Lessons from ELTO: The Potential of Ontario’s Clustering Model to Advance Administrative Justice
Michael Gottheil and Doug Ewart 1
March 8, 2011
This paper offers some initial observations on Ontario’s recent move to ‘cluster’ some of its adjudicative tribunals.
As developed in Ontario, clustering brings a specific group of tribunals together within a single organization under the
leadership of one Executive Chair. The clustered tribunals, as well as the cluster itself, are brought within the
responsibility of the Ministry of the Attorney General 2 . It was developed as a structural response to concerns that
stand-alone tribunals, while capable of promoting and preserving specialization, and indeed often created for that very
reason, may suffer from a number of disadvantages.
These disadvantages are said to include the potential for capture by the host ministry and often particular stakeholders;
the inefficient use of infrastructure resources; a potential to become insular and self-referential; and a potential to lose
the capacity to incorporate in their work evolutions in public policies, societal values, tribunal design, demographics and
technical or legal approaches. As well, siloed tribunals may offer limited caseload variety or professional development for
adjudicators, and, where the caseload is small, may simply lack the resources to support an effective and modern administrative
justice organization despite sincere efforts to achieve that goal 3 .
1 Michael Gottheil was the first Executive Chair of Environment and Land Tribunals Ontario. In March, 2011, he was appointed
as the Executive Chair of Ontario’s social justice tribunal cluster. He was Chair of the Human Rights Tribunal of Ontario from 2005
to 2009, following some 20 years in the private practice of administrative, human rights and labour law. At the time this article was
written, Doug Ewart was the Senior Advisor, Administrative Justice Reform Project, Environment and Land Tribunals Ontario. He has over
30 years experience in justice policy development at senior levels in both the Ontario and Canadian governments in fields including
civil, family, administrative, criminal, aboriginal and human rights law, and equality rights issues. This paper is an updated extract
from a paper entitled “Improving Access to Justice through International Dialogue: Lessons for and from Ontario’s Cluster Approach to
Tribunal Efficiency and Effectiveness”, which was presented by Michael Gottheil to the 2010 Australasian Conference of Planning and
Environmental Courts and Tribunals, and is posted on ELTO’s website. The views in this paper are those of the authors and do not
represent the views of the Government of Ontario.
2 When not clustered, Ontario tribunals tend to report to the Minister responsible for the policy area in which they work. See in this regard n. 22, infra.
3 These small and often isolated tribunals are frequently referred to as orphans.
Structural responses to these issues have come relatively recently, and have ranged from full amalgamation (merger/unification),
to amalgamation modified by the creation of distinct lists or groups of adjudicators for defined subject areas, to creating umbrella
councils or secretariats which support and sometimes coordinate certain aspects of the work of otherwise distinct tribunals.
Clustering is situated toward the middle of this spectrum. For our purposes, it can be defined 4 as a subset of a jurisdiction’s
tribunals brought together in a single organization or agency under one organizational leader, with each tribunal maintaining its
own statutory jurisdiction 5 and its distinct membership. 6 While, as discussed below, a cluster promotes an integrated approach
to the work done within it, the model adopted in Ontario permits subject matter expertise to be maintained 7 , and indeed
strengthened, and recognizes that some constituent tribunals may retain unique stakeholder and user relationships. As it has
been developed so far in Ontario, clustering has the potential to answer several of the concerns which have been raised in academic
and law reform discussions 8 of tribunal mergers and amalgamations, and may offer a way to facilitate, in practical and tangible ways,
the pre-eminent goal of access to justice in the broadest sense of the term 9 .
4 While the term is not widely used, it has been used in this context with a different meaning than the one employed here – see, for example,
the New Zealand Law Commission, which uses ‘clustering’ to describe bringing tribunals together in a much more unified way (“fewer and larger” tribunals
“integrated within a single entity”) than the above definition suggests: Determining Justice for All, A Vision for New Zealand’s Courts and Tribunals ,
March 2004, at page 288).
5 In comparing the effectiveness of groupings of tribunals, it is important to be aware of whether those groupings have been established in a
context where statutory reforms amalgamated or merged the jurisdictions of the constituent tribunals or, more fundamentally, sought to rationalize laws
and policies governing the issues which come before the grouped tribunals. In establishing Ontario’s first clusters, neither was done, and clustering
will play out in the absence of any other reforms related to the jurisdiction of the clustered tribunals or the legislative and policy context within
which they work in their often overlapping areas of operation.
