Presentation for SOAR Building Together II
Clustering Reflections on the Experience to Date

Michael Gottheil, Executive Chair, Social Justice Tribunals Ontario

September 30, 2010

Good morning, and my thanks to the SOAR organizing committee for inviting me to provide my thoughts and reflections on the ELTO cluster, one year on. Clustering is really a collective journey, one in which the entire administrative justice community in Ontario can, and should participate. En famille sessions such as this, provide a forum for that participation. The topics I want to canvass this morning, and around which I hope a fulsome discussion will follow are:

The Goals

On one level, it can be argued that a cluster of tribunals has the same goals as any individual tribunal. For example, accessibility, fairness, timely resolution of disputes, principled decision making supported by clear, concise and intelligible reasons, consistency, being user centred, integrity and professionalism - are all fundamental values and objectives tribunals will seek to achieve. Moreover, these and other core values can be understood to be part of broader classes of objectives such as access to justice, accountability, and independence.

But a cluster, just like mergers, amalgamations, or multi-tribunal coordinating secretariats, can, in a variety of ways, advance these goals by changing the structures within which tribunals operate. The clustering approach set out in the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 falls somewhere in the middle of a structural spectrum, short of a merger, and yet clearly challenging the notion that silos remain the appropriate approach.

The starting point in understanding the "what and the why of a cluster" is found in s. 15 of the Act, which provides some clear direction as to the purpose of a cluster, and thus to the goals of the clustering initiative. It reads:

The Lieutenant Governor in Council may by regulation designate two or more adjudicative tribunals as a cluster if, in the opinion of the Lieutenant Governor in Council, the matters that the tribunals deal with are such that they can operate more effectively and efficiently as part of a cluster than alone.

Section 15 makes clear that the rationale for the government designating specific tribunals as a cluster lies in the nature of the matters falling under their collective jurisdictions. The object is to promote efficiency, and also the effectiveness in the way those specific subject matters can be dealt with in a cluster, compared to how they would be dealt with if each tribunal continued alone.

I would add that, though not expressly stated in the legislation, access to justice, and all the values inherent therein, must also be assumed to be a core goal in the development and evolution of any cluster.

So I think we may chart out the goals of Ontario's clustering model in the following way - with efficiency at the base, then access to justice and subject matter effectiveness on the next level, all supporting excellence throughout the cluster.

Before turning to the challenges and the opportunities, I would make two observations:

Some Challenges

The challenges we have confronted in putting into place the ELTO cluster can be usefully grouped into two categories:

I have no criticism of the circumstances which led to these challenges - indeed, I welcome the opportunity to confront them - but it is essential to realize that they are not only difficult issues in managing change, but as well they can quickly become the dominant elements in the everyday task of making a cluster work, and in achieving its worthy potential.

So let me canvass some of the challenges:

High Expectations for Administrative Justice Reform, Few Guideposts

As Ontario's first cluster of tribunals, ELTO is widely seen as a key element of Ontario's commitment to improve and modernize administrative justice overall. Yet, how clustering can assist in achieving these reform objectives for the particular clustered tribunals has been left largely to the cluster itself. Our work at ELTO is being done in the context of an approach to tribunal governance which is not only new in Ontario, but as well may be unique in the world. To make things even more interesting, the legal and policy framework for clustering itself is sparse. To a great extent ELTO is being asked to create a new governance structure without much guidance of any kind from any source. As I will touch on in a few moments, while this presents significant benefits and opportunities, it is nonetheless challenging, as internal and external stakeholders want to know what the future will bring, and how it will be brighter. "Que sera, sera" may play well on Broadway, but I have come to learn, not so much in the administrative justice sector.

Form Leading Function?

The Tribunals Act permits tribunals to be clustered where there is a discerned linkage among the matters over which each of them has jurisdiction. Nonetheless, there has been no rationalization of the more than 100 statutes and policies which define and shape the subject matter jurisdiction of ELTO's tribunals. This is an important distinction from tribunal reorganizations or amalgamations in other parts of the world, and will pose challenges as the message of convergence which may flow from clustering butts up against the legal reality of defined and different statutory mandates.

Similarly, the ELTO cluster was created, and is being built, without any underlying rationalization of the tribunals' constituent statutes. In the result, each clustered tribunal has a distinct statutory existence, a separate group of adjudicators appointed specifically to it, and often different powers. As well, stakeholders may continue to identify with a particular tribunal, rather than with ELTO.

Organizational Transformation and Shifting the Focus of Identity and Culture

Organizational transformation is inherently difficult. Staff and members of organizations, particularly those with a long history of providing important services to a broad stakeholder community, will legitimately feel pride in that history. This motivational attachment to history and legacy will be even stronger where, as here, the organizations fulfill significant public interest mandates.

This attachment will generally be expressed in terms of wanting to preserve the organization's "distinct identity" or "culture." Also, people will naturally develop a sense of familiarity and a level of comfort with "the way things are done."

In the same vein, external stakeholders and tribunal users will be wary of change. This may flow from specific commercial interests, how their interactions with the tribunal may be impacted, whether the quality of service may suffer, and overall, where the changes may lead.

All of these issues are legitimate expressions of concern by those who are both implicated in the change and will most certainly be affected by it. However, they are significant challenges when attempting to create a new culture, a common mission and set of values, obtain stakeholder buy in, and to develop and implement organizational structures which will help achieve the objectives and goals.

