Court File and Parties

COURT FILE NO.: CV-21-00667838-00CP DATE: 2023-06-12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SCOTT McANSH, Plaintiff – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse, for the Plaintiff Sonal Gandhi and Heather Mackay, for the Defendant

HEARD: April 24, 2023

Endorsement

[1] Can an adjudicator with a fixed term appointment to an administrative tribunal sue the government for its failure to renew the appointment at the end of the term?

I. Motion to strike claim

[2] The Defendant moves under Rules 21.01(1)(b), 25.06(1)(8), 21.01(3)(d), and 25.11(b)-(c) of the Rules of Civil Procedure. It seeks to strike the Statement of Claim on the grounds that it does not plead a viable cause of action, cannot succeed, and is therefore frivolous, vexatious, and an abuse of process.

[3] The Plaintiff has brought a breach of contract claim in respect of the termination of his employment. The action is a proposed class proceeding. The Plaintiff and members of the putative class are former members of adjudicative tribunals in Ontario. The Plaintiff himself was a member of the Assessment Review Board (“ARB”).

[4] Each class member was appointed as an adjudicator by the Lieutenant Governor-in-Council on the advice of the Ontario Cabinet by an Order-in-Council (“OIC”). The duration of their fixed term appointments was set out in each OIC appointing them. The Plaintiff and, presumably, all of the putative class members, served out the term to which they were appointed. Neither the Plaintiff nor any of the putative class members were reappointed to a further term by the government. The Plaintiff contends, however, that embedded as part of the employment contract formed by the appointment was that the term would subsequently be renewed.

[5] It is the Defendant’s position that there can be no breach of employment contract since the Plaintiff and all potential class members are statutory office holders by appointment, not employees. Accordingly, Defendant’s counsel submit that even assuming the facts pleaded in the Statement of Claim are true, as a matter of law there is no obligation on government to reappoint a fixed-term office holder, and therefore there is no reasonable prospect of success for this claim: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45, at para 17.

II. The claim

[6] The Plaintiff was an ARB member from 2013 to 2019. He at first served as a part-time member, then as a full-time member, and finally as a vice-chair. His last OIC appointment expired on June 28, 2019; thereafter, he was not reappointed to any further term.

[7] On February 19, 2020, the Plaintiff served notice of an individual claim against the Crown pursuant to section 18 of the Crown Liability and Proceedings Act, 2019, SO 2019, c. 7. On August 30, 2021, he issued the present Statement of Claim as a proposed class action. The pleading defines the putative class as:

All full-time and part-time vice-chairs or members of adjudicative tribunals within Ontario, since June 2018 to the date of certification of this action who have been subjected to a breach of contract resulting from the refusal to reappoint members to adjudicative administrative tribunals, despite the recommendation of a tribunal chair.

[8] As indicated, the Plaintiff’s claim is brought on the basis of contract. He does not claim that his non-renewal as an ARB member in 2019 was discriminatory in the sense of a human rights violation, or that it was the result of corruption or any other public law offense to which government is bound. Rather, he pleads that the Defendant was in effect his employer and that, in that capacity, it breached its contractual promise of extended employment.

[9] In his Statement of Claim, the Plaintiff pleads that prior to the election of the then current Ontario government in June 2018, members or vice-chairs of adjudicative tribunals were “appointed at first instance to a two-year term” and “as long as [they] continued to meet performance standards” and “subject to a recommendation from the tribunal chair”, they could “rely on” or “expect” “being reappointed twice more”; “first for an additional three year term, and second for an additional five-year term, for a total of ten years”. The pleading goes on to assert that it is Plaintiff’s “understanding” that since June 2018, “there have been numerous occasions of individuals being refused their reappointments, despite chair recommendations to the contrary”.

