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| Kathy Laird |
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| Voy Stelmaszynski |
In part two, we examined three important factors that have contributed to this crisis in administrative justice in Ontario: the politicization of the appointment process for Tribunals Ontario’s adjudicators and its leadership; the elimination of in-person, regional hearings; and a flawed case management system that has cost millions and was arguably unnecessary. Building on the findings of Ontario’s ombudsman, we showed how the new system of sending all LTB applications to electronic province-wide hearing blocks has built up the backlog by removing the robust opportunity for hearing-day settlements that characterized the regional in-person hearing system that operated for 20 years without a backlog.
Importantly, Tribunal Watch noted that the backlog and delays have continued to grow under the current leadership despite the fact that there are now more than double the number of adjudicators; tens of thousands of fewer applications filed over the last three years; and substantially more funding from government.
The Ministry of the Attorney General responded earlier this week, telling CBC that it was spending $6.5 million to appoint 40 more adjudicators and five more staff; providing more training; enhancing its call centre technology; and completing the implementation of a “new” case management system.
Before moving on to proposals to fix this situation, we want to respond briefly.
Last year, the LTB had 85 adjudicators. Recently the ministry told CBC news that the LTB now has 128 adjudicators. Back in 2018, it had approximately 53 adjudicators, thousands more cases coming in, and virtually no backlog. More adjudicators has not been the answer but training could certainly help. Legal clinics report that adjudicators today are often unfamiliar with the law and many do not know how to conduct a proper, fair hearing.
We do agree with the ministry that Tribunals Ontario’s call centre needs to improve. Wait times for the public who need help are now three times longer than reported in 2018/19, and only half as many calls were answered last year. It seems less certain that the plan to put more money into technology is the answer.
And speaking of technology, it is remarkable that the attorney general is citing implementation of a “new” case management system as part of the reason for the backlog and delays today. In 2019, the new leadership at Tribunals Ontario campaigned for the ministry to purchase this same “new” system from British Columbia. It was an unnecessary purchase. As documented by Ontario’s ombudsman in his 2023 report, Administrative Justice Delayed, Justice Denied, the LTB had been ready to launch, back in 2019, a brand new case management system that had been designed specifically for the LTB and built with in-house expertise over three years (paragraphs 103; 108). But by 2021, Tribunals Ontario had convinced the ministry to scrap that board-specific system in favour of the B.C. system, at an initial cost of $19 million. The ombudsman also reports that, since 2021, Tribunals Ontario and the LTB have had to spend “a significant amount of time and resources” in adapting the new system for the LTB (paragraph 111).
Today, three years later, the case management system purchased in 2021 is still not doing the job it needs to do. Ontario’s ombudsman documented at length how the many flaws in the system have contributed to what he called the “extraordinary backlog” and to the huge personal and financial costs to Ontario landlords and tenants whose applications were delayed or lost entirely by a system that wasn’t needed in the first place. In May 2023, Tribunal Watch Ontario asked the Office of the Auditor General to undertake a “value for money” review of the decision by Tribunals Ontario and the Ministry of the Attorney General to abandon the ready-to-launch case management system built in-house and to start all over in 2021 with the purchase of the B.C. system.
It is these kinds of decisions at the top that are derailing what was once quite a well-functioning adjudicative justice tribunal.
So what can be done?
The fact that the LTB backlog continues to grow, despite increased funding and a much larger complement of adjudicators, as well as tens of thousands fewer incoming cases, is proof enough that the problem originates in the loss of experience and expertise at every level, and is compounded by decisions made by the new leadership installed at Tribunals Ontario, including changing the way the LTB delivers service and bringing in unneeded and flawed new technology.
We point in particular to the almost complete elimination of in-person hearings, the closure of regional offices and the move to large simultaneous, province-wide electronic hearing blocks, with reduced opportunities for mediated settlements and effective duty counsel representation. These changes, championed by the attorney general and Tribunals Ontario as improving efficiency and accessibility, have proven to do nothing of the kind.
Tribunal Watch Ontario is putting forward three recommendations to address the crisis at the LTB:
1. Enact new legislation to depoliticize the appointments process
Tribunal Watch is calling on all Ontario political parties to support legislation to depoliticize the appointment process for all our adjudicative tribunals so that the loss of expertise and experience that occurred with our current government is never repeated. Our proposal for reform of the process for recruiting and selecting adjudicators and tribunal leaders is here.
2. Re-establish regional in-person hearings to promote settlements
Tribunals Watch is urging Tribunals Ontario to re-introduce regional in-person hearings at the LTB as the default hearing format for most applications.
