University of Toronto Faculty of Law Review

Appointments to Adjudicative Tribunals: Politics and the Courts

Katrina Miriam Wyman

ABSTRACT

After it was elected in 1995, Ontario's Progressive Conservative government began to put its imprint on the Ontario Labour Relations Board (OLRB), one of the province's most established administrative tribunals, by replacing the chair of the OLRB and introducing new labour relations legislation. In 1996, four OLRB vice-chairs were removed from office even though they had time remaining in their term appointments. Three of the vice-chairs challenged their dismissal in a case that eventually reached the Ontario Court of Appeal. Together with two intervenors, the vice-chairs argued that their removal had undermined the independence of the OLRB. In contemporaneous litigation, other courts considered allegations of an apprehension of bias stemming in part from the mid-term removal of the vice-chairs.

This article examines the constraints imposed by the common law on the process of appointing members of adjudicative tribunals, such as the OLRB. It is argued that there are indications that the common law principle of independence (as opposed to the law on bias) is evolving toward the imposition of some constraints on adjudicative appointments. This article also considers whether the common law on independence should, as a matter of policy, be extended by the courts to remedy two omissions in the legislation governing the OLRB and many other tribunals--the absence of a requirement that adjudicators be appointed for fixed terms during good behaviour, and the absence of a statutory process for appointing and removing adjudicators. It is submitted that the courts should refrain from mandating each of fixed terms and a selection process through the common law for three reasons--specifically, the dual role of tribunals as adjudicators and as makers and implementors of public policy; the lack of evidence that the courts have special expertise making them particularly suited to reforming the appointments process; and the inadequacy of the common law as a legal basis for reforming appointment practices.

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Citation: (1999) 57(2) U.T. Fac. L. Rev. 101.
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