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| Kathy Laird |
Early in its first term, in January 2019, the Ford government moved these three important tribunals, used by tens of thousands of Ontarians every year, into a new 13-tribunal entity, Tribunals Ontario. The government moved quickly to put its own stamp on these and other Ontario tribunals, stripping them of expertise by replacing experienced leadership, often with Tory insiders, and appointing decision-makers who lacked demonstrated knowledge of the relevant law or experience in mediating and adjudicating disputes. The government appointed a new executive chair of Tribunals Ontario in 2020.
At the LTB, the HRTO and the LAT-AABS, which together conduct almost 90 per cent of the hearings at Tribunals Ontario, the new leadership has implemented changes that have undercut fair process, particularly for people without legal representation.
In-person hearings in your own community are a thing of the past. The Ontario government closed 44 regional hearing centres, saving rent, while spending millions on a sole-sourced case management system that, years later, is still unable to produce data on key performance measures, such as the percentage of mediations and hearings that are scheduled within target time frames.
Attorney General Doug Downey has been urged to take steps to reverse the damage to the tribunal justice system, by organizations as varied as the Toronto Regional Real Estate Board, the Ontario Trial Lawyers Association, Tribunal Watch Ontario, Legal Aid Ontario’s legal clinics and Ontario’s Ombudsman.
Tribunal Watch Ontario has released a full report on its findings. Here are some key facts:
Landlord and Tenant Board
- In 2018, a tenant used to wait, on average, 40 days for a hearing at the LTB. In 2024, the wait was 277 days, according to data on the Tribunals Ontario website. When a landlord filed an application in 2018, they could expect to have a hearing within 32 days. In 2024, the same landlord waited 90 days for an eviction hearing in an arrears case and an average of 167 days for all other landlord applications.
- Much touted “modernization” and “digitalization” at the LTB has reduced its efficiency: the number of cases that each adjudicator resolves annually appears to have fallen by half under the current leadership.
- The LTB has developed a massive backlog after it was moved into Tribunals Ontario, peaking at over 53,000 cases in the period covered by the latest Annual Report, despite the fact that the board received, cumulatively, over 50,000 fewer incoming applications over the three previous fiscal years.
- In the current fiscal year, 2024/25, the backlog has finally dropped to a last-reported figure of 46,632 cases, as of July 31, 2024. While this is an improvement, it compares badly to an average backlog of less than 14,000 in the years before the LTB came under its current leadership.
- Electronic (“digital”) hearings have proven to be less efficient in achieving mediated settlements on the hearing day. Since Tribunals Ontario removed the right to an in-person hearing, the annual number of cases resolved through mediation has fallen to just over 5,000, compared to an average of 10,799 in the five previous years.
- This drop in the number of settled cases after “digitalization” explains more than half the current backlog. When both parties attended an in-person hearing, 34 to 40 per cent of scheduled cases were reported to settle on the hearing day. Digitalization has contributed significantly to the backlog and the enormous delays that are hurting landlords and tenants.
- The move to digital hearings has also created procedural inequities. Many tenants lack adequate access to computers or the Internet and can only participate in their electronic hearing by telephone, while landlords and the adjudicator are together in a Zoom hearing room.
- Of over 74,000 LTB hearings in 2023/24, only 25 were held in person. And the stakes are high for tenants forced to participate at a disadvantage — well over 80 per cent of LTB applications are landlord applications for an eviction order.
- Tenants, in the past, were assisted at their in-person hearing by local legal clinic lawyers on site at regional centres. Today, legal clinics struggle to connect with tenants who phone in or Zoom in to a province-wide hearing block. More than 90 per cent of tenants are not represented by a lawyer at the LTB.
Human Rights Tribunal of Ontario
- 97 per cent of all final decisions at the HRTO last year were dismissals without a hearing, mostly of cases stuck in the HRTO backlog for years. Data in successive annual reports shows that the number of dismissals without a hearing has doubled since the HRTO was moved into Tribunals Ontario by the Ford Government.
- Rigid and onerous new filing requirements seem to be pushing human rights claimants out of the system. Over 80 per cent of claimants lack a lawyer, according to data on the Tribunals Ontario website, but the HRTO now requires legal submissions at several stages, resulting in a three-fold increase in the number of claimants who abandon their claims after being mired for years in the backlog.
- Claimants are now not allowed to testify at all at their own hearings if they have failed to file their own witness statement, notwithstanding their completion of a detailed application form setting out the basis for their discrimination claim.
- The HRTO is issuing less than half the number of discrimination decisions as in past years. A review of reported decisions for 2023/24 shows that, for the very few human rights cases that make it to a full hearing, the wait from filing to a decision is now typically between four and six years.
- Compare this to 2018, when almost 70 per cent of final discrimination decisions were issued within two years of filing.
- The HRTO held only nine in-person “hearing events” in 2023/24.
- The Human Rights Legal Support Centre, established to provide free legal services to claimants, has been forced to cut its legal staff in half due to frozen funding from the Ontario government. According to its own Annual Report, it is now assisting thousands fewer victims of discrimination every year, even as rigid procedural barriers are erected by the HRTO.
Licence Appeal Tribunal — Automobile Accident Benefits Service
• At the LAT-AABS, a process that was supposed to empower self-represented accident victims pursuing claims against their own insurance companies has failed miserably. A report by the Ontario Trial Lawyers Association (OTLA) described the process as “overly rigid” and “fraught with procedural unfairness.” The report questions the qualifications and training of the adjudicators.
- Out of 4,500 decisions released over the past eight years, only 217 decisions involved a claimant without a lawyer.
- Adjudicators appear to be favouring insurance companies, according to the OTLA report. In those 217 decisions, the LAT-AABS ruled in favour of the insurance company more than four times more often than for the self-represented individuals.
- There were only 33 successful claims by unrepresented claimants out of 4,500 decisions over the past eight years.
- The success rate for injury claims against insurance companies is reported to have fallen from 33 per cent to 10 per cent.
- The success rate for insurance companies in the same period rose from 56 to 71 per cent, according to the OTLA report, while split decisions went from 11 to 19 percent.
Conclusion
The LTB, HRTO and LAT-AABS are only three of the 13 tribunals at Tribunals Ontario, but they are responsible for almost 90 per cent of the hearings. Of over 101,000 hearings held at the 13 tribunals in 2023/24, almost 90,000 were before one of these three tribunals.
Deficits in the accessibility, timeliness and fairness of the dispute resolution process at these three tribunals are not a sidenote to an otherwise successful track record for Tribunals Ontario. Rather, the continuing crisis at these three tribunals, and the public calls for immediate review and reform, serve as an indictment of the leadership of Tribunals Ontario.
Tribunal Watch Ontario believes that a good first step would be to restore the right to in-person hearings, with digital hearings as an option. Besides addressing inequities for parties without IT resources, it would result in a more efficient process at the LTB in particular, as many more applications would settle, as in the past, on the hearing day. The removal of onerous procedural rules, particularly at the HRTO and the LAT, is also critical to restoring accessibility and equity to two regimes that were introduced under previous governments with the explicit goal of creating a hearing process that would be easily navigable by Ontarians who could not afford a lawyer.
Tribunals Ontario is taking these tribunals down the wrong track. Redirection is long overdue.
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 the former director of the Advocacy Centre for Tenants Ontario and the Human Rights Legal Support Centre.
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