Fear of Loss of Specialization and Expertise

A significant concern that has been expressed is that clustering will lead to the dilution of a clustered tribunal's specialized expertise, for example through cross appointments. Similarly, there is often a fear that specialized adjudicative practices will change simply through the conformity that a larger structure often seeks.

Nonetheless, the cluster must give effect to the legislative intent behind it, by using the fact of being clustered to improve the effectiveness with which each constituent tribunal discharges its specific statutory mandate. This appears to call for efforts to enrich the jurisprudence of each tribunal by bringing a broader range of knowledge, experience and perspectives to bear on the matters that come before it.

While respecting the inherent legitimate tension, calls for "maintaining specialization and expertise" should be examined through a lens of whether such calls reflect, in some, and to some extent, a reluctance to step outside their current comfort spheres, to challenge their existing notions of law and policy, or to benefit from a potentially-enriched jurisprudence.

Conflicts

As we move to reap the benefits of convergence within a cluster where shared, and indeed overlapping, subject matter is common, we also have to confront the potential conflicts of interest which clustering may create. Many of the activities which build cluster coherence where subject matters connect - joint training, cluster-wide meetings, casual corridor conversations - or even just time spent together on improving core adjudication skills, can also give rise to at least the appearance of conflicts across a whole new array of private and professional interests throughout the cluster.

Some of the policy choices to address this may not be easy or popular, but to a considerable extent the positive potential of a clustering initiative can be clouded or worse, if conflicts of interest become connected with clustering, in the thinking of the public or the courts.

Lessons and Opportunities

Having reviewed some of the challenges that face a cluster, and that ELTO has faced, let me now reflect on some of the significant lessons and opportunities.

Creating a Common Culture and Identity

In the absence of a broad articulated vision for how a cluster will contribute to enhanced tribunal effectiveness and excellence, it is essential to move quickly to develop a cluster-specific vision. People need to know as soon as possible where the train is headed, both to allay their fears about other possible destinations, and to enlist their ideas and energies in getting there. If a cluster can be seen as a way to attain those shared goals, then uncertainty and resistance can give way to support, and indeed can fuel creativity and excitement.

One of the first exercises we engaged in at ELTO was to develop a new, ELTOwide statement of mandate, mission and core values, as required by the Tribunals Act. As we did so, it became apparent that the cluster provided the opportunity to have input from a broader range of experiences, perspectives and backgrounds. This not only provided an early success in developing a unified approach within ELTO, but because our vision, mandate and core values were developed through a pan-ELTO strategic planning process involving, ultimately, all staff and members, we were able to use the process to help break customary silos, as well as to benefit from the broadest base of experience and expertise.

We also developed new job descriptions for the Associate Chairs, Vice-chairs and Members. These are uniform across ELTO, and include important features such as the commitment of all members to the mission, mandate and core values, a Code of Conduct, decision review processes, collegiality, and other aspects of a modern tribunal committed to excellence and accessibility.

Also, and importantly, we have given the Associate Chairs ELTO-wide governance responsibilities rather than making them separate, delegated heads of individual tribunals.

The development of these governance and accountability documents and pan ELTO organizational structure allowed all members and staff to think about their roles and responsibilities on a broader level. The result is that, increasingly, people are no longer talking about maintaining a distinct identity and culture, but about a common culture and what each can bring to the table, as professionals in their respective fields of expertise.

Enriching Subject Area Capacity

Through strategic and selective cross-appointments, extensive cross-training and co-location, the experiential and knowledge bases of adjudicators can be broadened. This not only promotes the subject matter synergies that I referred to earlier, but recognizes the importance of common, high standards of accessible adjudicative practices across a cluster.

At the same time, it should provide increased job satisfaction and career mobility for adjudicators.

To this end, we have established a pan-ELTO professional development committee. That committee will not only develop a cross-tribunal curriculum, but will also coordinate any tribunal-specific training initiatives to link them to the broader agenda, and to exploit all opportunities to involve other ELTO tribunals in them.

At the same time, we are ensuring there is a like focus on specialized expertise amongst case management staff, while examining opportunities for efficiencies and synergies. This reflects the view that adjudicators and all others in the tribunal who process cases should be seen as a team who together serve the members of the public bringing disputes forward for resolution. Having staff with a sophisticated knowledge of the caselaw, stakeholders and procedures of each tribunal is essential to building and fostering that capacity, and the reciprocal respect and trust it calls for between adjudicators and staff.

Conclusion

Let me conclude by returning to two themes I began with - on the one hand, the clear, focused legislative direction about the goals of clustering - efficiency, access to justice and subject matter effectiveness, all supporting administrative justice excellence - and on the other, the uniqueness of Ontario's cluster concept, and the apparent lack of legislative guidance about the governance and organizational structure of a cluster.

While the latter theme may be seen as a weakness, in fact the lack of specific legislative guidance in relation to governance and organizational structure provides the opportunity to build and evolve a particular cluster around user needs and specific statutory mandates. In a similar way, the flexibility provided by the broad cluster framework permits the organization to evolve in a way which builds upon its collective strength and breadth of experience.

Ultimately a cluster is so Ontario - yours to discover




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