6 In the cluster context, cross-appointments do not diminish the reality that each member of a tribunal, including a member cross-appointed from
another tribunal, has been specifically appointed to it, and has jurisdiction only over matters before the specific tribunal(s) to which they have been
appointed. Pursuant to s. 14 of the Adjudicative Tribunals Accountability, Governance and Accountability Act, 2009, S.O. 2009, Ch. 33, Sch. 5 (the Tribunals Act),
persons appointed to adjudicative tribunals must meet any specific statutory qualifications for the appointment and must also have “experience, knowledge
or training in the subject matter and legal issues dealt with by the tribunal” to which they are to be appointed, unless these requirements are waived
pursuant to a regulation made under ss. 23(e) of the Act . With the exception of its provisions regarding clustering, the Act has not yet been proclaimed.
7 This is a key distinction between Ontario’s clustering model and other reform models such as mergers. Maintaining subject matter expertise not only
reflects the reason why most tribunals were created and serves to meet the needs of a tribunal’s users and those affected by its decisions, but as well directly
advances access to justice (see the paper referred to in n. 1, supra, at pages 16-17). It also indirectly supports access to justice by providing a principled
basis for deference by reviewing courts, which enhances the finality of a tribunal’s decisions and limits the advantage that those with the resources to
re-litigate issues would otherwise have.
8 The authors are grateful to Jamie Baxter for his insightful research and analysis of the relationship between Ontario’s clustering model and approaches
other jurisdictions have taken or contemplated to bringing tribunals together. Mr. Baxter, a 2010 graduate of the University of Toronto Law School, worked as
a summer student in 2010 at ELTO under the general supervision of Dean Lorne Sossin of the Osgoode Hall Law School of York University.
9 See in this regard the paper cited in n. 1, supra, at pages 13-21, and note 7, supra .
1. The Legislative Foundation for Clustering: A Focus on Linkages and Synergies
The Administrative Tribunals Accountability, Governance and Accountability Act, 2009 10 (the Tribunals Act) provides a broad framework
for the further evolution of adjudicative 11 tribunals in Ontario. It establishes requirements to prepare and publish documents outlining a
number of core structural elements of tribunals in their roles as public bodies with accountability to the public, including through the
government, and in their roles as adjudicative bodies within the justice system where distinct governance issues arise from the need for
accountability to co-exist with independence from outside influences, including from the government. These documents include a tribunal’s
mission, mandate, qualifications for members, service standards, complaints policies, ethics plans, and other similar matters12. The Act goes
on to reinforce the independence of the adjudicative tribunals by requiring that appointments of members of an adjudicative tribunal be made
on the recommendation of its chair following a merit-based competition13 employing statutorily-defined competencies.
The Tribunals Act also gives the government the power to designate two or more tribunals “as a cluster” if the matters they deal with are
such that “they can operate more effectively and efficiently as part of a cluster than alone”14.
The particular way in which the provision governing clustering was drafted appears to send some important messages as to the legislative intention
behind this concept. Pursuant to the Act, in order to cluster two or more tribunals the government is to have looked at the matters15 they deal with
and to have determined that there is something about those matters that can be better dealt with in a clustered structure than if the tribunals continued
to operate alone. In the Ontario approach to clustering, the distinguishing rationale for a cluster accordingly lies in the capacity to achieve both
improved efficiency in dealing with, and better substantive resolutions of, the matters dealt with by the cluster’s constituent tribunals.
10 Supra, n. 6
11 In Ontario, the term adjudicative tribunal means a tribunal prescribed as such under the Tribunals Act. There is no legislated definition of the term.
See O. Reg. 126/10 for the current list of adjudicative tribunals.
12 The Tribunals Act , supra, n. 6, sections 3-8.
13 Ibid. , section 14. Note that the government may make exceptions to this: see ss. 23(e).
14 Ibid. , section 15. This provision has been proclaimed in force.
15 In the ELTO context, the matters around which the cluster was built can be seen to refer to the subjects which come before the clustered tribunals,
as all deal with cases involving or affecting land use and valuation. In other contexts the statutory term ‘matters’ may be read to include the nature of
the issues which come before the clustered tribunals, even where those issues do not relate to a shared subject so clearly delineating as land. In neither
instance is it required that all adjudicative tribunals whose effectiveness in the matters before them could be improved by membership in a specific cluster
be included, nor need the effectiveness of each included tribunal be improved in identical ways. Clustering is not best seen as a tightly defined structural
end in itself, but rather as a flexible structural means to help clustered tribunals provide better public services.
