Qualifications for Appointees to the Licensing Tribunal

 The Special Committee to Review the Final Report of the Toronto Transition Team recommends the adoption of the following report (May 29, 1998) from the Chief Administrative Officer, subject to amending Item (i) embodied in the Section, entitled AProfessional Competencies@, contained in Appendix AA@, headed ASelection Criteria for Toronto Licensing Tribunal Members@, to read as follows:

 A(i)the ability to develop a good understanding of the mandate of the Toronto Licensing Tribunal and relevant laws;@:

 Purpose:

 To recommend qualifications and selection criteria for citizen appointments to the Licensing Tribunal.

 Financial Implications:

 There are no financial implications.

 Recommendations:

 It is recommended that:

 (1)the selection criteria presented in Appendix A be used by the Nominating Committee to select members of the Toronto Licensing Tribunal;

 (2)staff forward the list of sample interview questions developed by the Society of Ontario Adjudicators and Regulators to members of the Nominating Committee for information purposes;

 (3)the City Solicitor work with Tribunal members, once appointed, and Licensing staff in developing a training program to complement and improve the skills and strengths of Tribunal members; and

 (4)the appropriate City officials be authorized and directed to take the necessary action to give effect thereto.

 Council Reference:

 The Special Committee recommended structural changes to the Licensing Commission that would establish licensing policy as Council=s responsibility, integrate the licensing administration with the City=s administration, and reconstitute the existing Commission as a Licensing Tribunal composed of citizen members to conduct quasi-judicial hearings. When Council adopted these recommendations at its meeting on May 13, 1998, it also adopted a companion report from the Chief Administrative Officer recommending that the qualifications and selection criteria for citizen appointments to the Licensing Tribunal be reported to the next Council meeting to allow the appointments process to proceed. This report responds to Council=s request.

 Discussion:

 This report reviews how the Provincial and Federal governments make appointments to administrative agencies that perform regulatory or adjudicative functions and applies the qualifications sought for members of quasi-judicial tribunals in general to the Licensing Tribunal.

 Appointments to Provincial and Federal Administrative Agencies:

 Appointments to Provincial agencies are made by cabinet on the recommendation of the Minister to whom the agency reports. In Ontario, the Public Appointments Secretariat (PAS) supports cabinet in making appointments. Positions are rarely publicly advertised, and most do not have formal job descriptions stating requisite skills and duties. Prospective candidates are evaluated through informal consultation between the PAS and the agency chair. A similar process exists at the federal level. As a result, the desired qualifications for members of administrative tribunals have rarely been formally described at either level of government.

 Numerous reviews of administrative agencies have been undertaken at the Federal and Provincial levels. These reviews have commonly recognized that the appointments process needs to be refocused on ensuring that appointees have the necessary skills. The most recent review in Ontario was conducted by the Agency Reform Commission. It reported in April of this year on regulatory and adjudicative agencies and recommended that the government review the public appointments process to ensure that it is attracting qualified candidates, with consideration given to:

 (a)publishing functions and job requirements for each agency;

 (b)establishing selection criteria based on core competencies; and

 (c)clearly communicating to appointees the expectations of service.

 In Ontario, the Society of Ontario Regulators and Adjudicators has played an important role in improving the administrative justice system in Ontario. The Society is composed of members and executive staff of administrative agencies, and has helped to identify the skills required of tribunal members by drafting papers on performance management, rules of procedure, and member responsibilities. The Society has argued that the selection process should use formal criteria to identify the best possible candidates, and provide job descriptions to clearly communicate job expectations to tribunal members.

 At the municipal level, many of these processes have already been in place for many years. The new City of Toronto=s interim policy for citizen appointments requires that functions and skill requirements be established and communicated to interested candidates along with expectations of service. As the structure for newly formed agencies is being approved, these requirements are being established and formalized.

 Qualifications for Tribunal Members:

 The qualifications for tribunal members flow from a consideration of the role played by tribunals. Tribunals exercise a quasi-judicial function independently of other functions in order to promote impartial hearings. Tribunals are more court-like than other administrative agencies. Like courts, they are expected to determine the facts in a particular situation and apply the provisions of the legislation to the case at hand. The principle of natural justice dictates that tribunals comply with minimum standards of fair procedure before making a decision.

 The expectation of natural justice and fairness is codified in the Statutory Powers and Procedures Act. The Act applies to tribunals that, by legislation, must afford an opportunity for a hearing before exercising a statutory power of decision affecting a person=s legal rights or eligibility for a benefit or license. The Act establishes procedural requirements for the hearing, including notice provisions and rules of disclosure and evidence.

 Therefore, the ideal tribunal member combines an understanding of adjudicative procedure with knowledge of the subject matter being heard. Because tribunals apply government legislation to particular cases in a specific field of activity, tribunal members should have:

 (a)experience in the field related to the subject matter of the tribunal=s hearings;

 (b)knowledge of the legislation applied by the tribunal to the cases it hears; and

 (c)an understanding of the mandate of the agency in the context of relevant legislation.

 In addition, because tribunals are expected to follow court-like procedures, tribunal members should have:

 (a)experience with public hearings;

 (b)an understanding of natural justice as contained in the Statutory Powers and Procedures Act;

 (c)an aptitude for adjudication, including open-mindedness, sensitivity to various interests, good listening skills, an ability to analyze evidence, and sound judgement; and

 (d)the ability to write clear, well-reasoned decisions.

