Mopping up the floor while the tap’s still running

WHY URGENT REFORMS NEEDED AT ONTARIO LICENSE APPEAL TRIBUNAL

It’s common sense you can’t fix a problem unless you find the root cause. As the old Dutch saying goes, no sense mopping up if you ignore the source of the leak.

So, it seems, with the License Appeal Tribunal (LAT), the appeal court for Tarion warranty (ONHWPA) decisions. Consumers have pointed out problems with the LAT for over a decade, but no meaningful action has been taken to correct the dysfunction so many have experienced.

No one in authority in the legal establishment seems to be actually listening to the end-users of this flawed system. It’s not “dissatisfaction with the outcome”, as is often cited which ails consumers, it’s dissatisfaction with the process, the highly legalistic courtroom forum, and the imbalances inherent in a large corporation (Tarion) fighting the little guy.

Tarion, a government monopoly,  is always represented by experienced lawyers at the LAT;  consumers have to self-represent due to the high cost of experienced counsel. Under these circumstances, it’s no surprise consumers lose about 90% of the time. (See 10-year analysis of the LAT by Canadians for Properly Built Homes at http://www.canadiansforproperlybuilthomes.com)

A case in point is the following. In 2014-15, a young well-educated couple, Jeffrey Ferland and Aleksandra Ferenc, filed a public complaint with SLASTO, the LAT’s oversight body, about bullying by the adjudicator, and missing recordings of the bullying complaint itself. After months of delay, and partly due to MPP Hillier raising a question about this in the Legislature,  SLASTO finally launched an “investigation”.  A respected retired judge and a lawyer were hired as “investigators”. I suggested in writing to SLASTO that they include a member of the public on the investigative team to create a public perception of balance in the handling of the complaint. No response.

I attended the Ferland/Ferenc hearing as an observer for 12 of the total 26 days in 2014-15. I had no skin in the game, no financial interest in their investment, and I’m not an employee of the LAT, SLASTO or Tarion.

I was shocked, on several occasions, by the conduct of the adjudicator toward the applicants. I made hand-written notes on each day I attended the hearing. I also made an appeal to the head of SLASTO, Ms. Lamoureux, together with the applicants, in the winter of 2015 urging her to investigate the adjudicator’s conduct, and find out how the how recordings of the bullying complaint itself could have gone missing.  No response.

Investigations into professional misconduct by the members of the same profession rarely seem to get at the whole truth. This was the case with the CBC’s internal investigation of Jian Ghomeshi’s conduct in the workplace, and more recently a major Toronto newspaper’s response to allegations of a “toxic” work environment. Employees often require anonymity,  since they have too much to lose by speaking out against their co-workers or managers. Whistle-blowers are rare because they are often not protected by their employers for speaking the truth about the behaviour of management or co-workers.

That brings me to some of the major weaknesses I see with the SLASTO public complaint investigation (link below) published August 3, 2016:

1. Of the 18 interviewees, 11 of them seem to have been employees of either the LAT, SLASTO, or Tarion. Many of these employees were not present in the hearing room, so could not have seen first-hand for any extended period of time the conduct of the adjudicator. Only 3 were members of the public; I was one. None of the interviewees are named. This is not a balanced or impartial feedback on what went on during the hearing. Several of the LAT employees interviewed were not in the hearing room, or were not there for enough days to witness patterns in the adjudicator’s behavior. The adjudicator was on her best behaviour when management’s eyes were upon her, in my observation.
2. I was not questioned about my affidavit I signed (03/15) after witnessing the Nov. 27th 2014 “missing recording” incident. I find it odd that investigators didn’t ask me about it,  a sworn statement regarding one of the specific incidents under their investigation. My observation differs from what the adjudicator and respondent said happened. I was not asked for my recollection of what happened on that day. I gave the investigators a copy of my affidavit and some of my hand-written notes made during the  hearing. The adjudicator claims she simply “forgot” to record the bullying allegation on Nov. 27th, 2014. The investigators believed her version of events: “human error”, no one to blame. On pg. 21 the investigators wrote: “Without a recording, we will never know for certain what Mr.Ferland said during the portion of the hearing when the recording device was not running.” No one asked me what was said and what I noted down during this exchange. Seems odd for an investigation of this important point.
3. No explanation was given in the report why the COO of the LAT, Mr.McDermott abruptly left the LAT around the time the public investigation was announced. He had previously told the applicants the LAT wouldn’t investigate the bullying allegations until after the hearing was over. I believe the LAT management failed to take meaningful, and timely action, perhaps to protect their own reputation and head off potential negative public feedback.
4. No explanation seems to be given for why the adjudicator herself resigned from the case before it was completed.
5.  In late 2015, the applicants asked the adjudicator, on the record during the hearing, and later they asked LAT staff, for someone in management to be present in the hearing room because they felt bullied. On the record, the Adjudicator denied this request, citing cost concerns. LAT management also denied this request. This was a clear cry for help by the applicants, and it was brushed aside. The adjudicator then ruled in March and April 2015 that her conduct did not constitute bullying. The adjudicator may have had good reason to keep management’s eyes away from the hearing room, and management may have had good reason to turn a deaf ear to complaints of bias and bullying against an adjudicator.
6.  The recommendations in this report seem weak.  The investigators advise (pg. 2), more “skills-based train for adjudicators and staff“, more “templates, (…) checklists, and other materials for adjudicators to make sure they are “well-prepared“; and more “practical, accessible materials for self-represented parties..” .