The legislative focus on grouping tribunals by reference to the ability to improve their effectiveness in relation to the matters they deal with can be
contrasted to approaches which would group tribunals by reference to other considerations such as:
- the kinds of adjudicative models they employ (for example, the “full” adversarial approach compared to an active, inquiring adjudicative model); or
- the nature of the users of the services of the grouped tribunals (for example, tribunals where most users are well-resourced, represented institutional
parties compared to tribunals where most users are self represented individuals with limited resources; or where the users are homeowners in relation to matters
such as property tax and renovation issues; or businesses in relation to matters such as licensing and regulatory compliance).
In opting to base clustering in part on improving the substantive effectiveness of a cluster’s tribunals, the Legislature has not limited its rationale for
clustering to improvements in efficiency, which we might equate with co-location and administrative integration, but equally has included improved effectiveness
in resolving the various matters within the jurisdiction of the clustered tribunals. There are two key concepts here: i) effectiveness, not just efficiency;
and ii) effectiveness in relation to substance, not just process. The Ontario approach to clustering does not just seek to improve outputs, but instead is also
intended to improve outcomes for those who use, or are affected by, tribunal services16 .
16 Assessing outcomes rather than outputs moves the focus from the pace and volume of resolutions to the results achieved by those resolutions. The kinds
of results to which clustering may be expected to lead include decisions which show an appreciation of, and reflect, legal and contextual considerations which
cross tribunal boundaries and which contribute to a body of jurisprudence which provides coherent and meaningful guidance to those affected by tribunal decisions.
Once the government uses its clustering power, the tribunals are designated “as a cluster” 17. This gives tangibility to the concept of a cluster – a cluster
is more than a label. Once constituted, a cluster becomes an entity recognized by statute with its own identity and purpose. This is reinforced when the Act goes
on to say that the accountability and governance documents which all adjudicative tribunals in Ontario are required to have, and which themselves become defining
organizational characteristics, must, in the case of a cluster, be jointly developed and entered into18. As noted above, these documents include, among others,
a mission statement and a description of the skills and attributes required of tribunal members. The fact that the tribunals in a cluster must jointly develop a
mission, and a joint statement of the members’ attributes and qualifications, indicates again that a cluster is to have an existence and purpose beyond being an
administrative home for a collection of tribunals.
Once a cluster is created, the government may appoint an Executive Chair to lead and manage all the tribunals in the cluster. That Executive Chair then,
by statute, has all of the powers and duties assigned to the chair of each of the constituent tribunals by any statute, regulation, order-in-council or directive 19.
This choice to vest all of the previous chairs’ powers and duties in just one chair signals an intention to go beyond a coordinating chair model to create one in
which the Executive Chair leads the cluster as a whole to drive improvements in effectiveness as well as to generate efficiencies.
The Act then permits, but does not require, the government to appoint an Associate Chair for each clustered tribunal. If it does so, then one or more of the Associate
Chairs may also be appointed as Alternate Executive Chairs of the cluster as a whole. This leadership structure further evinces a desire to have a cluster function as an
inter-connected entity, and not just as a coordinated group of separately-led adjudicative bodies.
For all of these reasons, it seems clear that the Tribunals Act demonstrates an intention by the Legislature to develop clusters of tribunals for purposes that go
beyond administrative efficiencies and coordination. Such goals could be achieved by appointing outside efficiency experts and by encouraging the tribunals to work
together. Making the potential to improve the substantive outcomes (the subject matter effectiveness) achieved by the clustered tribunals a threshold condition for
clustering, requiring joint accountability and governance documents, and appointing a single Executive Chair for all of the clustered tribunals, sends a different message.
It suggests a need to interpret and apply a cluster mandate in a way which will share experiences, enhance expertise, develop linkages and encourage synergies across
the matters dealt with by a cluster, subject only to respecting the unchanged statutory mandates of the constituent tribunals.
17 See O. Reg. 126/10 which formally constitutes the ELTO cluster. See also ss. 16(3) of the Tribunals Act, supra n. 6 which provides for the appointment of alternate chairs “of the cluster”.
18 Ibid , section 18.
19 Ibid. , section 17. Note that the government has the power to exempt by regulation some of the duties which might otherwise flow to an Executive Chair under this provision: see ss. 23(f).