Tribunals Ontario first pivoted to electronic hearings during the pandemic, as did other federal and provincial tribunals and the courts. But unlike most other tribunals and courts, especially those serving predominately unsophisticated or unrepresented parties, Tribunals Ontario did not restore in-person hearings as a primary hearing format at any of its tribunals after the crisis subsided.
Although Tribunals Ontario states that the so-called “digital first” format at the LTB is not “digital only,” the numbers belie that. In the last six months, there have only been 11 in-person hearings across the province, as compared to 36,699 electronic hearings (Landlord and Tenant Board (LTB) Key Performance Indicators | Tribunals Ontario).
As discussed in part two, and documented by Ontario’s ombudsman, the current practice of scheduling all cases into multi-application, province-wide blocks of electronic hearings has led to chaotic hearings, where parties can wait hours on a telephone line only to have their hearing dropped at the end of the day. Experienced counsel report that the current process is inefficient and not effective in managing a high-volume tribunal with a large number of unrepresented and often-not-computer literate parties. Over 90 per cent of tenants are not represented.
Electronic hearings should be readily available as an option, as is the case at other tribunals, with parties readily able to choose this format. In addition to promoting access to justice, the return of local in-person hearings, with attending LTB mediators and legal clinic duty counsel, as was formerly the case, can be expected to facilitate settlements in up to 30 per cent of cases, leading to an immediate reduction in the continuing build-up of the backlog.
3. Establish a specialized backlog reduction panel
The Ministry of the Attorney General must immediately establish a specialized backlog reduction team to focus exclusively on resolving the tens of thousands of cases stuck in the growing LTB backlog. The LTB can then direct its resources to managing its incoming caseload effectively, including the re-establishment of its regional presence and returning to in-person hearings as the readily available default option.
To ensure an expedited and effective recruitment of the specialized backlog team and its leader, the Ministry of the Attorney General should set up a transparent and competitive process that is separate from Tribunals Ontario, with the team’s senior leadership recruited by and reporting directly to the Ministry of the Attorney General. Tribunal Watch Ontario recommends that the selection panel for the leadership position include at least one chair or former chair with experience in leading a backlog reduction initiative.
A rigorous and competitive selection process would stand in contrast to the process that led to the appointment of the current executive chair. That position was first filled without a competition in June 2020, and then renewed for three years in December 2022 without a proper posting of the position. See part two.
Under the right leadership, it should also be possible to recruit experienced adjudicators, including some adjudicators previously appointed to the LTB, with deep expertise in the subject matter and the law.
This approach — establishing a specialized backlog team under separate leadership — has been adopted successfully by other adjudicative tribunals. It sets up a dedicated effort to provide long-delayed service to Ontarians stuck in the LTB backlog, while supporting the existing panel of LTB adjudicators to more effectively manage the incoming caseload, including through the re-introduction of regional in-person hearings. This is particularly important right now when the incoming case counts can be expected to build back to pre-pandemic levels in the next couple of years.
Conclusion
Tribunal Watch Ontario questions why the current government and in particular, Ontario’s attorney general, have failed to act on such glaring evidence of failure at the LTB under Tribunals Ontario’s leadership. This is particularly confounding in the face of last year’s ombudsman report finding that, to repeat, “… the Board has proven itself unequipped for the task of reducing its backlog of applications …. [and] fundamentally failing in its role of providing swift justice to those seeking resolution of residential landlord and tenant issues.”
The Ministry of the Attorney General and the ombudsman’s office may believe that improvements will be forthcoming in the months ahead. It is difficult to be confident that there will be hard evidence of that when Tribunals Ontario continues to fail in its responsibility to make available up-to-date and transparent information on its current case count, its ability to meet key performance targets, and its timelines for moving tens of thousands of cases in the backlog to resolution.
Tribunal Watch Ontario believes that it is a dereliction of responsibility for the Ontario government and its attorney general to have failed to take effective steps to end the misdirection at Tribunals Ontario that has led to hardship for hundreds of thousands of Ontarian landlords and tenants over the last three years. It appears that the government is willing to throw good money after bad, when, despite substantial increases in funding, more staff and a much larger panel of adjudicators, the backlog has continued to grow substantially even as the number of incoming cases falls.
This is the third installment of a three-part series. Part one: Ontario Landlord and Tenant Board numbers speak for themselves. Part two: Factors contributing to the LTB crisis at Tribunals Ontario
A member of Tribunal Watch Ontario, Kathy Laird is a retired human rights lawyer and former counsel at the Human Rights Tribunal of Ontario. She is former director of the Advocacy Centre for Tenants Ontario and the Human Rights Legal Support Centre. Voy Stelmaszynski is a retired solicitor with over 25 years’ experience in the adjudicative tribunal sector. He is a member of Tribunal Watch Ontario's steering committee. He can be reached at voystel@gmail.com.
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