On February 27, 2001, the Ontario government released its consultation paper entitled Looking Forward: A New Tribunal for Ontario’s Workplaces. If implemented, the government’s proposals would:
- merge the Ontario Labour Relations Board, the Workplace Safety and Insurance Appeals Tribunal, the Pay Equity Hearings Tribunal, the Education Relations Commission, the College Relations Commission, and the Board of Inquiry under the Human Rights Code into one unified tribunal;
- review the functioning of the Office of the Employer Adviser, the Office of the Worker Adviser and the Pay Equity Office; and
- review the Crown Agency status of the Grievance Settlement Board.
POWERS OF THE NEW TRIBUNAL
Most of the attention has been focused on the proposed unified tribunal. The consultation paper claims that the new body would provide “single window access” for the resolution of most work-related disputes. This single window would have the effect of reducing uncertainty about where to go to have a matter adjudicated, and would eliminate the well-known problem of duplication of proceedings.
Sensitive to the criticism that this single access point could result in litigants raising multi-issue complaints, the paper raises the possibility of providing the tribunal with the power to award costs. This would encourage the early resolution of disputes and discourage frivolous or vexatious claims. Also under consideration are user fees. However, the paper acknowledges that such fees should not act as a barrier to legitimate claims, and should be flexible in order to deal with the particular circumstances of individual parties.
It is proposed that the tribunal be given a number of powers to expedite the adjudication process, such as:
- the ability to conduct paper hearings, or hearings via teleconference where appropriate;
- the power to make summary rulings dismissing claims for disclosing no prima facie case;
- the use of screening panels to weed out unmeritorious claims; and
- allowing decisions to be made by way of endorsements accompanied by brief reasons where appropriate.
It is also urged that the tribunal make extensive use of non-adversarial models of dispute resolution. Specifically, it suggests greater use of Med/Arb, a technique in which one person first mediates, then arbitrates the dispute. The paper recommends that the proposed tribunal have the power to mediate at any stage of the proceedings, with the consent of the parties.
It is proposed that the norm be that of single-person adjudication. The paper notes that this is consistent with the practice in the courts, as well as the direction being taken by other agencies and tribunals. Multi-person panels would, it is suggested, be reserved for exceptional cases with serious implications going beyond the parties, or cases involving complex circumstances.
The proposed tribunal would be headed by one Chair, accountable to the Minister of Labour, and designated by Order in Council for a fixed-term appointment. The performance standards and expectations that the Chair and other appointees to the tribunal would have to meet are reflected in four documents of the Public Appointments Secretariat and the Agency Sector Coordination Unit of Management Board Secretariat. These documents are a form of an Appointment Agreement, a Competency Framework, a Performance Management Framework, and a Model Code of Conduct.
Vice-Chairs would be appointed in the same manner as the Chair. The paper recommends that Vice-Chairs be predominantly full-time appointments, but suggests that the legislation could also allow for part-time appointments of Vice-Chairs.
The last point is a matter of some concern to those living outside the Toronto area. Allowing for part-time appointments of Vice-Chairs may be precisely the right way to get local service without incurring a huge expense, especially in regional areas such as Ottawa. Limiting the number of part-time appointments gives rise to other concerns as well. By restricting the use of part-time Vice-Chairs, the Ministry will effectively erode the wealth of labour arbitration expertise that has been built and added to over the years. The loss of this expertise and the expressed intention of the Ministry to attract “generalists” to serve as adjudicators could require an enormous General Counsel’s office to advise the generalist Vice-Chairs.
HUMAN RIGHTS, WRONGFUL DISMISSAL
The paper notes that Boards of Inquiry under the Human Rights Code deal primarily with allegations of discrimination in employment, such complaints comprising some 75 percent of the cases. Despite this, it recommends inclusion of the Board in the new tribunal, stating that the need for this specialized expertise would be respected in absorbing the Board’s adjudicative functions.
One of the “Issues for Discussion” listed in the consultation paper raises the possibility of the tribunal also taking jurisdiction of wrongful dismissal claims. Such claims, of course, are distinct from the other matters under consideration for inclusion in the tribunal, as they are currently under the common law jurisdiction of the courts.
In Our View
The Ministry of Labour provided a two-month consultation period to discuss the proposals put forward in this paper. Unions have already criticized the proposals as a watering down of the independence of workplace dispute adjudicators and for the reduction in the number of persons who will serve as adjudicators. Employers are likely to appreciate the fact that hearings before a number of tribunals may well be a thing of the past, and that the tribunal may be given the power to order costs and the imposition of user fees. (For more recent developments, see “Ontario Government backs off on plans for super-tribunal” on our Publications page.)
For further information, please contact Jacques A. Emond at (613) 563-7660, Extension 224.