2. Clustering to Date
Environment and Land Tribunals Ontario (ELTO) has provided the first20 opportunity to determine whether clustered tribunals can be more efficient than the same tribunals
operating alone and whether the matters they deal with can be addressed more effectively, and access to justice and the quality of their services can be significantly improved,
when they operate as part of a cluster. It is widely seen as a key indicator of Ontario’s commitment to improve and modernize administrative justice overall.
The ELTO cluster started informally, with the five tribunals which constitute ELTO21 being brought to one location and placed under one ministry22, and with the administrative
infrastructure for all being amalgamated23. This process was accelerated with the appointment in November, 2009 of an Executive Chair to lead all of the clustered tribunals,
and with the introduction and passage that Fall of the Tribunals Act 24 to create the legal structure for clustering.
20 In August of 2010 the Ontario government indicated that it was proceeding with a second cluster comprised of “social justice” tribunals, and initiated a competition
for its Executive Chair. That cluster was formally created by a January 25, 2011 amendment to O. Reg. 126/10, and its Executive Chair (Michael Gottheil) has since been named by the Cabinet.
21 The tribunals which comprise Environment and Land Tribunals Ontario are:
The Assessment Review Board , which hears property assessment appeals to ensure that properties are assessed and classified in accordance with the provisions of the Assessment Act. The Board also operates under a variety of other legislation and hears appeals on property tax matters.
The Board of Negotiation , which conducts voluntary mediation in the event of a dispute over the value of land expropriated by a public authority. If no settlement is reached, the matter may be appealed to the Ontario Municipal Board.
The Conservation Review Board , which conducts proceedings where there are disputes concerning properties that may demonstrate cultural heritage value or interest, or disputes surrounding archaeological licensing. After determining a matter, the Board then makes recommendations to the final decision-making authority in the particular case, either a local municipal council or the Minister of Culture.
The Environmental Review Tribunal , which hears applications and appeals under numerous environmental and planning statutes including the Environmental Bill of Rights, 1993, the Environmental Protection Act, the Ontario Water Resources Act and the Safe Drinking Water Act, 2002. The Tribunal also functions as the Niagara Escarpment Hearing Office to hear development permit appeals and Niagara Escarpment Plan amendment applications for this protected World Biosphere Reserve, and serves as the Office of Consolidated Hearings to hear applications for joint hearings where separate hearings before more than one tribunal would otherwise be required.
The Ontario Municipal Board , which hears applications and appeals in relation to a range of municipal planning, financial and land matters including official plans, zoning by-laws, subdivision plans, consents and minor variances, land compensation, development charges, electoral ward boundaries, municipal finance, aggregate resources and other issues assigned to the Board by numerous Ontario statutes.
22 The two ELTO tribunals which were not already under the jurisdiction of the Ministry of the Attorney General were moved to that Ministry. This was seen as reflecting the role administrative tribunals play in the broader justice system. It was also seen as an indication that tribunals are justice agencies, independent from line ministries, as opposed to bodies delivering government programs.
23 The establishment of this cluster followed an extensive consultation process and analysis undertaken in 2005-2006 by the then Chair of the Ontario Labour Relations Board, Kevin Whitaker (now the Hon. Mr. Justice Whitaker of the Superior Court of Justice). See the Interim Report of the Agency Cluster Facilitator for the Municipal, Environment and Land Planning Tribunals, January 31, 2007 and the Final Report, August 22, 2007.
24 Supra , n. 6.
(a) Synopsis of Key Features and Benefits
While the legislative record is very limited, it may be safe to assume that the Tribunals Act reflects the tribunal modernization goals that have been underway in Ontario for
some time without a generic statutory underpinning. These goals have been articulated in academic writing and symposiums25, in the work of organizations such as the Society of Ontario
Adjudicators and Regulators (SOAR), in government directives related to tribunal governance and in some earlier legislation26. They have included accessibility, fairness,
professionalization, proportionality, timely resolution of disputes, principled decision making supported by clear, concise and intelligible reasons, mechanisms to enhance a
tribunal’s jurisprudential coherence and, overall, being user centred. These goals and their related core values can be understood to be part of broader classes of objectives
such as access to justice, accountability, and independence.
