Backlogged tribunals creating ‘distress’ for Ontarians waiting months or years to be heard

One of our Employment lawyers, Amy Brubacher, spoke to CBC about the backlog and issues at the Human Rights Tribunal. These backlogs are impeding access to justice. Read the article below.

Backlogged tribunals creating ‘distress’ for Ontarians waiting months or years to be heard

Tribunals Ontario says it is making progress in addressing delays

Muriel Draaisma · CBC News · 

Shawn Hsiao, a rooming house tenant in Toronto, is pictured here in a blue jacket and toque, with a roommate, a neighbour and friends in October 2020. The group was demanding his landlord stop harassing him. (Submitted by Shawn Hsiao)

Long backlogs at four tribunals mean Ontarians are waiting months or even years to have their cases heard, and critics, lawyers and advocates are calling on the government to fix what they say is a broken system.

Thousands of cases are being held up at the Landlord and Tenant Board (LTB), the Human Rights Tribunal of Ontario (HRTO), the Social Benefits Tribunal (SBT) and the Automobile Accident Benefits Service (AABS), a division of the Licence Appeal Tribunal, according to opposition MPPs and Tribunal Watch Ontario, a non-partisan public interest organization. Lawyers say the system isn’t working for some human rights cases.

Politicians, lawyers and the public interest group say the backlogs are preventing timely resolutions to legal disputes and impeding access to justice.

The LTB resolves disputes between landlords and tenants. The HRTO resolves claims of discrimination and harassment under the Human Rights Code. The SBT hears appeals from people who have been refused social assistance or who disagree with decisions affecting their eligibility, social assistance amount or benefits. The AABS deals with claims involving car accident victims and their insurance companies.

“We are seeing many people struggling as they are waiting for their hearing date, and of course, while they’re waiting, that means everything is in limbo,” said New Democratic Party MPP Kristyn Wong-Tam.

“It benefits no one when the tribunal system doesn’t work.”

Wong-Tam said she and her colleagues at Queen’s Park are hearing complaints from constituents about the delays and are urging Premier Doug Ford’s government to address the backlogs before an impending Ontario Ombudsman’s report on the LTB is released.

The ombudsman received 1,110 complaints about Tribunals Ontario in 2021-2022, an increase from 935 the previous year, according to its last annual report. The majority, 964 complaints, were about the LTB.

Current backlog numbers not available

Tribunals Ontario, the umbrella organization of 13 adjudicative tribunals that administer justice, declined to provide current backlog numbers, saying those figures are not yet available. It said the number of cases at the human rights tribunal that are 18 months or older is about 5,200 as of Dec. 31, 2022. It also said the SBT has reduced its “active caseload” from 11,000 to fewer than 6,700 since May 2021.

While it did not provide figures for the LTB or AABS, Tribunals Ontario said its annual report shows the LTB had 32,800 “active cases at year end,” while the AABS had 16,204 “active appeals at fiscal year end.”

The organization said it is working to reduce the backlogs.

“Tribunals Ontario has taken steps to address delays as a result of the COVID-19 pandemic, and we are making significant progress,” spokesperson Janet Deline said in an email to CBC Toronto.

“The tribunals and boards experiencing service delays have implemented a number of strategies to improve services, including by increasing the number of adjudicators so as to reach full complement and enhancing the efficiency of caseload management.”

Last April, the province committed $4.5 million over three years to help reduce LTB backlogs. Then, in November, it said it would spend an additional $1.4 million to help resolve those cases faster. In 2020, the tribunal system adopted a digital-first strategy, which means hearings are conducted virtually except when people ask for accommodation.

Deline said the measures are easing the backlogs. But Wong-Tam said more funding is needed and the digital-first strategy has disadvantaged low-income Ontarians.

“Every single applicant who’s waiting in line is now waiting in line more than just one month or two months. They are now waiting in line for months on end, and in some cases, for years,” Wong-Tam said.

‘People cannot afford to wait this long’

Shawn Hsiao, a tenant in Toronto, said he had to wait over a year for an LTB hearing.

Hsiao moved into a rooming house in October 2017. Four months later, his landlord asked the tenants to pay for hydro, contrary to their lease. The tenants refused to pay. Then the landlord began harassing him, Hsiao alleged. He filed an application with the LTB in October 2019.

The landlord filed her own application to have Hsiao exempted from the Residential Tenancies Act. The LTB heard the case in May 2021.

Hsiao won, with the adjudicator ruling that the act applies. The landlord appealed the matter but lost the following May.

Despite that ruling, Hsiao said the LTB backlogs, plus his landlord’s alleged actions, left him without protection.

“I think no one can live in a harassment situation for such a long time,” he said. “People cannot afford to wait this long.”

‘We definitely see distress,’ lawyer says

Amy Brubacher, a staff lawyer at Don Valley Community Legal Services, said problems are especially acute at the human rights tribunal, with cases that may have merit being dismissed before they are heard.

She said she has a number of cases filed four years ago that are still waiting for a hearing.

“We’re dealing with issues of discrimination, harassment, racism, discrimination on the basis of disability, sexual harassment. Having these cases lingering and waiting for years, there’s no finality, there’s no justice,” she said.

“We definitely see distress as a result of that.”

According to Tribunal Watch Ontario, the backlogs began growing in 2018 after the Ford government came to power.

Kathy Laird, a member of Tribunal Watch Ontario and former counsel to the chair of the human rights tribunal, said the government declined to reappoint or retain many existing adjudicators when their terms came up for renewal and then failed to make new appointments.

CBC Toronto requested comment from Ontario’s attorney general’s office on the appointment of adjudicators, but did not receive a response.

When the government did make new appointments, those who filled the roles were not qualified in the area of laws in which they were required to adjudicate, Laird said.

“When there’s a change in government, Liberal to Conservative, Conservative to Liberal, NDP to Liberal, we don’t get rid of all of our judges. We don’t fire the chief justice. Of course, we keep them in place,” Laird said.

“We have to have those experienced judges to remain in place to bring their expertise to future cases.”

Recommendations from the group to fix the problems include:

  • Create a group of specialized adjudicators to clear the backlogs.
  • Make sure that everyone appointed to a tribunal is qualified.
  • Reinstate in-person hearings.
  • Create an adjudicative tribunal justice council that would oversee the system and appointments to depoliticize the process.
  • Restore “stakeholder advisory committees” that were disbanded in 2018 and allow them to provide “meaningful input” into the system.
  • Review the HRTO to see if it is complying with its statutory obligations.