[10] The pleading further alleges that an unnamed person promised the Plaintiff when he was appointed to the ARB that although the initial term was for a two-year appointment, he would subsequently receive two further reappointments of three years and five years each. The Plaintiff alleges that these subsequent appointments were guaranteed to him, conditional only on his receiving a positive recommendation by the Associate Chair of the ARB. He states that after serving the maximum of ten years on the ARB, he was advised that he would be able to count on that lengthy experience in support of receiving a new appointment to a different Ontario tribunal.

[11] The Statement of Claim goes on to state that when his term was up in 2019, the Plaintiff was not reappointed as a vice-chair or member of the ARB by Cabinet. The claim alleges that this was despite a positive recommendation from the Associate Chair. It also states that he was given no explanation for this “termination of his employment”. The Plaintiff pleads that, in his view, he had from the outset “accepted the offer of not only the two-year term, but of the ten-year fixed term of employment, conditional only on the performance of his duties as recommended by the Associate Chair.”

[12] The Statement of Claim states that neither the ATAGAA nor the OICs pursuant to which the Plaintiff and other proposed class members were appointed contain any termination provision. It is the Plaintiff’s position that, as a consequence, the government was not permitted to terminate the contracts without reason.

[13] The Plaintiff further contends that in his case, as well as that of all putative class members, the government of Ontario had political rather than contractually valid and good faith reasons for the terminations. The Statement of Claim also pleads that the failure of the current Ontario government to reappoint members that were appointed by the former Ontario government violates “the principle of independence of adjudicative tribunals”.

[14] As already indicated, it is the Defendant’s view that none of these claims and allegations can possibly succeed, and that as a matter of law the entire action will inevitably fail.

III. Statutory background

[15] Counsel for the Defendant has provided a thorough review of the statutory basis in accordance with the appointment of members of adjudicative tribunals in Ontario is governed. The appointment process takes place within a four-pronged legislative environment: the constituent statute of the tribunal at issue (for the Plaintiff, the Assessment Review Board Act, RSO 1990, c. A.32 (“ARB Act”), the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, SO 2009, c. 33, Sched. 5 (“ATAGAA”), Part 3 of the Agencies and Appointments Directive (the “Directive”) issued by the Management Board of Cabinet under subsections 3(1) and (3) of the Management Board of Cabinet Act, RSO 1990, c.M.1, and the OIC implementing the appointment.

[16] As Defendants’ counsel explain it, the constituent statute that creates the tribunal sets out its composition and creates the legal authority to appoint members. The ARB Act, under which the Plaintiff was appointed, provides:

The Board shall be composed of a chair and such number of vice-chairs and other members as the Lieutenant Governor in Council considers advisable, all of whom shall be appointed by the Lieutenant Governor in Council.

[17] In Ontario statutory parlance, the Lieutenant Governor in Council has been defined as “the Lieutenant Governor acting by and with the advice of the Executive Council of Ontario” (“Cabinet”): see Legislation Act, 2006, SO 2006, c. 21, Schedule F, s. 87 and Executive Council Act, RSO 1990, c. E. 25. The constituent statutes of each of Ontario’s active adjudicative tribunals provide for their members being appointed on the advice of Cabinet. These appointments are made by way of an OIC signed by the relevant Minister, the Chair of Cabinet, and the Lieutenant Governor.

[18] The ATAGAA came into force in 2009 with the self-stated purpose “to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations while remaining independent in their decision-making”. Among other things, it sets out additional requirements for the appointment of members to adjudicative tribunals.

[19] Subsections 14(1) and (2) of the ATAGAA require that members be selected through a competitive, merit-based, public process and establishes criteria to be applied in assessing candidates. It also provides, in subsection 14(4), that, “No person shall be appointed or reappointed to an adjudicative tribunal unless the chair of the tribunal, after being consulted as to his or her assessment of the person’s qualifications under (1) and (2), and, in the case of a reappointment, of the member’s performance of his or her duties on the tribunal, recommends that the person be appointed or reappointed.”

