Review: David Versus Goliath

In 2012 three residents of Huntingdon, Que. complained one of the biggest transport companies on the continent, CSX Corp., was ruining their lives. CSX began shunting freight cars through the town at all hours. Locomotives idled for days at a time. The rumble of diesel engines was so disruptive it rattled windows.  Neighbours could not escape the noise inside their own homes.

One resident, Shirley O’Connor, said she begged CSX to expropriate her house. No one would buy it, and she could not afford to move. In desperation, Mrs. O’Conner filed a formal complaint with the Canadian Transportation Agency – and won. A federal panel ordered the billion-dollar corporation to find another place to switch its freight cars.

This is the poignancy of Unjust By Design, an analysis of the nation’s administrative tribunals like the Transportation Agency. These are the obscure boards that rule over pensions, labour standards, workplace compensation, landlord and tenant disputes and a million other David and Goliath battles that affect ordinary lives.

“What judicial tribunals do really matters – often desperately,” writes author Ron Ellis. Yet they are held to little independent scrutiny, they are often run by patronage hacks, and many people are indifferent to their function. As Ellis puts it, “Hardly anyone cares.”

Ellis is an Osgoode professor and a member of the bar for 50 years. Unjust by Design is an unnerving exposé of a system with sweeping powers, like the notorious Ontario Rental Housing Tribunal that evicted more than 150,000 tenants in a five-year period without any judicial scrutiny.

“What judicial tribunal members do is too important for them to be pursuing their own political or ideological goals, or dabbling in public service, or wending their way to a comfortable retirement,” writes Ellis. “Just like judges, they are engaged in serious business where the consequence of getting things wrong may be the infliction on the parties who appear before them, and on their families, of injustices and hardships of the gravest kind.”

In the U.S. adjudicators have been vetted for competence since 1946. In the U.K. tribunals have been scrutinized by a federal agency since 1958. In Australia the work of panels is similarly reviewed by statute since 1975. In Canada, nothing. Appointments are subject to patronage with little oversight of decisions or checks for competence.

“In many U.S. states, a judge’s position is an elective office, and Canadian lawyers have always been smugly dismissive of the U.S. practice of electing and/or re-electing judges,” Ellis writes; “Never do we stop and think that, in Canada, thousands of judicial tribunal adjudicators with as much power as elected  U.S. judges to decide rights disputes, inflict injustice, and cause harm are subject to a system of idiosyncratic renewal that is obviously far less principled than even an election-based system.”

Unjust by Design is unsettling. It documents a kind of back-alley justice system that functions without any of the controls we impose on courts. “A train wreck,” Ellis calls it. And it does not appear to matter unless you are a tenant, or an injured worker, or a homeowner whose lifetime equity is lost to CSX Corp.

By Holly Doan

Unjust by Design, by Ron Ellis; UBC Press; 388 pages; ISBN 9780-7748-24781; $34.95

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