More training of LAT staff and adjudicators is a vague and long-term goal. What about the self-represented litigants who come to the LAT today? Are they expected to experience the LAT a work-in-progress, and continue to suffer the financial and emotional consequences? Even the investigators themselves stated on pg. 25 of their report: “We were surprised by the degree of formality and rigidity we observed in the process to resolve homeowner appeals, especially since the tribunal system was set up to avoid costly adversarial and complex court procedures.”

We can all agree on that. But this is not new information, and it’s hard to see why it took an 8-month investigation to find out a lot of what SLASTO already knows.

The LAT is a highly legalistic and complex forum; it’s not a problem-solving body. It costs taxpayers and new home buyers dearly, but seems a good source of revenue for prominent Bay Street law firms who charge an hourly rate higher than what most adjudicators earn per day.

Even the Assistant Deputy Minister of the “working-with-Tarion” Ministry of Consumer Services stated in Oct. 2014, in a letter to Tarion’s CEO, that the LAT processes were too complex and adversarial, and not solving problems for consumers.

Another red flag, ignored.

The Attorney(s)-General of Ontario, both the former A-G Ms.Meilleur and the current A-G Mr. Naqvi are silent on the issue of reforms to the LAT. Both are also members of the legal profession.

One of the suggestions the report makes is to use a round table for hearings to “create a more informal and less intimidating atmosphere.” In the category of band-aid solutions, this takes the cake. This completely ignores the long-lasting financial and emotional toll the LAT takes on consumers.

The behavior I witnessed from the adjudicator in the Ferland/Ferenc hearing was inappropriate for an officer of the court, or for any member of the legal profession. It doesn’t matter how long the hearing went on, or how frustrating lawyers and adjudicators find it to deal with self-represented consumers. The adjudicator’s conduct in the Ferland/Ferenc case was shocking and intimidating to me as a member of the public. I believe it clearly violated SLASTO’s own published code of conduct.

The investigation side-steps the real problem: the courtroom should not be used for ONHWPA appeals where applicants are self-represented. Mediation could be a better option, but only with fair representation for each side. The LAT is an uneven playing field. The rules are made by the big battalions who have a map of the battlefield and the most powerful weapons and tactics.  The principles of natural justice, and even human decency, how we expect to deal with each other as human beings, were not observed by those in authority in the Ferland/Ferenc hearing.

The the SLASTO-commissioned investigation did not properly balance input from the consumer point of view with that of SLASTO/LAT employees. Nor did it recognize the fundamental absurdity of the little guy up against a large powerful corporation in the courtroom.

The problems are not hard to see if one looks at what happened outside the lens of the legal establishment. Meaningful solutions can only be found by getting at the root cause of the problem: access to a courtroom is not access to justice, it’s access to a courtroom.

The consumer’s voice must be heard and respected in much-needed, urgent reforms to the Tribunal system. But that’s a step apparently too big for the legal establishment to make.

SLASTO and the LAT management, as well as the Attorney-General himself, continue to turn a blind eye to consumer cries for help, mopping up the floor while the tap’s still running.

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Thomson-Cohl investigation_Final Report_Aug 3, 2016