[20] The Chair’s recommendation is made to the Minister of whichever ministry oversees the given tribunal, who then decides whether to recommend the appointment to Cabinet. Accordingly, the AATAGAA makes a recommendation by the Chair of the tribunal a pre-condition of eligibility for a potential appointment or reappointment, but not a guarantee. The legal authority to appoint or reappoint members rests with Cabinet through the constituent statute of the tribunal in question.

[21] I note that the Statement of Claim references the Directive, which is a document by which the Management Board has established rules for all public appointments by the government of Ontario. These include, among other things, the pay scale and term limits applicable to various appointees.

[22] Some paragraphs in the Plaintiff’s pleading reference the 2006 version of the Directive, which was in existence prior to the coming into force of the AATAGAA, while other paragraphs in the pleading reference the remuneration figures set out in the 2019 version of the Directive. As Defendant’s counsel point out, it is the 2011 and 2015 versions of the Directive that are the most relevant here.

[23] The 2011 Directive was in force at the time the Plaintiff was first appointed to the ARB as a part-time member in 2013. The 2015 version that was in force when he was appointed as a full-time member in 2016 and as a vice-chair in 2017.

[24] The 2011 Directive sets out the following mandatory requirements for the appointment of members to adjudicative tribunals:

Term of Appointment

Subject to any provisions in the enabling legislation or as otherwise provided in this directive, the term of appointment must not exceed three years with further reappointments allowable, each not exceeding three years.

Regulatory and Adjudicative Agencies

In the case of appointment to a given position on a regulatory or adjudicative classified agency as set out in the Agency Establishment and Accountability Directive of Management Board of Cabinet and subject to the requirements of the classified agency’s enabling legislation or any other law:

The term of appointment is a maximum of ten years in total.

In the case of a person appointed as an Associate Chair, Vice-Chair or Member of a regulatory or adjudicative agency and, subject to the recommendation of the Executive Chair or Chair in exceptional circumstances:

There will be an initial appointment for a period of two years.

On the recommendation of the Executive Chair or Chair, the appointee is eligible for reappointment for a term of three years.

On the recommendation of the Executive Chair or Chair, the appointee is eligible for reappointment for a further term of five years.

The ultimate decision to re-appoint rests with the appointing authority.

Re-appointment to a further additional term beyond the maximum of ten years in total may be made only in exceptional circumstances in the public interest.

Appointees will be notified of the expiry date of their appointment at least four months prior to the expiry of their term of appointment.

[25] The 2015 Directive contained the following provisions regarding the appointment of tribunal members:

Term of Appointment – Adjudicative Tribunals and Regulatory Agencies

In the case of appointments to a given position on an adjudicative tribunal or regulatory agency and subject to the requirements of the provincial agency’s enabling legislation or other law the term of appointment is a maximum of ten years, in total.

In the case of a person appointed as an Associate Chair, Vice-Chair or Member of an adjudicative tribunal or regulatory agency and, subject to the recommendation of the Executive Chair or Chair in exceptional circumstances:

There will be an initial appointment for a period of two years;

On the recommendation of the Executive Chair or Chair, the appointee is eligible for reappointment for a term of three years; and

After completion of terms totalling five years, and on the recommendation of the Executive Chair or Chair, the appointee is eligible for re-appointment for a further term of five years.

The ultimate decision to re-appoint rests with the appointing authority. Re-appointment to a further additional term beyond the maximum of ten years in total, may only be made in exceptional circumstances in the public interest.

Appointees will be notified of the expiry date of their appointment at least four months prior to the expiry of their term of appointment.

There is no obligation on the government to re-appoint individuals for subsequent terms at the conclusion of any appointment.