The structural model being given effect through Ontario’s first clusters, while unique and still in its early days, and while creating some particular challenges, has a number of features
which may advance these goals. Key features of the model, seen through the lens of ELTO’s early days, include:
- Each clustered tribunal is retaining its distinct legal jurisdiction, even though the subjects within a tribunal’s jurisdiction (for example, a wetland) may also, for other purposes,
fall within the jurisdiction of another ELTO tribunal. As a corollary, each tribunal enters the cluster with a distinct set of stakeholders, as well as, sometimes, stakeholders whose
interests cross tribunal boundaries.
- Each clustered tribunal will continue to have a complement of adjudicators appointed specifically to it, with exclusive jurisdiction over the matters coming before that tribunal.
This both provides a basis for initial expertise27 in the matters before a tribunal and increases the likelihood that there will be a sufficient diet of that work to maintain that expertise among its members.
- 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 substantive outcomes reached by each tribunal by bringing a broader range of knowledge, experience and perspectives to bear on the matters that come before it, and by
fostering an enhanced ability to see, understand and respond appropriately to areas of connectedness among the subject matters, contexts and practical impacts of decisions.
- The leadership structure of the tribunal need not be established by strict adherence to the previous governance hierarchies of the constituent tribunals. As noted previously, the Act contemplates
an Executive Chair with all of the powers and duties of the previous chair of each tribunal. Beyond that, while the Act permits the appointment of an Associate Chair for each tribunal there is nothing
to prevent having no Associate Chairs, or having Associate Chairs who are responsible for more than one tribunal, or, after their appointment to a specific tribunal, assigning responsibilities to one
or more of them on a non-tribunal-specific basis such as, for example, by cluster function such as mediation services, professional development, adjudication practices, expedited matters, and so on.
More generally, even where Associate Chairs are appointed on a tribunal-specific basis, the job descriptions for those Associates can make it clear that their key responsibilities are to the governance
and development of the cluster as a whole28 and that the Executive Chair retains the leadership of the constituent tribunals as well as the cluster as a whole29.
Permitting the Associate Chairs to be appointed as Alternate Executive Chairs of the cluster further focuses their attention on and reinforces their corporate roles.
25 See for example the papers collected as of 2007 at http://www.law-lib.utoronto.ca/Conferences/Administrative_Justice_Bibliography/ajb.htm#1.
26 For example, the legal obligation to appoint members to a tribunal only after a competitive process based on statutorily-mandated criteria related to the
tribunal’s work and procedures was first seen in Ontario in the 2006 amendments to the Ontario Human Rights Code (see section 32(3) of the Human Rights Code, R.S.O.
1990, Ch. H.19, as amended). Other provisions of that legislation created a legal framework for a tribunal-led, activist approach to the conduct of proceedings and
the resolution of claims, demonstrating confidence in the maturity of tribunals as independent actors within the broader justice system.
27 See n. 6, supra.
28 Pursuant to the current ELTO position description, an Associate Chair “is a member of ELTO’s senior management team and assists in building and leading the
ELTO cluster of tribunals” in addition to providing jurisprudential leadership for and day-to-day oversight [but not being the delegated head] of one or more of
ELTO’s constituent tribunals.
29 The ELTO position description for Associate Chairs also states that an Associate regularly briefs the Executive Chair and provides recommendations on cases
and issues arising in a tribunal which are of major significance, have a high public impact, a significant impact on procedural or substantive jurisprudence or the
resources required from a tribunal or the parties, affect the jurisdiction of the tribunal or raise issues of cluster-wide relevance, including the assignment of
particular adjudicative expertise or the utilization of cross-appointees, or involve complaints or requests for reconsideration or review.
- While the back office functions of all five ELTO tribunals have been amalgamated into a single administrative service for matters like finance and communications,
case processing staff are nonetheless being assigned to units organized around subject area specialization. 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 relating to particular subject matters, whether those matters fall within the jurisdiction of one
or more than one of the clustered tribunals, is essential to building and fostering that capacity, and the reciprocal respect and trust it calls for between adjudicators
- The co-location of the five tribunals on four floors of an office building in central Toronto has permitted ELTO to redesign the shared premises so that adjudicators
from all ELTO tribunals have their offices on the same floor, the Executive Chair, Associate Chairs and CEO are housed together, tribunal counsel are co-located, and so on.
This provides the office geography for a unified management approach across ELTO and sends a message about the ongoing reality of the new structure, while at the same time
encouraging informal corridor consultations among adjudicators across traditional tribunal boundaries.
