Workplace tribunals to merge in Ontario

Workplace tribunals, including the Ontario Labour Relations Board, to fold into a “mega-tribunal”.

Ontario’s workplace tribunals, including those that hear pay equity and human rights complaints, could be folded into one super tribunal under the labour ministry’s latest proposal.

The ministry says the new tribunal will be more efficient and provide clients with a simpler and cheaper adjudicative process.

But not all stakeholders agree. Labour critics say the plan peels away workers’ access to justice, while some of the plan’s supporters say it doesn’t go far enough to rid backlogs and improve direct access for certain workplace complaints.

The unified workplace tribunal would incorporate the Ontario Labour Relations Board (OLRB), the Workplace Safety and Insurance Appeals Tribunal, the Pay Equity Hearings Tribunal, the Board of Inquiry under the Human Rights Code and the College Relations Commission. Also slated to be folded into the new tribunal is the Education Relations Commission, the panel involved in determining when a teachers’ strike has put a school year in danger.

The new body would have the power to dismiss any “vexatious and frivolous applications,” the proposal states.

Labour Minister Chris Stockwell introduced the province’s white paper, Looking Forward: A New Tribunal for Ontario’s Workplaces, late last month and consultations are to continue until next month.

“Our proposals would provide a fair and impartial system with quick resolution of workplace-related disputes,” said Stockwell.

One of the goals of the unified tribunal is to have “single window access to a full range of workplace-related, adjudicative services.” For example, under the current system, a sexual harassment complaint could be filed in a number of places. With a restructured system, the complaint would be filed with one tribunal and different arguments could be made under the various applicable statutes.

“Having this one place where you can go is really making the system more accessible,” said ministry spokesperson Kelly Shute.

But critics say the restructuring will erode workers’ accessibility to justice by eliminating the very systems built to provide avenues for protection and compensation from specific workplace violations. They blast the pro-employer Conservative government for handing over what they call a “big gift to employers.”

“These structures have evolved and now the minister wants to take that all way. Workers go there to seek justice. At some point if workers lose confidence in the adjudicative process then they might have no choice but to take action at work,” said Wayne Samuelson, president of the Ontario Federation of Labour.

Under the plan, the 150 mostly part-time adjudicators who now preside over the tribunals would be replaced by 35 to 50 full-time provincially appointed adjudicators, with a salary of about $150,000 a year and a 10-year term.

At issue is whether the 50 full-time adjudicators who will staff the new tribunal can carry the same workload as the current 34 full-time and some 120 part-time adjudicators do.

Critics also worry the new panel of adjudicators will lack the expertise needed to hear the various types of claims. Panels that hear specific cases, like the construction panel under the current OLRB, will be replaced by a single adjudicator for most cases under the new plan.

“The reason we have people with expertise is because of the nature of the decisions they make. People spend years and years learning all of the relevant legislation and regulations. These people have specialized understanding of certain issues,” said Samuelson, adding that the recommendation reflects the minister’s lack of understanding of how the administrative panels work. “He is so out of touch with what they really do.”

With fewer adjudicators on staff, and given the labour ministry’s track record with “hand-picked” appointments, Samuelson said the government can’t be trusted to ensure the process is quicker and, above all, fair and impartial.

That record includes condemnation by Ontario’s highest court which found that the province interfered with the arbitration process by appointing retired judges who are “not impartial or independent” to act as arbitrators in labour complaints involving hospital workers. In the Ontario Court of Appeal judgment, the justices found that the government tried to “seize control of the bargaining process.” The province has taken the case to the Supreme Court of Canada.

“The ministry’s has its own agenda. Clearly they have shown that they aren’t impartial when they make an appointment. The opportunity for patronage is amazing if you are a Tory hack out there,” said Samuelson.

The plan’s supporters say while the new tribunal will improve efficiency at the highest levels of the adjudicative process, it doesn’t go far enough to improve direct access for certain types of workplace complaints. Human rights cases, for example, will still have to be filed with the Human Rights Commission and only go forward to the board of inquiry once they have passed through the commission’s system.

Only two per cent of human rights complaints ever get that far, said Mark Hart, a human rights and employment lawyer of the Toronto-based firm of Sanson and Hart. Human rights, pay equity and workplace safety and insurance claims will still have to be filed in separate commissions, said Hart.

“The idea and intent of the initiative is a good one; the problem with it is that what it proposes so far doesn’t really solve the problem. This initiative is small potatoes.”

A plan that would include direct access for human rights complaints would not mean the end of the commission, but rather, said Hart, the commission would handle those larger, broad issues surrounding systemic discrimination and human rights violations.

“There is support for this in the legal community but the government hasn’t quite got it right yet.”

Hart acknowledges the obstacles faced by the government, including its reputation and record for “hand-picking.” He said the appointment process should be open and involve consultation from all stakeholders, including labour.

“There is a broad consensus that the extent to which people will support this has much to do with the quality of those selected to be on this tribunal,” said Hart.

As for appointments and improving direct access for all types of workplace complaints, Shute says the ministry is open to suggestions.

“At this point nothing is carved in stone. We are still consulting and we want to hear suggestions.”

The ministry is also proposing to axe the Office of the Employer Adviser, the Office of the Worker Adviser, the Pay Equity Office and review the Grievance Settlement Board’s Crown Agency Status.

SIDEBAR
Proposed changes to Ontario’s workplace tribunals and agencies
The proposed unified workplace tribunal will include:

•the Ontario Labour Relations Board;

•the Workplace Safety and Insurance Appeals Tribunal;

•the Pay Equity Hearings Tribunal;

•the Education Relations Commission;

•the College Relations Commission; and

•the Board of Inquiry under the Human Rights Code.

The ministry is also reviewing the following agencies:

•the Office of the Employer Adviser;

•the Office of the Worker Adviser;

•the Pay Equity Office; and

•the Grievance Settlement Board’s Crown Agency Status.

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