IV. Appointment versus employment

[26] Defendant’s counsel has summarized the legal arguments comprising the government’s response to the claim as follows:

The Claim fails to disclose a reasonable cause of action because it is patently obvious on the face of the OICs appointing the Class Members and the legislative scheme governing appointments to adjudicative tribunals that:

a) An OIC appointment to an adjudicative tribunal is a fixed-term appointment, not an employment contract, and there can be no breach of contract claim arising from the completion of the term of the appointment;

b) The expiration of an OIC for a fixed-term appointment is not the termination of a contract. The fixed term appointment has simply ended;

c) There is no contractual or other right to reappointment. The decision to appoint and reappoint lies with Cabinet and that discretion cannot be fettered or delegated; and

d) An OIC appointee is not an employee of Ontario and therefore there can be no employment contract between Ontario and an OIC appointee.

[27] In Re Hewat and Ontario (1998), 37 OR (3d) 161, at para 11, the Ontario Court of Appeal stated that a government appointment pursuant to a statutory power to appoint is not a contract. The discretion to appoint is an exercise of prerogative by the Crown, specifically authorized by statute and limited only by the terms of the OIC under which the appointment is made. As the Court put it in Hewat, at para 13, quoting Preston v. British Columbia (1994), 116 DLR (4th) 258, at 261 (BCCA):

In keeping with the modern view of the prerogatives of the Crown as disclosed in the authorities, I believe the provisions of the Interpretation Act I have quoted authorized the Lieutenant-Governor in Council to commit the Crown to pay the plaintiff for the term of the appointment without impairing the Crown’s right to declare the office vacant at any time.

[28] Counsel for the Plaintiff relies on Wells v. Newfoundland, [1999] 3 SCR 199, where a member of the public utilities board serving as a “consumer representative” was found to have had a contractual relationship with the Crown, despite having been appointed under statutory authority. Context, however, is everything, and Justice Major set out the context giving rise to his conclusion very specifically, at para 22:

A common-sense view of what it means to work for the government suggests that these relationships have all the hallmarks of contract. There are negotiations leading to agreement and employment. This gives rise to enforceable obligations on both sides. The Crown is acting much as an ordinary citizen would, engaging in mutually beneficial commercial relations with individual and corporate actors.

[29] With all due respect to the Plaintiff’s view, the managerial position held by the plaintiff in Wells is noteworthy not for its similarity, but for its stark difference from that of an adjudicative tribunal member like the Plaintiff. As a manager at a public utilities regulator, the plaintiff in Wells was, like a direct government employee, a service provider to the public. He was able to take direction from government policy and negotiate individualized terms of his appointment. The Supreme Court’s “common sense” view was that he since he was retained like a contract employee and worked in the mode of management personnel in a government entity, his legal status should be considered to be akin to a contract employee.

[30] By contrast, in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3, the Supreme Court made a point of describing adjudicative members of administrative tribunals as independent of government in the same way as are judges. The ARB, of which the Plaintiff is a member, has characterized itself as “a quasi-judicial tribunal modeled on the common law”: Haque v. Municipal Property Assessment Corporation, Region 15, at para 10 (Ont ARB). Were it not for this independence of stature and function, there would be an inherent apprehension of bias every time a branch of government was a party to an adjudication presided over by an appointee in those tribunals.

[31] Lamer J. (as he then was) reasoned in Matsqui, at paras 66-79, that there is no institutional bias built into the system of administrative tribunals due to their mode of appointment. Their members are not beholden to government, and have independent decision-making authority, security of tenure for their appointed terms, and financial security of a type that renders then separate from government influence.

[32] Importantly, adjudicative tribunal members have the terms of their appointments fixed by legislation, and they are not able to bargain over their salaries, duration of their tenure, or other employment terms. Unlike a person in a Wells-like managerial or administrative position, a common-sense view of an adjudicator like the Plaintiff and putative class members is that they are not akin to government contract workers. Rather, they are entirely independent of government in both form and function.

[33] While the government is obliged to respect the fixed term of an appointment where that term is enshrined in the governing legislation and/or the OIC, it is neither obliged nor authorized to retain the appointee beyond that fixed term without a specific re-appointment. The terms of the OIC itself make that clear, as does the legislation under which the OIC is issued. A change in government cannot abrogate the term of the Plaintiff’s appointment, but neither does it extend the term beyond its fixed termination date as set out in the OIC: Re Dewar and Ontario (1996) 30 OR (3d) 334, at para 16 (Div Ct).