The cluster offers the potential to use selective and strategic cross-appointments, extensive cross-training30 as well as co-location to broaden the experiential and knowledge
bases of adjudicators, and enhance their individual and collective expertise31. This not only promotes the subject matter synergies which exist in the ELTO cluster, but as well
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.
30 For example, ELTO’s professional development plan will feature ELTO-wide programs offered to members of all tribunals. Although, as appropriate, tribunal-specific programs will also be offered,
they will be priorized, developed and coordinated through the pan-ELTO professional development committee, which will also identify opportunities for broader participation in such programs by members of other ELTO tribunals.
31 In a cluster, expertise can be seen as including the experience and knowledge of all adjudicators in the cluster, just as within a single tribunal expertise can (and should) be seen as being that
of the tribunal institutionally rather than only that of any given tribunal member who presides over a case. Indeed, the doctrine of deference to tribunal expertise makes little sense unless that expertise
is seen as inhering in the tribunal’s historical and collective experience in the field rather than in each appointee to it, however new to the tribunal or whatever their background.
- The reach of a single leadership team has been extended, and with it the ability to modernize the operations of a number of tribunals (increased professional development, effective use of decision-quality mechanisms32,
a focus on providing users with a consistent and positive experience of justice, more active adjudication, etc.) in an expedited and consistent way.
- The cluster creates opportunities to develop processes tailored to users whose interests may cross tribunal boundaries, for example, homeowners seeking a minor variance (dealt with by the OMB) or
appealing a property assessment (dealt with by the ARB). As is the case in amalgamations, a cluster may be able to develop similar (and perhaps linked) case management and adjudicative processes and
procedures for classes of cases which fall within the jurisdiction of more than one of the clustered tribunals, but particularly affect the same specific parts of the province’s population.
- The expertise and experience of a broad pool of adjudicators and staff can be drawn on to develop improved approaches to common adjudicative issues such as the use of expert evidence or managing complex cases.
- The quality of decisions can be improved because of the multi-tribunal pool of expertise.
- The cluster can better ensure diversity in its membership, with the consequential benefit that the cluster as a whole is more reflective of the face and perspectives of the entire province, and can draw on the enriched capacity that diversity offers.
- It is easier to maintain a pool of adjudicators competent to conduct proceedings in more than one language.
- The geographic reach of each of the tribunals can be extended where members of other clustered tribunals reside across the province and are qualified for cross-appointment within the cluster.
- There is an enhanced ability to rely upon full-time members through cross-appointments.
32 These mechanisms directly support the above rationale for the deference which is shown to expert tribunals.
(b) Some Current Challenges
The above matters speak to the potential benefits of Ontario’s approach to clustering tribunals, with specific reference
to the early ELTO experience. However, compelling as the theory of clustering may be, and despite the encouragement offered by some
of the related experience elsewhere, there are a myriad of small and large management and leadership challenges involved in building
a strong, functioning cluster which is respected both internally and externally, and can achieve the goals of efficiency, access to
justice and subject matter effectiveness. Highlights among them, having regard to the early experience at ELTO, are the following:
- Responding to the high expectations that many have for administrative justice reform initiatives in the absence of a comprehensive study of, or legislative framework or vision for,
clustering. In this environment, people are left wondering what the purpose of clustering is, whether it is a destination or a way-station on a path to other reforms and how it can improve access
to justice and service quality. Indeed some may ask why any changes or “improvements” to a particular tribunal, or the administrative justice sector as a whole, are necessary. This may lead internal
and external stakeholders to wonder if they should invest time and energy in making the cluster work, and indeed whether they want to be appointed to or work within it. While the cluster can
articulate a vision and role for itself to address these issues, and indeed can use the absence of much legislative direction to do so in a way that is directly and meaningfully responsive to its
particular circumstances, the reality remains that uncertainty about the policy objectives and a long-term vision for the role clustering can play in improving access to justice and enhancing the
service tribunals provide remains a significant challenge.
- Confronting the conundrum that staff members, adjudicators, stakeholders and others affected will want to understand and sometimes will seek a level of certainty about where the change is leading, and
yet at the same time will, entirely legitimately, want to take part in defining the direction of the change. The uncertainty inherent in an inclusive process may prove as troubling for some as it proves empowering for others.
