Tuesday, 10 September 2013

Sossin and Baxter on Tribunal Clusters

Lorne Sossin and Jamie Baxter have posted on SSRN their paper on Ontario's approach to reforming administrative justice:
Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between agencies with diverse norms and mandates. The provincial government of Ontario in Canada has recently enacted a novel strategy called tribunal clustering to confront these challenges. This paper explores the structure and rationales behind Ontario’s new tribunal clusters and compares these with reform models in Australia and the United Kingdom. The authors argue that tribunal clusters offer a flexible approach to institutional change that is responsive to the needs of users and can ultimately improve access and the quality of decision making. In their view, clusters represent a promising first step – but not a final destination – to achieve a more effective and coherent system of administrative justice.
The clustering approach (bunching similar tribunals together) is to be distinguished from the amalgamation approach (a general appellate tribunal). Sossin and Baxter's take is nuanced, but they helpfully outline some of the possible benefits of clustering:
 First, bigger may not always be better. Clusters allow tribunals, government and independent reviewers and academics alike to put that proposition to the test. For example, large-scale amalgamations may trade off flexibility and adaptability within the super-tribunal in return for greater conformity across the organization. Second, clusters allow for learning across and between tribunals. Tribunals previously in relationships with separate ministries can, in one cluster, highlight the best practices and procedures from each in order to give the cluster a distinct identity. Third, the structure of tribunal clusters may accurately reflects how users actually experience justice problems in some circumstances. National civil legal needs surveys conducted in several countries over the past decade have confirmed that recognizable patterns emerge in the ways that individuals experience multiple issues.56 The surveys reveal that specific problems tend to cluster together – meaning that, for example, an individual who experiences a housing problem would be more likely to also encounter challenges related disability benefits. Tribunals will adjudicate many of these clustered subject matters. These survey data suggest that tribunal systems might be more effective at addressing administrative justice problems if they are structured to reflect the underlying needs of their users. Tribunal clusters offer one means of moving toward this outcome.
You can download it here.

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