It’s time for the Ombudsman to investigate the WSIAT

It now takes over two years to get an appeal heard by the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The Ombudsman tells us, in his most recent annual report, that he’s considering a systemic investigation of the problem. There has already been some action behind the scenes:

Senior Ombudsman staff met with WSIAT’s chair, representatives of the Ministry of Labour, and other government representatives to remind them of the human impact of these delays and urge them to work together to find a solution. The Ombudsman is monitoring the situation and the Ministry’s response to it, to assess whether a systemic investigation is warranted.

In my view, a systemic investigation is warranted, and immediately too. As I’ll explain using the WSIAT’s own data, the current situation—in which the level of delay goes far beyond what is tolerable in any reasonable administrative justice system—is the result of a backlog of appeals that has been steadily increasing for the last four years and, despite the WSIAT’s rather extraordinary public pleas for help (in 2013, 2014 and 2015), there has been no effective response from the government.

Nor is there any reason to believe an effective response will be forthcoming: even as things currently stand, there is little prospect of improvement, and when the impact of the ten-year limit on appointments comes into effect next year, the situation will grow far, far worse.

The development and seriousness of the problem

The current delay in getting a hearing is the result of a backlog of active appeals that has more than doubled in the last four years.

The development of the backlog, and how difficult it will be to achieve even modest improvements, is shown in stark relief when the WSIAT’s quarterly “production” data is presented a line graph:

Graph

All three lines on the graph tell an important story.

The most obvious story is told by the red line, which plots the number of “active appeals” in the WSIAT’s inventory. Throughout the 2009 and 2010, the number of active cases was steady, at just under 4,000 cases—a number which, given that the system “is designed to hold approximately 4,000 active appeals,” means the WSIAT was operating at full capacity.

Starting in 2011, the number of active cases began increasing, quarter upon quarter, in a remarkably swift and steady fashion. By the end of the second quarter of 2015, the number of active appeals had increased to 9,314—i.e. significantly more than double the number the WSIAT has the capacity to deal with.

Notably, since the beginning of 2011, there is not a single quarter in which the backlog has declined, or even held steady. The situation has only ever deteriorated.

The story of why this is so is told by the blue and green lines, and the gap between them that emerges in 2011.

In 2009 and 2010, the number of incoming appeals, which are plotted on the blue line, held steady at around 1,000 per quarter. In 2011, however, incoming appeals began to increase. The number has fluctuated since then, reaching a peak of 1,566 in the second quarter of 2013 before declining, but they still remain significantly higher than their 2009/2010 level: in the second quarter of 2015, around 15% higher, at 1,150.

However, during the same period the number of appeals resolved through mediation or hearings did not increase; as shown by the green line, the number of appeals achieving “final disposition” has remained steady at its 2009/2010 level, approximately 1,000 per quarter. This is a good indication that the WSIAT was operating at full capacity in 2009 and 2010, and was not given any additional resources when the incoming appeals increased.

As a result, from 2011 onward, the gap between the number of appeals entering and exiting the system in each quarter was added to the accumulating backlog (the red line), resulting in an ever-growing delay for new appeals entering the system to make their way to a hearing. The queue for a hearing simply grew longer and longer.

There’s little prospect for improvement in the delay as things currently stand

At this point, for any real improvement to be made, the WSIAT’s hearing capacity has to do more than rise to match the level of incoming appeals, as was the case in 2009 and 2010.

Rather, for the delay to come down, there has to be a sustained period of time during which the WSIAT has the capacity to resolve significantly more appeals than it receives to allow it to address the accumulated backlog. In essence, to see the red line go down in the future, the blue and green lines have to trade places, and maintain a healthy gap between them for several years.

That is only going to happen if there is a substantial increase in the number of Vice-Chairs actively hearing appeals. But there’s little prospect that such an increase will occur, given the way that the government has dragged its feet in making appointments in the past two years.

On several occasions in the past two years, the Public Appointments Secretariat has advertised Vice-Chair positions, but recruitment has been painfully slow: since the beginning of 2013, only fourteen part-time, and no full-time appointments have been made.

Given the flat green line in the graph, it seems the work completed by these new appointees has been sufficient only to offset the natural attrition caused by other appointees leaving the adjudication roster.

The massive increase in delays that will result from the 10-year limit to appointments

Rather than see an improvement, the next three years may see a massive increase in the backlog at the WSIAT, and the resulting delay will be so long the tribunal will essentially be broken.

In 2006, the government implemented a ten-year limit on appointments to administrative tribunals, including the WSIAT. The limit on tenure is controversial for a number of reasons, which I’ll explore in a future blog post (but briefly, others argue that it will strip the Tribunal of its expertise, and that term limits call into question the independence of adjudicators).

For the purposes of this discussion, the noteworthy outcome of the ten-year limit is that between now and 2017 it will result in the termination of the appointments of at least seven full-time and fifteen part-time Vice-Chairs, who together were responsible for 55% (!!!) of all of the decisions issued by the WSIAT in 2014 (i.e. 1405 of the 2541 decisions).[1]  Scroll back up to the graph, and imagine what will happen to the red line when the green line dips significantly…

The government has been advised repeatedly about the problems that will be caused by the ten-year limit—indeed, lobbying efforts that I am aware of have been going on for at least two years. But still the government has not announced it will give the WSIAT any relief.

Given how close we are now to the edge of the cliff, the government’s refusal to budge on the ten-year limit is a scandal. We can only hope the Ombudsman will investigate, and his activities will create the political pressure necessary to force the government to see sense and save the WSIAT from falling into the abyss.

© Antony Singleton

This blog contains general information and should not be relied on as legal advice in an individual case. If you need advice about a WSIB claim or appeal, please visit the website of my law office, asingletonlaw.ca, and book a consultation.

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[1] You can visit the Public Appointments Secretariat’s list of WSIAT OIC appointees to figure out for yourself which Vice-Chairs are affected, but by my calculation, they are Julia Noble, Bernard Kalvin, Sophie Martel, Rosemarie McCutcheon, Sean Ryan, Martha Keil, Mel Crystal, Sara Sutherland, Bob Gale, Susan Peckover, Jay Josefo, Victor Marafioti, Rob Nairn, John Moore, Colin MacAdam, Bruce Alexander, John Lang, Eleanor Smith, Colleen Dempsey, Tom Mitchinson, Jasbir Parmar and Marilyn Smith.

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