- Maintaining subject matter expertise, and public confidence in that expertise, while also building within the cluster a more fulsome, comprehensive and integrated understanding of the work done
across it, and using that understanding to improve how each tribunal serves the public. The challenge results from the reality that initiatives to help each adjudicator bring a broader range of knowledge,
experience and perspectives to bear on the matters that come before them, to see and respond appropriately to areas of subject matter connectedness (cross-fertilization33/maximizing subject matter synergies)
or to better appreciate the contexts from which disputes arise and the impacts decisions will have, may in the minds of some raise fears of loss of specialization and responsiveness to the issues and communities
dealt with by a particular tribunal34.
33 See, for example, the observation of Justice Brian J. Preston that “[a] one-stop shop also facilitates better quality and innovative decision-making in both substance and procedure by cross-fertilization
between different classes of jurisdiction”, in “Operating an Environmental Court: the Experience of the Land and Environmental Court of New South Wales”, a paper delivered as the Environmental Commission of Trinidad
and Tobago Inaugural Distinguished Lecture on Environmental Law, (at page 26 of the text): also published in (2008) 25 EPLJ 385.
34 In this connection it is useful to recall that one of the defining features of Ontario’s clustering model is that the clustered tribunals remain specialized and expert in their fields (see n. 6, supra , and
accompanying text) and are not merged. Although, as a result, the impact of the cluster should be seen as enriching that expertise, not diluting it, communications challenges will remain until clustering is further evolved and better understood.
- Addressing the increased potential for conflict of interest issues across a cluster. 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 give rise to at least the appearance of conflicts across a whole
new array of private and professional interests which would not have arisen within a tribunal-specific context. This may pose particular issues for part time members with active business practices
in areas now dealt with by the cluster35 but which previously had fallen outside the zone of risk created by their work as a public servant in a single tribunal.
- Building an integrated leadership cadre and culture for the cluster as a whole given the varying cultures and ways of doing business which may have developed in the clustered
tribunals over time. Similarly, ensuring jurisprudential leadership and focused day-to-day oversight for each tribunal without Balkanizing them.
- For the Executive Chair and Associate Chairs, balancing the time required to lead the overall strategic development and management of a cluster, and to modernize each of its tribunals, with the time required to oversee their
day-to-day operations, meet the ever-present service expectations of their current users, and, ideally, also with the time required to take on key adjudicative assignments.
- Dealing effectively with the inherently difficult matter of organizational transformation. 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 especially where, as at ELTO, the organizations fulfill significant public interest mandates and provide important, high profile services to the
public. While this deep knowledge base and professionalism can be a great source of strength for the cluster, history and legacy can also lead to an unwillingness to change and share. This can pose significant
challenges when attempting to create a new culture and to operationalize a common mission and set of values. Similarly, fostering buy in from external stakeholders throughout the development and implementation of
organizational processes and structures to give effect to the new reality of the cluster will be challenging.
- Preserving innovative adjudicative techniques which may be challenged if a tribunal using them is clustered with a number of more traditional tribunals, given the inherent (and some might say,
inexorable) propensity to standardization found in large organizations.
- Creating integrative office environments without losing the benefits of close collaboration around particular subject areas.
- Building and maintaining support for the clustering agenda within the tribunals, and among tribunal users and other stakeholders, given the long time period over which change will occur, especially
as the message of convergence flowing from clustering buts up against the continuing reality that the statutory mandates of the clustered tribunals, and the legal and policy frameworks governing the issues
before them, remain unreformed36.
35 See Grand River Conservation Authority v Her Majesty the Queen in Right of Ontario (Ministry of Transportation), Ontario Municipal Board, unreported, April 23, 2010.
36 See n. 5, above.
3. Clustering’s Potential to Advance Tribunal Modernization and Access to Justice
Assuming that these current challenges can be met, there is reason to believe that tribunal modernization can be effectively advanced through the Ontario approach to clustering tribunals. It shares much
of that potential with other approaches to structural reform, but with the key difference that each of the clusters of tribunals is relatively small, and has been brought together because of various linkages
in the matters its constituent tribunals deal with. These factors provide a more manageable scale for the leadership of the cluster, as well as offering some initial connections among the tribunals which can
be used as openings to bring tribunal members and stakeholders together on some common ground and understandings.
As was outlined in the conference presentation from which this paper is drawn37, clustering may similarly create a climate in which tribunals, with limited or no changes to funding or mandate38, may more
easily bring forward a significant number of access to justice initiatives. These range from issues of supporting and enabling effective self-representation through to matters involving how expert evidence
is received and used, the potential for tribunals to play a more active role in shaping and managing proceedings, and the increased accessibility which can flow from the engagement of non-traditional stakeholders.
