice a year. Other provinces throughout Canada steadily have the support of the media which in turn garners the support of the public to outcry for justice. Although injured workers in Alberta suffer the same ongoing problems and maybe worse than other provinces, the public and Government is not informed .
Injured workers of Alberta need public and government support when the WCB Alberta and the Appeals Commission working for the WCB Alberta refuse to comply with the Workers Compensation Act, The Alberta Court of Appeal, the Supreme Court of Canada or Human Rights.
Out of sight of public scrutiny can allow those in power to abuse their power and ignore the laws and policies that are put in place to protect the disabled from work injuries that left them without any earnings , medical treatment and personal care.
Like this lucky fellow below, many injured workers in Alberta have had their claim accepted and meet all laws in Alberta and Canada but WCB Alberta and the AC still refuse to comply . The AC and WCB have made decisions against Alberta Injured Workers knowing they never had jurisdiction to overrule law. Injured Worker ‘s in Alberta cannot get justice without any public scrutiny Alberta Injured workers are ignored and cannot advocate alone.
ONTARIO VS. ALBERTA VS. OTHER PROVINCES
Tribunal adjudicators perform judicial functions. They must interpret legislation, weigh evidence and make legal and factual findings just as judges do. These tribunals are therefore properly understood to be judicial tribunals and the process for appointing and re-appointing adjudicators to judicial tribunals must be as principled as the process for appointing judges. At a minimum, decisions about re-appointments must be transparent and demonstrably free from any political interference. The process for selecting new appointees must be merit-based and competitive as required by the Adjudicative Tribunals Accountability, Governance and Appointments Act (“the Tribunals Act”).
The system the government inherited
The previous government established a modern tribunal appointment and reappointment system as set out in the Tribunals Act and the Directive on Appointments and Re-appointments. The key features of the system were as follows:
A commitment to a competitive, merit-based process for appointments to tribunals
Qualified candidates were subject to a rigorous application process conducted by thetribunal (e.g. published selection criteria, interviews, writing a sample decision).
The Chair provided the government with a list of the most qualified candidates.Appointments were made only from that list.
With very few exceptions, appointments were for fixed terms, starting with an initial two-year appointment, followed by a three-year re-appointment, and a final five-yearappointment.
The Chair was solely responsible for making re-appointment recommendations. Theserecommendations were routinely accepted by the government. While not perfect, this system had many advantages:
The Tribunal Chair, who is in the best position to know the tribunal’s needs, retained control over who would be appointed and re-appointed.
People could look to tribunal adjudication as a profession with a reasonable expectation of at least 10 years of work subject to good performance. This made the position attractive to mid-career professionals with expertise in the subject matter of the tribunal and often adjudicative experience. Adjudicators were eligible for appointment to a new tribunal at the conclusion of a term, preserving the adjudicative experience for the overall system.
The potential for partisan appointments was significantly reduced.
Tribunals could plan on the basis of having a stable group of meritorious and experienced adjudicators.
What the present government has done
The present government has largely abandoned the system it inherited.
Appointment recommendations from Chairs are frequently not accepted. Chairs have been pressured to consider alternate candidates proposed by the government.
Recommendations from Chairs about the re-appointment of existing adjudicators are routinely rejected, with no explanation provided. This is the principle cause of the existing severe shortage of adjudicators.
When re-appointments are made, they are for irregular and unpredictable terms. The length of terms has varied considerably even in the same tribunal, with no explanation for the different terms. Many new appointments have also been for irregular terms.
Most re-appointments have been for short terms, sometimes as short as 6 months. Even Chairs and Associate Chairs have been re-appointed for short terms.
Even before the COVID-19 emergency, the circumstances of Ontario’s tribunals were already dire. The tribunals of most relevance to disadvantaged individuals were, in particular, seriously weakened. Experienced adjudicators were let go, large numbers of vacant adjudicator positions were left unfilled, and key tribunal leadership positions were either left vacant or filled with people with responsibilities for too many tribunals. The lack of any predictability about re- appointments, combined with a general demoralization about the deterioration of the sector, has necessarily caused large numbers of adjudicators to leave for less precarious employment, adding to the shortage. The precarious nature of an appointment also makes it difficult for tribunals to attract experienced, professional candidates.
Now, in the midst of a pandemic, the folly of this situation is even more evident. The numbers of the vulnerable have greatly increased, as has their need to be able to claim the protections offered by our laws. Now more than ever tribunals need a full complement of highly qualified adjudicators. Now more than ever they need leaders with the necessary subject matter and adjudicative expertise to effectively deploy resources and adjust processes to ensure procedural protections and deliver high quality outcomes. Now more than ever Tribunals Ontario needs to be led by someone with recognized expertise in tribunal leadership, someone who will be widely recognized as an impartial, non-partisan and independent guarantor of the integrity of this vital part of our administrative justice system.
The tribunals in Tribunals Ontario will play a critical role as we move forward. They will have to change how disputes are resolved and make important decisions about rights and obligations in the continually changing context of the pandemic. To do this, they need to be fully functioning. The mismanagement of Tribunals Ontario over the last two years, leading to a severe reduction in adjudicative capacity and competence, rising backlogs, demoralization of those who are left, and a leadership vacuum, means that these tribunals are nowhere near being able to function fully.
There are three things that need to be done as quickly as possible to rectify this situation.
- Fill the leadership positions through a credible, competitive and transparent process: The position of Executive Chair of Tribunals Ontario is a critical position and must be filled quickly. However, if the process is not credible, competitive and transparent, the integrity of Tribunals Ontario will be compromised. Parties, the public, and the tribunal adjudicators will lose faith in the ability of tribunals to deliver justice. Appendix B provides a detailed discussion of this issue.
- Restore the integrity of the appointment and re-appointment process: Tribunals need to have adequate numbers of experienced, competent adjudicators. The ongoing refusal to re-appoint adjudicators on the recommendation of the tribunal Chair or Associate Chair must stop. New adjudicators must be appointed as quickly as possible and the appointment process must at a minimum be consistent with section 14(1) of the Tribunals Act which states:
14 (1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:
1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.
2. Aptitude for impartial adjudication.
3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.
3. Appointments and re-appointments must be for fixed terms
The current approach of inconsistent and mostly short terms for appointments and re- appointments will result in a serious erosion of the principle of adjudicative independence, a cornerstone of our justice system.
Those who appear before adjudicative tribunals must have confidence that the adjudicator in front of them has the necessary independence to make decisions on the basis of the law and the evidence, free from any concern that the adjudicator’s continued employment is conditional on the government’s approving the adjudicators decisions. This becomes especially obvious for tribunals where the government is a party.
Articles About WCB, Appeals Commission, and Injured Workers
Response to the WCB Review: To read the Canadian Injured Workers Association of Alberta Response to the Final Report of the Alberta Workers Compensation Board Review Panel, click here
PLATFORM FOR CHANGE (2004)
As amended by the Thunder Bay & District Injured Workers’ Support Group