[34] Furthermore, the non-renewal of the Plaintiff’s appointment following the expiry of his term of appointment does not create an employment law or any other cause of action. “Failure to renew or extend is not the same as termination of a contract”: Lust v. Foundations for the Future Charter Academy, 2007 ABCA 165, at para 33. The suggestion of renewal or extension is not, and cannot be, “a promise that the term will be renewed or extended”: Pennock v. United Farmers of Alberta Co-Operative Ltd., 2008 ABCA 278, at para 8.”: Gibson v. Alberta, 2013 ABQB 695, at para 24. Here, as in Leerdam v. Stirling Douglas Group Inc., [1999] OJ No 914, at para 28 (SCJ), “[t]his was a contract for a defined term… mention of a mere possibility of an extension did not create an entitlement to that extension.”

[35] Two Saskatchewan cases serve to illustrate the point. In Baker v. Saskatchewan, 2012 SKQB 392, the plaintiff served as the province’s Chief Electoral Officer for a fixed term described in legislation as “twelve months after the day fixed for the return to the writ for the second general election”. At the term’s expiry, the plaintiff ceased holding office. The Court found that he was neither dismissed nor entitled to damages in lieu of notice, as his appointment was defined by statute rather than by an employment contract.

[36] Similarly, in Matkowski v. Saskatchewan, 2007 SKQB 46, the plaintiff was vice chair of a labour relations board, having been appointed to a four-year term. He was not reappointed at the end of the four years and sued the province for breach of contract. The Court reasoned that it was plain and obvious that a failure to reappoint did not amount to a breach of a fixed term appointment. In reasoning that is entirely apt here, the Court stated, at para 20:

The legislation restricts the appointment of a Vice Chairperson to a term of five years. No matter what methodology or terminology one uses, that term cannot be longer and no contractual term can be included so as to guarantee its extension. Any attempt would be in contravention of the statutory limitation and therefore unenforceable. The subject of reappointment is a separate and distinct subject which is not a part of the appointment. It cannot be included as a part of the appointment.

[37] Even if the Plaintiff was aware of the possibility of re-appointment after the expiry of his term, that awareness did not create an enforceable expectation. To reiterate, “ [t]he prospect of renewal or extension, even an expectation that this may occur, is not a promise” that can be relied upon or enforced : Gibson v. Alberta, 2013 ABQB 695, at para 24. Moreover, the fact that there was a history of successive renewals does not alter the situation for the Plaintiff, since in each case a re-appointment or renewal must be specifically affirmed by the appointing power: Matthewson v. Aiton Power Ltd. (1985), 11 OAC 76.

[38] Consequently, the prospect of reappointment, even a subjective expectation of one, is not a promise that the term will in fact be renewed. As a matter of logic, the decision not to reappoint the Plaintiff cannot be a breach of contract. Not only is a statutory appointment not governed by the law governing employment contracts; but a government decision not to reappoint someone to a new term is simply not the same as a decision to terminate from an existing fixed term.

[39] As observed by Defendant’s counsel, the Plaintiff’s argument requires the Court to find that while Cabinet has the legislative authority to appoint members to the ARB or other adjudicative tribunals, it is the Chair of the tribunal who, in recommending a reappointment, actually possesses the power of reappointment. However, this argument as put forward by the Plaintiff cannot be a legally correct interpretation of the statutory scheme creating the appointment power. The ARB Act, like the constituent statutes of all of Ontario’s adjudicative tribunals, provides that members are to be appointed by the Lieutenant Governor in Counsel – i.e. Cabinet. That power cannot be delegated to an administrative board Chair or other official.