And, of course, improved adjudicative skills, including those enhanced though an increased understanding of the connections among issues coming to the cluster, or of the varying contexts from which they arise,
will themselves advance access to substantive justice.
In addition, based on the initial experience in Ontario, and having regard to larger scale restructuring initiatives elsewhere, there are a number of reasons why Ontario’s clustering model has the potential to
overcome the inertia – and sometimes the resistance – which otherwise can frustrate efforts to modernize tribunals and improve access to justice in the administrative justice sector.
First, at least in the early days, the creation of a new structure creates an expectation of change. While the prospect of change may not always be welcomed, both internally and externally amongst those who
have found ways to make the system work to advance their personal, commercial or policy interests, clustering, like amalgamation, is generally part of an effort to improve the quality of administrative justice.
Hence, change which occurs in this context may more readily be seen as a positive initiative.
Second, creating a new structure designed to improve overall effectiveness and efficiency will necessarily lead to a need to reflect upon existing tribunal process, procedures and policies, and thus provide
an understandable context for proposed changes.
Third, there is an economy of scale in bringing an access to justice initiative to a group of tribunals. Much of the policy development, consultation, rules drafting and communications planning can be unified,
especially where tribunals with related subject matter jurisdictions are involved. Similarly, only one leadership team is needed to advance and manage the change agenda. And, for both of these reasons, conflicting
approaches and messaging in rolling out access initiatives for a number of tribunals can be avoided, creating a climate in which the changes can be considered on their merits, without small differences creating undue distractions 39.
Fourth, a clustered or amalgamated group of tribunals is likely to contain a larger pool of experienced and creative adjudicators and staff to draw upon for ideas as modernization and access initiatives are
being developed. As well, exercises such as developing a joint statement of mandate, mission and core values for the cluster can lead members and staff to think about their roles and responsibilities in a broader
context. In the result, each individual’s appreciation of an issue like access to justice and the role they can play in it is deepened. Overall, the design of implementing initiatives will inevitably be improved
when expertise from numerous fields and backgrounds is brought to bear on that work.
Fifth, as access initiatives are rolled out, the potential to develop a critical mass of those who know how to implement them effectively is much greater than in a single tribunal. Further efficiencies, and greater
consistency, can also flow when a larger cadre of adjudicators and staff can be trained together on new approaches, ideas and understandings, and can support each other in using them.
37 See the 11 examples noted at pages 13-21 of that paper, supra n. 1.
38 The earlier paper expressly excluded consideration of matters which required new government initiatives or funding such as the expansion of legal aid or the provision of intervener funding. Instead, it focussed
on initiatives which would largely be within the control of tribunals themselves.
39 While the economies of scale outlined above argue for large scale amalgamations, there can also be similar benefits in smaller scale clusters, provided there is some inherent and widely-accepted logic to the grouping.
Where that is the case, having regard to the subject matters dealt with by the grouped tribunals, and most particularly to their amenability to the same access initiatives (and especially with regard to the style and pace of
adjudication), support for change may be perhaps be generated even more easily in a cluster model than in a wholesale amalgamation of a jurisdiction’s tribunals. It nonetheless remains the case that proceeding by way of
clustering assumes that a jurisdiction has a substantial number of senior tribunal chairs who can lead these kinds of initiatives.
Overall, building a modern adjudicative tribunal requires attention to a host of considerations: the purposes behind the establishment of the tribunal; the nature of the disputes and parties that may come before the
tribunal; the potential for tribunal structures, practices and procedures to advance or impede access; and the recruitment, training and retention of highly qualified staff and adjudicators.
And, it requires attention to the need to ensure that in all they do tribunals are user-centred, and maintain their focus on core values of integrity, transparency, accessibility and fairness. Tribunal structures
and operations must reflect the reality that tribunals play a critical role within the justice system and, in many ways, are the real face of justice for a community.
Despite the challenges which clustering presents, some of which are inherent in any organizational change, it seems clear that when properly conceived, implemented and resourced, clustering can advance these
values while providing efficiencies in infrastructure usage. When it draws upon the broad base of experience, expertise and perspectives which members and staff of the constituent tribunals can bring to the table, it
also offers the potential to be built in a way which increases the effectiveness with which each clustered tribunal applies expertise to the subject matters before it and which increases access to justice.