HELP WANTED: Effective leadership at the Human Rights Tribunal of Ontario
The position of Associate Chair of the Human Rights Tribunal of Ontario (HRTO) is vacant for the fifth time in as many years. Reporting to the Executive Chair of Tribunals Ontario, a cluster of 14 adjudicative tribunals, the Associate Chair is effectively the Chair of the tribunal, with responsibility for the recruitment and training of new members, management of the case load, development of procedural rules, as well as adjudicative and policy leadership.
These responsibilities require a person with expertise in human rights law and significant management and administrative experience. The requirement for subject-matter expertise is in fact legislatively mandated – section 32(3) of the Human Rights Code requires a competitive selection process for the appointment of members of the Tribunal and establishes the following criteria to be applied in assessing candidates:
- Experience, knowledge or training with respect to human rights law and issues.
- Aptitude for impartial adjudication.
- Aptitude for applying the alternative adjudicative practices and procedures that may be set out in the Tribunal rules.
This section applies to the appointment of members to the Tribunal, including the Associate Chair.
Appointments to the HRTO by the Ford government have generally not been made in accordance with these statutory requirements. While some competent human rights adjudicators have been appointed, the biographical information published by the Public Appointments Office indicates that few of those appointed were able to bring proven human rights law expertise or prior adjudication experience to their new positions.
Jeannie Theoharis, the most recent Associate Chair position, had no background in human rights law, although she had prior administrative and adjudicative experience. She is not being re-appointed. Her predecessor left the position after only one year to run as a Conservative candidate in the last federal election. She had worked as a jewellery designer for the 13 years before her appointment as Associate Chair and had not practiced law in that time.
The lack of requisite experience in leadership positions has been compounded by the refusal of the government to reappoint many experienced human rights adjudicators (seemingly only because they had been appointed by the previous government).
The HRTO has suffered significantly as a result of the loss of human rights expertise, with massive backlogs, huge delays, and very few full evidentiary hearings. In the past couple of years, the number of final merit decisions released by the HRTO has fallen by more than 50%, at the same time as the HRTO has dismissed an unprecedented number of applications at an early stage. There has been an alarming increase in abandoned applications, in many cases after the applicant has waited for more than a year for the Tribunal to move their case forward.
Tribunal Watch Ontario calls on the government and Tribunals Ontario to commit to a full and transparent recruitment and appointment process to fill this very important position and to ensure that the process complies with the applicable legislation.
The first step is to advertise the position and to make clear that, as required by statute, the necessary qualifications include human rights law expertise and demonstrated dispute resolution experience, in addition to proven managerial expertise.
The selection committee should include at least one person who is not part of Tribunals Ontario or the government, for example, a representative from the Ontario Bar Association or a former tribunal chair or chair of a different tribunal.
It is imperative that the selection process be fully transparent and designed to find the best candidate for this very important position.