[40] Plaintiff’s counsel emphasize that section 14 of ATAGAA provides that the Chair be consulted and make a recommendation about the member’s eligibility for reappointment, and that the Directive provides that “on the recommendation of the Executive Chair or Chair, the appointee is eligible for re-appointment”. It is expressly a power to recommend, not appoint. The 2019 Directive re-emphasizes this by specifically stating that the “ultimate decision to re-appoint rests with the appointing authority”. It is also noteworthy that the “power to appoint a person to a public office includes power to…reappoint…the person”: Legislation Act, 2006, SO 2006, s. 77.

[41] Interpreting a two-year fixed term with the prospect of reappointment as a ten-year contract, as contended by the Plaintiff, or as requiring the Lieutenant Governor in Council to act on the tribunal Chair’s recommendation of reappointment, would fetter the exercise of Cabinet discretion. Such delegation of authority, and fettering of Cabinet discretion, would be impermissible. As the court stated in Angevine v. Ontario, 2011 ONSC 4523, at para 14, quoting Paul Lordon, Crown Law (Markham: Butterworths, 1991), at 303:

There shall be no intent to contract and no contract shall exist where the action by Her Majesty would limit or fetter the exercise of discretionary power, whether derived from statute or from the prerogative vested in her to be exercised in the public interest.

[42] In Angevine, at para 8, the Court specifically asked itself whether a judicial appointment which, like the Plaintiff’s ARB appointment, is made at the discretion of Cabinet, can be made the subject matter of a contract when it is supposedly accompanied by a promise as the Plaintiff contends. The Court answered its own question in the negative:

In my view, it cannot. A judicial appointment is a discretionary, executive function of Cabinet, and of no one else. Such a contract would impair judicial independence, would fetter the government’s discretion to act in the best interests of the public, and would undermine public confidence in the judicial system. Because of these factors, a contract of this kind would be contrary to public policy and thus unenforceable, if not illegal. Agreements which have the potential to undermine the functioning or integrity of public institutions are recognized as a category of contract that runs contract to public policy. [citations omitted]

[43] In parallel with the issues in the case at bar, the Court in Angevine also found that no advance promise of reappointment, even by one Cabinet member, could form the basis of a reasonable expectation of reappointment. In Angevine, at para 19, it was reasoned that the plaintiff “knew, or ought to have known that the Attorney General could not bind Cabinet to accept his recommendation”. The same can be said of the Plaintiff here with respect to the recommendation of reappointment coming from the Chair of the ARB.

[44] This fettering of discretion therefore cannot be accomplished even if some person that is unnamed in the Statement of Claim purported to promise the Plaintiff that he would be reappointed at the end of the term specified in the OIC. The Plaintiff identifies himself in his pleading as a lawyer called to the bars of Ontario and Alberta; as a legally trained professional, he could not have had a reasonable expectation of reappointment based on such a patently unenforceable “promise”.

[45] I note that in the Statement of Claim, the Plaintiff alleges that the failure to reappoint him as “promised” undermines the rule of law. In fact, the opposite is true. In upholding the rule of law, a Court cannot contemplate enforcing what the Plaintiff describes – a surreptitious promise whispered in his ear by an unidentified official, contrary to the express terms of the OIC and governing legislation.

[46] The first principle of which the rule of law is composed is that of the supremacy of “regular law” over “arbitrary power”: A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn. (London: MacMillan and Co., 1959), at 202-203. A hallmark of what Dicey considered regular law would be the express and transparent terms of the OIC and all applicable legislation, setting out the fixed term that the Plaintiff served as ARB member: see Peter W. Hogg and Carla F. Zwibel, “The Rule of Law in the Supreme Court of Canada”, (2005) UTLJ 715.

[47] On the other hand, a hallmark of arbitrary power would be a public official making a secret promise of multiple reappointments contrary to the governing legislation and the OIC’s terms. Enforcing the Plaintiff’s story of some person making an unauthorized guarantee of reappointment would, in the most literal way, place the person – whoever it is – above the law, rather than ensuring that the person is subordinate to the law: Roncarelli v. Duplessis, [1959] SCR 121, at 184.