 Applying the Generic Selection Criteria to the Licensing Tribunal:

 The generic selection criteria mask the fact that, despite their similar functions, not all tribunals are alike. Different tribunals operate in different contexts and have unique responsibilities and procedures. As a result, different tribunals will emphasize certain selection criteria over others. Some tribunals stress knowledge of adjudicative procedure to an extent that most of their members are lawyers or judges. Other tribunals are content to let members learn adjudicative procedure on the job or through training, and look for members with experience in the business or policy field relevant to the tribunal, or with general analytic and communication skills.

 Listed below are some of the factors that account for differences between tribunals and impact the skills required of tribunal members, particularly the emphasis placed on adjudicative experience versus background in a substantive field:

 (a)The complexity of the hearing process B tribunals with more complex hearing procedures may be expected to put a greater emphasis on adjudicative experience;

 (b)The size of panels B the smaller the panel, the more necessary it is that all panel members have a good understanding of adjudicative procedure;

 (c)The need for specialized knowledge B some tribunals require scientific, medical or industry-specific knowledge to be applied in reaching decisions, while others deal with issues that can be resolved largely through common sense;

 (d)The writing skills required B some agencies produce brief oral decisions immediately after a hearing, while others produce written decisions; and

 (e)The use of mediation in addition to traditional adjudication B some agencies use pre-hearing mediation to try to avoid the need for lengthy or costly hearings, and require members with experience in alternative dispute resolution.

 In general, tribunals with complex hearing procedures, small panels, and less need for specialized knowledge will emphasize adjudicative experience, while tribunals with less complex hearing procedures and a need for specialized knowledge will focus on general skills and experience in the field.

 When considering the Licensing Tribunal relative to these factors, it becomes apparent that knowledge of adjudicative processes and administrative law would be an asset. The Statutory Powers and Procedures Act will apply to the Licensing Tribunal, and the current Licensing Commission has rules of procedure adopted under this Act that will be used by the Licensing Tribunal. With two-member panels conducting hearings, it will be important that all Tribunal members be familiar with adjudicative procedure.

 However, it is not necessary that the Licensing Tribunal stress experience in adjudicative procedures over other considerations. Members need not have legal backgrounds, as is the case in some provincial agencies with very complex hearing procedures. The Licensing Tribunal=s hearings will range from the complex to the straightforward. An aptitude for adjudication and general knowledge of the principle of natural justice is more important than having direct legal experience. Because the Licensing Tribunal will operate in the complex field of business licensing, members should be familiar with this substantive field and understand the intent and purpose of Council=s licensing policy. Members will also be required to deliver written decisions and should have good writing and communication skills.

The Chair of the Tribunal will require all of the skills of the members, but must also be able to establish and organize hearing schedules and agendas. The Chair will also be required to discuss and report on issues and decisions to a variety of audiences including Licensing staff, Committees of Council, the press, and the general public. The Chair may also be called on to represent the Licensing Tribunal at City meetings and functions as well as public meetings and possible speaking engagements. Candidates for the Chair must be willing and available for the additional responsibilities and possess excellent communication skills.

 Appendix A lists the selection criteria for Toronto Licensing Tribunal members, adapted from a report on performance management by the Society of Ontario Regulators and Adjudicators. It is recommended that the selection criteria presented in the appendix be used by the Nominating Committee to select members for the Toronto Licensing Tribunal. The Society has also prepared a list of sample interview questions that can be used to assess whether prospective candidates have the necessary qualifications to serve on a tribunal. It is recommended that staff forward this list of potential interview questions to members of the Nominating Committee for information purposes.

 Training of Tribunal Members:

 Finally, it should be recognized that no matter how careful the selection process, members will probably not possess the full range of knowledge, skills, attitudes and values required to be a good adjudicator immediately upon their appointment. Training and ongoing education in areas such as rules of evidence and procedure, statutory interpretation, natural justice, cultural sensitivity and decision-making are necessary to supplement the skills that members initially bring to the Tribunal, and to ensure that the Tribunal delivers a high level of administrative justice. It is therefore recommended that the City Solicitor work with the Tribunal members once appointed and Licensing staff in developing a training program to complement and improve the skills and strengths of Tribunal members.

 Conclusions:

 This report recommends selection criteria for appointment of Toronto Licensing Tribunal members. A selection process that focuses on the skills and knowledge required of Tribunal members will result in good appointments, good decisions, and a high standard of administrative justice.

 City Legal has been consulted in the preparation of this report.

 Contact Name:

 Robert Vandervelde, Corporate Policy and Planning B 397-9803

 CCCC

 Appendix A

 Selection Criteria for Toronto Licensing Tribunal Members

  Professional Competencies:

 (i)a good understanding of the mandate of the Toronto Licensing Tribunal and relevant laws;

 (ii)good listening skills, open-mindedness, sound judgment, and tact;

 (iii)understanding of a field related to business licensing and sensitivity to the various interests and issues;

 (iv)a good understanding of procedure, including the concepts of natural justice/fairness;

 (v)an ability to organize and analyze evidence (written and oral); and

 (vi)the ability to write a clear, well-reasoned decision that takes into account the evidence, the submissions, the law and policy.

 Personal Attributes:

 (i)a commitment to public service;

 (ii)good interpersonal skills, including the ability to work in a team;

 (iii)the ability to work under time pressures; and

 (iv)flexible work schedule.

 Additional Requirements for the Chair:

 (i)administrative skills to organize, schedule, and arrange appropriate support for hearings;

 (ii)excellent communications skills, both oral and written, to articulate issues and decisions to Licensing staff, Committees of Council, the press, and the public; and

 (iii)a willingness and ability to represent the Tribunal publicly and perform speaking engagements.

 Adapted to the Toronto Licensing Tribunal from criteria presented in ATowards Maintaining and Improving the Quality of Adjudication: SOAR Recommendations for Performance Management in Ontario=s Administrative Justice System@.