Heard but not Seen at Tribunals Ontario
A new program introduced by Tribunals Ontario designed to improve access to justice for parties with no computer or internet service appears to be more of a mirage than a reality.
The Mobile Access Terminal Service was announced in April 2023, and touted by Tribunals Ontario, the umbrella for 13 provincial tribunals, as a benefit for parties with technology-related challenges to be accommodated “almost anywhere in the province.”
The service promised that parties in rural areas and small towns who had no access to a computer or reliable internet service would not have to travel to one of five hearing centres in large cities to get access to computers. Tribunals Ontario has retained almost completely the electronic hearing format of the Covid era, saving it plenty of money in travel and meeting room costs.
In announcing the new service, Tribunals Ontario said it would enhance access to justice, enabling parties to fully participate in hearings. Tribunals Ontario, it says, would “identify a suitable alternate venue and coordinate the required equipment, including a laptop and internet connection. Technical support will also be provided on the day of the proceeding to help parties with basic technology issues or questions.” The only requirement is an “approved accommodation request.”
But therein lies the catch: not one of the accommodation requests has been approved for one of the groups that need the service most: appellants at the Social Benefits Tribunal (SBT).
The SBT hears appeals from decisions denying Ontario Disability Support Program (ODSP) or Ontario Works benefits. Most cases involve the ODSP. Claimants are among the lowest income people in the province. Even if successful in their appeals, ODSP benefits are only $1,368 monthly if the person is eligible for the maximum shelter allowance, while Ontario Works is at $733. Before the pandemic, the SBT held in-person hearings at dozens of locations across the province.
Now, however, the SBT has consistently been denying requests for accommodation by parties with no access to computers or internet, often telling claimants that they should just use the audio on a telephone to participate in the hearing. The result is a hearing where the claimant cannot see the adjudicator or other participants, and cannot be seen, while the government, which sometimes makes oral arguments against the appeal, is there in living colour.
This heavily tilted playing field disproportionately affects rural and small-town claimants, who are forced to explain their disability in an impersonal format. One legal clinic, the Belleville-based Community Advocacy and Legal Centre, estimates that it has submitted nearly 40 requests for accommodation to the SBT, but not even one has been approved.
Tribunals Ontario’s accommodation form allows a party to check off one of two reasons for requesting accommodation: on grounds related to the Human Rights Code or on grounds related to procedural fairness. The form specifically includes access to technology as an example of procedural fairness grounds.
Yet the Belleville clinic, which serves a large swath of eastern Ontario including rural areas and small towns, has found it impossible get the SBT to approve an accommodation. The response to a request based on procedural fairness is typically an email from an SBT administrative employee, saying that “the SBT is not persuaded that a telephone hearing would significantly prejudice the Appellant in this case, and given the nature of the request, the SBT is not persuaded that the Appellant will necessarily be unable to proceed by way of videoconference.” Sometimes the email states that the request has been reviewed by a vice-chair of the tribunal (unnamed) who “is not satisfied that a telephone hearing would result in a procedural unfairness in this case.”
The Belleville clinic handles more than 200 SBT cases annually. Many of these clients do not have a car or reliable internet service and live in areas with no public transportation to Belleville, where the clinic can host an electronic hearing, as many legal clinics do. The clinic has sometimes paid for taxis – something it has no budget for – and has accepted the SBT’s occasional accommodation offer of paying for a taxi ride to and from the clinic for a hearing. But this raises the question: what happened to the idea of giving parties without computers or good internet service an option to attend a hearing closer to where they live?
Frustrated with the consistent pattern of refusals, the Belleville clinic filed a freedom of information request early in 2024 to find out what criteria are used and how often requests for accommodation are approved. Six months later, Tribunals Ontario provided some startling answers.
The response says that neither Tribunals Ontario nor the SBT has any policies, procedures or guidelines related to the mobile access service but that decisions are made “on a case-by-case basis by an SBT adjudicator” – an open invitation to inconsistency and arbitrariness.
Further, the response says 10 requests for use of the service were made to the SBT in the 13 months ending on March 31, 2024, and not one was approved. It says four of those requests were denied, four withdrawn, while two were resolved with an alternative accommodation. Lisa Turik, a lawyer with the Belleville clinic, says she believes all 10 of the SBT requests were from her organization. The two that were resolved involved the SBT providing taxi service to the clinic, but she told Tribunal Watch Ontario she doesn’t understand the ones labelled withdrawals, as the clinic has never withdrawn a request. In the months since the period covered by the response, the clinic has made more than two dozen more requests, but still is batting zero.
Overall, other Tribunals Ontario tribunals seem to have a more accommodating attitude than the SBT toward requests for accommodation. The freedom of information response says six out of seven non-SBT requests to use the mobile access service were granted, along with another six where the party had not specifically requested the service. Those accommodations were used in eight hearings – four at the Landlord and Tenant Board and four at the Child and Family Services Review Board.
The response added that when the service is approved, it’s up to Tribunals Ontario’s contractor, Resolve Collaboration, to find a suitable place to set up equipment near where the party lives. The Toronto-based contractor appears to understand the value of trying to put parties on an equal footing. Its website notes that “ensuring equal access to the justice system requires proactive measures to address witness disparities, such as individuals who lack access to computers, reliable internet, the necessary technological literacy or private spaces from which to participate.” It adds that “socioeconomic disparities can exacerbate existing inequalities, with those who cannot afford or access technology being at a disadvantage in participating effectively in virtual hearings.” But the contractor is only as good as the system for approving accommodations.
Where a party doesn’t even have a phone, the mobile access service can send one out. But Ms. Turik said one client ran into trouble with the tribunal when they tried to use it to call a courier to pick it up after a hearing. She said she worries about the parties who are unrepresented and often disabled, and those who may be offered taxi rides but have to pay upfront before being reimbursed.
“I’m personally incensed by them creating a program that doesn’t do anything,” Ms. Turik told Tribunal Watch. She said legal clinics have raised the issue with the SBT and with Tribunals Ontario with no satisfaction. “They don’t view phone-only hearings as procedurally unfair,” she said, adding that parties have a right to see and be seen. Before Covid, the SBT would hold in-person hearings in several small centres in the clinic’s catchment area. Some of the large amount of money saved by not booking meeting rooms or having adjudicators travel could easily be spent making virtual hearings fairer.
The Belleville clinic has now filed a complaint to the Ontario Ombudsman about the SBT’s lack of procedural fairness in its failure to approve applications under the service, citing the opaque decision-making process and the lack of policies underpinning the refusals.
It’s time the SBT started making a dent in its perfect record of refusing requests for fairness in its hearings.