[48] Reappointment requires a positive recommendation from the Chair, support by the responsible Minister, and the exercise of discretion by Cabinet. That exercise is subject only to the usual constraints on public decisions in the form of human rights considerations, corruption, etc. An implied fixed term contract of 10 years, as argued by the Plaintiff, is not only contrary to the express words of the OIC appointing him, it would be an unenforceable restriction on Cabinet’s statutory authority. As Defendant’s counsel put it in her factum, the Chair cannot bind the Minister, the Minister cannot bind Cabinet, and the Cabinet at the time of appointment cannot bind future Cabinets.

[49] As a final note, Defendant points out that the Plaintiff and putative class members are not employees of the government or Crown, and have no right of action against Ontario as a matter of employment law. As previously discussed, adjudicators appointed to administrative tribunals are in form and function dissimilar to contractors and managers of government-affiliated boards, regulators, and corporations. They are also distinct from Crown employees.

[50] Defendants’ counsel observe that tribunal appointees are not appointed by the Public Service Commission to employment by the Crown as defined in Part III (“Employment by the Crown”) of the Public Service of Ontario Act, 2006, SO 2006, c. 35, Sched. A, s. 52 (“PSOA”). They may be considered “public servants” in the vernacular and for the purposes of section 2(2)5 of the PSOA, which renders them subject to the PSOA’s “Ethical Conduct” provisions. But as appointees to “commission public bodies”, they are legally distinguishable from public servants who are appointed under Part III (see sections 2(2)(1) and 52(1)).

[51] Accordingly, for example, tribunal appointees such as the Plaintiff are not subject to any collective agreement or grievance rights. All of the tribunals in issue in this action are “commission public bodies” within the meaning of the PSOA: see O. Reg. 146/10 (Public Bodies and Commission Public Bodies – Definitions), Section 4 Table 1. Likewise, section 3(5)8 of the Employment Standards Act, 2000, SO 2000, c. 41 excludes the application of statutory employment standards to “a member of a quasi-judicial tribunal”. Appointees such as the Plaintiff and putative class members are simply not employees for the purposes of employment law.

V. Adjudicative independence

[52] In his Statement of Claim, the Plaintiff pleads that the current Ontario government’s failure to reappoint OIC appointees appointed by the former Ontario government offends against the important “principle of independence of adjudicative tribunals”. It is unclear whether this alleged violation of adjudicative independence is meant to be a separate cause of action or is posited as a foundational legal principle that serves as a lens for analyzing the breach of contract claim. Either way, it is worth examining how the principle of independence fits the context at hand.

[53] The Plaintiff points out in his Statement of Claim that section 1 of the ATAGAA articulates one of its purposes as being to ensure that adjudicative tribunals can function “while remaining independent in their decision-making”. The Claim states, correctly, that the tribunals to which the putative class members belong are adjudicative bodies and that “the rule of law requires that they have a high degree of independence.”

[54] The Supreme Court of Canada has long held that the three pillars of judicial independence are security of tenure, financial independence, and administrative autonomy: Valente v. The Queen, [1985] 2 SCR 673, at paras 27-52. While these principles also apply to adjudicators in administrative tribunals, context dictates the varying degrees of their application.

[55] By way of illustration, counsel for the Defendant states that the Immigration Review Board or the Human Rights Tribunal, in adjudicating issues involving security of the person, require a high, court-like degree of independence. On the other hand, the ARB, in dealing with issues of property valuation and assessment, may be able to function with a somewhat lesser level of independence.

[56] The Supreme Court has itself adopted this view of administrative bodies as being varied in character. Given this variated field, a flexible analysis of institutional structure and procedures is called for: Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884, at paras 22-24.

[57] In terms of adjudicators’ security of tenure, fixed term appointments such as those at issue here, while different from the indefinite appointments of superior court judges or the ‘at pleasure’ appointments of certain other ministerial appointees, satisfy the principle of independence. As discussed above, independence is a principle that overarches all adjudicators, but different adjudicative bodies are suited to different modes of accomplishing independence.

[58] The Supreme Court of Canada addressed the issue directly in 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 SCR 919, at para 67: “ [I]ndependence… [does] not require that all administrative adjudicators, like judges of courts of law, hold office for life. Fixed-term appointments, which are common, are acceptable. ”

[59]

[60] It is uncontroversial that the Plaintiff and all putative class members had fixed term appointments. The Statement of Claim does not allege that the Plaintiff or the class he proposes to represent had their appointments terminated prior to the expiry of their stated terms. The issue for the putative class is reappointment, which is distinctly different than mid-term termination: see Hewat, at para 21.

[61] In claiming that he and the other proposed class members ought to have been reappointed by the Ontario government, it is self-evident that the Plaintiff’s and the adjudicators he proposes to represent had served out their term as defined in their respective OICs. Reappointment can only occur once the fixed term of the appointment has run its course and expired.

[62] Since the Supreme Court has ruled that fixed term appointments are acceptable, it goes without saying that there is no requirement of reappointment at the end of a fixed term. If reappointment were required rather than discretionary, the fixed term as legislated would not be fixed.

[63] The Plaintiff does not, and could not, claim that the unnamed person who supposedly guaranteed him reappointment also whispered the same thing in the ear of every appointee and prospective class member. That, apparently, is an individualized circumstance that is alleged to have happened only to him. As for the other putative class members, the Plaintiff’s complaint is that the decision not to reappoint them was driven by politics, and that importing political considerations into this decision showed a lack of good faith on the Ontario government’s part.

[64] However, to say that a discretionary decision by government was politically motivated is to say very little. Courts have confirmed that governments are by their nature political entities. Accordingly, a political motive underlying a statutorily authorized discretionary decision by government does not render that decision illegal or improper: Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council (2006), 82 OR (3d) 721, at paras 73-74 (Ont CA).

[65] There is nothing illegitimate in a new government making appointments to administrative agencies, boards, and tribunals which take into account its own policy choices and political inclinations. Government representatives such as the Cabinet members that make the appointments in issue are required to ensure that the appointments are made in compliance with applicable legislation; beyond that, however, there is nothing more to restrict the exercise of discretion.

[66] In fact, to strip all politics from the decision would render meaningless the statutory delegation of this discretion to political representatives. That would then produce the further result that “the will of the electors as expressed by those representatives may be thwarted”: Muscillo Transport Ltd v. Ontario (Licence Suspension Appeal Board), at para 50 (SCJ). In these circumstances, factoring political considerations into an appointment or reappointment decision is not prohibited and, indeed, is considered neither inappropriate nor unprincipled.

[67] In Hewat, at para 21, the Court of Appeal stated that “the image of independence [of tribunals] is undermined when government commitments to fixed-term appointments are breached.” The allegation here is not that the Plaintiff’s putative class members’ fixed terms were breached. They served out their fixed term, and their appointments therefore satisfied the “image of independence”.

[68] To reiterate, the Plaintiff’s claim is that he and other similarly situated adjudicators were not reappointed to subsequent terms after their fixed term’s expiration. In their reply factum, Defendant’s counsel respond to the entire independence argument by stating, emphatically, that “[t]here is no [emphasis in the original] authority for the proposition that reappointments are required to maintain the independence of adjudicative tribunals.” I agree. Not only is there no authority, there is no legally cognizable logic on which such a proposition could be premised.

VI. Disposition

[69] It is plain and obvious that the claim cannot succeed. The action is dismissed.

VII. Costs

[70] The parties may make written submissions on costs. I would ask Defendant’s counsel to email my assistant short submissions within two weeks of today, and for Plaintiffs ’ counsel to email my assistant equally short submissions within two weeks thereafter.

Date: June 12, 2023 Morgan J.